Ex Parte McCloskey

PRENDERGAST, Judge. This habeas corpus proceeding was instituted to test the validity of our barratry statute. Belator contends it is void and unconstitutional on these grounds, briefly stated: 1. Because so far as it relates to persons who are not attorneys, its provisions are so indefinitely framed and are of such doubtful construction as to he inoperative under article 6, Penal Code. 2. Because, as claims for personal injuries, and all other dioses in action, are property, and assignable, the right to solicit their purchase, and to seek employment to either collect or purchase them, is a lawful *533 business, and all persons have a right to engage therein, and, therefore, said law is void because in violation of sections 3 and 19, article 1, of our Constitution. 3. Because it is in conflict with section 1 of the Fourteenth Amendment to the United States Constitution, in that it is class legislation, permitting the adjustment of all personal property except claims and debts, and denies to him the equal protection of the law. The statute so attacked is the Act of March 29, 1917, page 336, the caption of which as corrected by the Act approved March 29, 1917, page 497, is: “An Act to amend article 421 of the Penal Code of the State of Texas, to further define ‘barratry5 so as to include the fomenting of 'litigation for profit and by persons in addition to attorneys at law by soliciting employment or advancing money or other thing of value to claimants or to the parties to litigations in order to procure employment, or who practice law without license. “Be it enacted by the Legislature of the State of Texas: “Section 1. That article 421 of the Penal Code be, and is hereby amended so as to hereafter read as follows: “‘Article 421. (a) If any person shall wilfully instigate, maintain, excite, prosecute or encourage the bringing of any suit or suits at law or equity in any court of this State in which such person has no interest, for his own profit or with the intent to distress or harass the defendant therein; (b) or shall wilfully bring or prosecute any false suit or suits at law or equity, of his own, for his own profit or with the intent to distress or harass the defendant therein: (c) or shall wilfully instigate, maintain, excite, prosecute or encourage the bringing or presentation of any claim in which such person has no interest, for his own profit or with the intent to distress or harass the person against whom such claim is brought or prosecuted; (d) or shall seek to obtain employment in any claim, to prosecute, defend, present or collect the same by means of personal solicitation of such employment, or by procuring another to solicit for him-employment in such claim; (e) or who shall, by himself or another, seek or obtain such employment by giving, directly or indirectly, to the person from whom the employment is sought money or other thing of value; (f) or who shall, directly or indirectly, pay the debts or liabilities of the person from whom such employment is sought; (g) or who shall loan or promise to give, loan or otherwise grant money or other valuable thing to the person from whom such employment is sought, before such employment, whether the same be done directly by him or through another; (h) or if any attorney at law shall seek or obtain employment in any suit or case at law, or in equity, to prosecute or defend the same by means of personal solicitation of such employment, or by procuring another to *534 solicit for him employment in such cases; (i) or .who shall, by himself or an'other, seek to obtain such employment by giving directly or indirectly to the person from whom employment is sought money or other thing of value; (j) or who shall directly or indirectly pay the debts or liabilities of the person from whom such employment is sought; (k) or who shall loan or promise to give, loan or otherwise grant money or other valuable thing to the person from whom such employment is sought, before such employment, in order to induce such employment, whether the same shall be done directly by him or through another, shall be deemed guilty of barratry, and shall upon conviction be punished by fine in any sum not to exceed five hundred ($500) dollars, and may in addition thereto be imprisoned in the county jail not exceeding three months; provided, that the penalties hereinbefore prescribed shall apply not only to attorneys at law, but to any other persons who may be guilty of any of the things set forth in the foregoing provisions' of this Act. The term attorney shall include counsel at law; and any attorney at law violating any of the provisions of this law shall in addition to the penalty hereinabove provided, forfeit his right to practice law in this State, and shall be subject to have his license revoked and be disbarred in the manner provided by law for dishonorable conduct or malpractice, whether he has been convicted for violating this law or not/ "Sec. 2. The evils sought to be remedied by this Act being such as to prevent amicable and just settlements of claims and disputes between parties and interfere with the due administration of justice in the courts, an emergency and an imperative public necessity exists that requires that the constitutional rule requiring bills to be read on three several days be suspended, and that this Act shall take effect from and after its passage, and it is so enacted.” We have subdivided said Act by letters a, b, c, and so on, so that what is made an offense may be more readily seen in the discussion. These subdivisions are not so designated in the Act itself. The complaint and information herein was in two counts. The first avers that on September 23, 1917: "One Gus Eote and one B. Eichardson were traveling and riding in Bexar County, Texas, upon a public road in said county, in two different automobiles, which were going in opposite directions; that through the carelessness and negligence of the said Gus Eote the said two automobiles then and there collided; that by reason of the said collision of said two automobiles the said B. Eichardson received divers and sundry serious injuries, whereby and on account thereof the said B. Eichardson had a claim and cause of action for damages against the said Gus