State v. Giantvalley

Bunn, J. Defendant was convicted of advertising for divorce business, in violation of R. L. 1905, § 5166. He appeals from the judgment. It was established by tbe evidence that defendant, an attorney at law of this state, prepared and caused to be published as an advertisement in tbe Minneapolis Tribune tbe following: “Law Specialties, divorce and corporation matters; confidential advice; free booklet on organization and promotion of corporations; references. Address HY22 Tribune.” Defendant offered no testimony. Tbe court instructed tbe jury that, if defendant inserted and published tbe advertisement in tbe 'Tribune, be was guilty. It is contended by defendant on this appeal: (1) That tbe advertisement was not a violation of tbe statute; (2) that tbe court should have submitted to tbe jury tbe question whether tbe adver [229] tisement was a violation of the statute; (3) that the statute is void because it impaired a vested right of defendant. B. L. 1905, § 5166, reads as follows: “Every person who shall advertise, print, publish, distribute, or circulate, or cause to be advertised, printed, published, distributed or circulated, any pamphlet, card, handbill, circular, advertisement, printed paper, book, newspaper, or notice of any kind, offering to procure or obtain, or to aid in procuring or obtaining any divorce, or the severance, dissolution, or nullity of any marriage, or offering to engage, appear or act as attorney, counsel or referee in any suit for divorce, alimony, or the severance, dissolution or nullity of any marriage, either in this state or elsewhere, shall be guilty of a gross misdemeanor. * * * ” As applicable to the facts here, the statute in substance provides:: Any person who shall cause to be published any advertisement offering to procure or assist in procuring any divorce, or offering to-engage, appear or act as attorney or counsel in any suit for divorce.,, shall be guilty of a gross misdemeanor. 1. Was the advertisement that defendant caused to be published a violation of the statute ? It is true that defendant does not in so-many words offer to procure divorces or to act as attorney or counsel in divorce suits. But he was an attorney at law, and unquestionably had a motive when he paid for the publication of an advertisement which informs the public that “H722 Tribune” specializes in divorce matters. If his object was purely philanthropic,, as he seems now to urge, if he desired only to prevent marital troubles from reaching the divorce court, we would hardly look for such-stealth or such concealment of so worthy an object. There are happily many lawyers who use their best efforts to keep their clients; out of the divorce courts, but we are unable to take judicial notice-that any make this a specialty and advertise it. What would the-ordinary married man or woman with domestic difficulties understand from the advertisement? We venture to say that it would not be misunderstood. There can be no “divorce” without a suit in court. “Divorce matters” can mean nothing but matters relating to a divorce action. The lawyer or friend who endeavors to adjust [230] out of court differences between husband and wife, is not engaged in a “divorce matter.” To hold that the law is not violated unless there is a direct offer to procure a divorce, or to act as attorney in a divorce, suit, would defeat the object of the statute, and render it valueless. In effect defendant offered to act as attorney or counsel in divorce suits. We hold that his advertisement was a violation of the statute. We are not unmindful of the rule that a violation of the law is not presumed to have been intended, and if the advertisement fairly admitted of two interpretations, we would give it that interpretation which would make its publication innocent. But we think that, fairly and reasonably construed, the advertisement does not admit of the interpretation which defendant would now give it. 2. It is contended that the meaning of the advertisement should .'have been left to the jury. We cannot so hold. We are not prepared úo say that oral evidence to explain its meaning would have been ¡admissible, but clearly, in the absence of such evidence, there was -.nothing to submit to the jury. The construction of a writing, when iihe intention of the writer is to be gathered wholly from the writing itself, is for the court. It is only when extrinsic evidence is admitted to explain an ambiguous instrument, and such evidence is •conflicting, that the question should be submitted to the jury. 3 dDunnell, Minn. Digest, § 9709 and cases cited. T. R. Foley Co. v. McKinley, 114 Minn. 271, 131 N. W. 316. The rule is too well settled to admit of doubt. It applies in criminal cases as well as civil. State v. Fellows, 98 Minn. 179, 107 N. W. 542, 108 N. W. 825; Dotson v. State, 88 Ala. 208, 7 South. 259; State v. Delong, 12 Iowa, 453; State v. Looke, 7 Ore. 54; State v. Patterson, 68 Me. 473; State v. Williams, 32 S. C. 123, 10 S. E. 876. 3. It is argued that, because defendant was admitted to the bar of Minnesota before the statute was enacted, the law deprived him of a vested right to advertise that he was a specialist in divorce matters, and is therefore unconstitutional. Granting that defendant’s license to practise his profession give him a right to advertise his proficiency in any branch of it, such right was subject to regulation. The legislature decided that advertising for divorce business was [231] contrary to public policy, and certainly tbe decision was justified. Nights of property far more valuable than any right defendant may have had to advertise his calling, have been obliged to yield to considerations of public health, safety and morals. .We hold that the statute is valid. Order affirmed.