Eote, by reason thereof; that thereafter, towit: on the 25th day of September, A. D. 1917, Frank P. McCloskey, who was not then and there an attorney at law, having learned of the collision of *535 said two automobiles, as aforesaid, and of the injuries received thereby, by the said B. Richardson, and of the existence of the claim and cause of action arising thereby in favor of the said B. Richardson against the said Gus Rote, for damages on account of the personal injuries aforesaid, received by him, the said B. Richardson, as aforesaid, the said Prank P. McCloskey, in the County of Bexar and State of Texas, on the 25th day of Septembr, A. D. 1917, did see the said B. Richardson and did then and there seek to obtain employment from the said B. Richardson in said claim aforesaid, against the said Gus Rote, to prosecute and to present and collect the same by means of personal solicitation of such employment from and by the said B. Richardson aforesaid, contrary to the statute in such case made and provided and against the peace and dignity of the State.” The second avers: “That heretofore, towit: Jack W. Weal and Jack C. Weal were doing business in the city of San Antonio, Bexar county, State of Texas, as co-partners, under the firm name of Jack W. Weal So Son; that among other things, the said Jack W. Weal So Son were engaged in the business of painting vehicles and buggies; that on June 23, A. D. 1917, one Edward Dwyer did employ the said Jack W. Weal So Son to paint a buggy owned by him, the said Edward Dwyer, whereby the said Edward Dwyer became justly indebted therefor to the said Jack W. Weal So Son in the sum of ten dollars and fifty cents ($10.50); that the said Edward Dwyer had never paid said sum of money to the said Jack W. Weal & Son, but still owes the said sum therefor to them; that Prank P. McCloskey, who was not then and there an attorney at law, having learned of said transaction, and having learned that the said Edward Dwyer was so indebted as above stated to the said Jack W. Weal & Son in the sum of ten dollars and fifty cents ($10.50), as aforesaid, he, the said Prank P. McCloskey, did, in the County of Bexar and State of Texas, on the 25th day of September, A. D. 1917, go and. see the said Jack W. Weal So Son in relation to their said claim against the said Edward Dwyer, and did then and there seek to obtain employment from said Jack W. Weal & Son in the said claim aforesaid, to prosecute, present and collect the same by means of personal solicitation of such employment from the said Jack W. Weal So Son, as aforesaid, and that in pursuance of said personal solicitation of such employment, by the said Prank P. McCloskey, the said Jack "W. Weal So Son did then and there deliver said claim aforesaid, against the said Edward Dwyer, to him, the said Prank P. McCloskey, with full power and authority to prosecute, present and collect the same, they agreeing to pay him, the said Prank P. McCloskey, a percentage of said claim aforesaid, in the event he should succeed in collecting the same from the said Edward Dwyer, as aforesaid,” concluding as the previous count. Relator was arrested and held under a proper warrant duly issued *536 upon said information. He seeks release therefrom on the grounds above stated. Barratry was an offense at common law, and is so made by statutes of many, if not all, the States. As mentioned by the State in its brief, barrators are described by 4 Blackstone, page 125, as “These pests of civil society, that are perpetually endavoring to disturb the repose of their neighbors, and officiously interfering in other men’s quarrels.” That portion of said statute under which the information was drawn is to this effect: “If any person . . . shall seek to obtain employment in any claim, to prosecute, present or collect the same by means of personal solicitation of such employment, ... he shall be deemed guilty of barratry,” fined, etc. This statute is clear and certain to the effect that it makes it an offense for any one, by personal solicitation to seek to be employed by another to prosecute or collect any claim such other may have. That one may have the right to sell his unliquidated claim for damages for a personal injury to himself, or that he has the right to assign any chose in action or other claim he may have against another, does not prevent the Legislature from making it unlawful for-an outsider-— a barrator—to do just what it did make it unlawful to do by said Act of 1917. As for that matter, the common law, in effect, forbade the sale of any chose in action. Our statute changed the common law in that respect (art. 583, R. S.) and made them assignable. Prior to 1895 a claim of damages for personal injury was not assignable. (Mc-Closkey v. San Antonio Trac. Co., 192 S. W. Rep., 1117.) The Legislature would have the power to again make all such claims unassignable, and these older laws would not control the effect of this amendment, but it would control and modify them. It seems reasonably certain that the alleged acts of relator himself were the direct cause of the Legislature amending said article 421 of the Penal Code, by said Act of 1917. Before said amendment, said Act read: “If any person shall wilfully instigate, maintain, excite, prosecute or encourage the bringing of any suit at law or equity in any court of this State in which such person.has no interest, with the intent to distress or harass the defendant therein, or shall wilfully bring or prosecute any false suit or suits at law or equity, of his own, with the intent to distress or harass the defendant therein, or, if any attorney at law shall seek or obtain employment in any suit or ease at law or in equity, to prosecute or defend the same by means of personal solicitation of such employment, or by procuring another to solicit for him employment in such cause, or who shall, by himself or another, seek or obtain such employment by giving to the person from whom the employment is sought money or other thing of value or who shall, directly or indirectly, pay the debts or liabilities of the person from whom such employment is sought, or who shall loan or promise to give, loan or other *537 wise grant money or other valuable thing to the person from whom such employment, whether the same shall be done directly by him or through another, shall be deemed guilty of barratry, and shall, upon conviction, be punished by fine in any sum not to exceed five hundred dollars, and may in addition thereto be imprisoned in the county jail not exceeding three months. The term attorney at law shall include counselor at law; and any attorney at law violating any of the provisions of this law shall, in addition to the penalty hereinbefore provided, forfeit his right to practice law in this State, and shall be subject to have his license revoked and be disbarred in the manner provided by law for dishonorable conduct or malpractice, whether he has been convicted for violating this law or not.” Shortly prior to February, 1917, the San Antonio Traction Company brought a suit for injunction against relator, setting up in detail a terrific state of facts which he had committed, which are stated by the San Antonio Court of Civil Appeals in the opinion, 192 S. W. Rep., 1117, and of which the opinion says: “The evidence introduced at the hearing is fairly summarized by the trial judge in his terse, lucid, and able opinion, as follows: ‘The testimony offered by the plaintiff tends strongly to establish the material allegations in the plaintiff's petition. It appears that about GO per cent of all the claims presented against the plaintiff are presented by the defendant. A large number of witnesses testified that they had rceived slight injuries, or been on ears which were derailed, in which they received practically no injuries; that they were not acquainted with the defendant or his agents, and that almost immediately after such accidents the defendant or his. agents approached them and solicited his employment by the claimants, urging them to present claims against the plaintiff for large damages, and that, if they would give him the claims to handle, he could obtain large sums of money for them, and urging them to exaggerate their injuries, to remain in bed as long as they could endure it, and when they went out insisted upon their using crutches when not necessary, and by various means trying to induce them to assist him in obtaining large sums of money from the plaintiffs, in many instances paying them a considerable sum of money in advance for the purpose of securing contracts of employment from them, and in some instances calling in a doctor to advise the claimants that they were seriously and permanently injured, when in truth and in fact they were only slightly injured, or not injured at all; that a great number of suits for hundreds of thousands of dollars were filed by attorneys employed by the defendant on claims presented by the defendant, and that the defendant is still continuing said business, one claim having been presented during the hearing of this application, and that he proposes to so continue the same. Although the defendant and his principal agent and assistant were present in court during the hearing of this application and heard the testimony of these witnesses, in which they were charged with the *538 things hereinabove stated, they did not take the stand to deny or refute the testimony of these witnesses.” The District Court enjoined him, from which he appealed. The Court of Civil Appeals, in an opinion rendered February 7, 1917, held that said article 431, as it then was, restricted the offense of barratry to attorneys at law, saying: “It is clear that only an attorney at law is forbidden to solicit employment in any suit himself or by an agent. "Why the Legislature left it lawful for a layman to do with impunity those things which it made unlawful to be done by an attorney at law, we are not called upon to explain. It may be the Legislature did not anticipate that a layman would develop a large and lucrative business of speculation and peculation, as Judge Gould expressed it in the brief in the Bentinck case, dealing with the accidents of transportation companies. We find that there is not in force in this State any common law nor statutory law that makes it unlawful for a person, who is not a licensed attorney, to solicit employment as agent to adjust claims, nor to solicit claimants to present claims or sue upon them.” Thereupon, the Legislature passed said amendment to cover this very omission, enacting “if any person,” etc., and further enacting therein: “that the penalties hereinbefore prescribed shall apply not only to attorneys at law, but to any other persons who may be guilty of any of the things set forth in the foregoing provisions of this Act.” The caption also makes it clear that all others, as well as attorneys, were embraced. Surely such conduct by relator, or any other, was such as would not only authorize, but require the Legislature, to make it an offense, and thereby seek to prevent in future such iniquitous conduct. But the policy of the Legislature is no concern of the courts, just so it does not, by its legislation, violate the Constitution. There is nothing in said Act contravening sections 3 or 19, article 1, of our Constitution. The Act, so far as relator is concerned, applies to all persons alike, and gives no special privileges to anyone, and denies none to him except which it denies to all others. Nor does said Act deprive him, or any other, of life, liberty, property, privilege or immunity, except by due course of the law of the land. The Act itself is due course of law. Neither is there anything in the Act smacking of class legislation. The reverse of this is true. It applies to every person who violates its provisions. It makes no class. But even if it did, the Legislature had the right, and in many instances it is its duty, to make classes in the enactment and enforcement of laws. See authorities in note 10, page 61, Harris? Texas Constitution. Relator, by his able attorneys, has briefed this case from his standpoint in a clear and forcible manner, and cited authorities claiming *539 they sustain his contentions. It, and the authorities cited by him, have had due and full consideration. Because it is the opinion of this court that said Act is valid and not unconstitutional, it is ordered that relator be remanded to the custody of the sheriff of Bexar County. Relator remanded to custody. Relator remanded to custody.