MCCLOSKEY
v.
TOBIN, SHERIFF OF BEXAR COUNTY, TEXAS
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Texas arrested McCloskey for soliciting employment to collect claims in violation of a state statute that prohibited any person from seeking to obtain employment in claims through personal solicitation, and McCloskey challenged the statute as violating his Fourteenth Amendment rights to liberty, property, and equal protection. The Supreme Court affirmed the statute's constitutionality, holding that prohibiting solicitation of legal claims constitutes a reasonable regulation rather than a prohibition of the business itself, and that such regulation properly addresses the historic evils of barratry and champerty that English common law long sought to prevent.
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Mr. Justice Brandéis delivered the opinion of the. court.
Article 421 of.the Penal Code of Texas defined,, with much detail, the offence of barratry. In McCloskey v. San Antonio Traction Co., 192 S. W. Rep. 1116 (Texas), a decree for an injunction restraining the plaintiff in error from pursuing the practice of fomenting and adjusting claims was reversed on the ground that this section had superseded the common law offence of barratry and that by the Code “only an attorney at law is forbidden to solicit employment in any suit himself or by an agent.” Article 421 was then amended (Act of March 29, 1917, c. 133) so as to apply to any person who' “shall seek to ob tain employment in any claim, to prosecute, defend, present or collect the same by means of personal solicitation of such employment . . .” Thereafter McCloskey was arrested on an information which charged him with soliciting employment to collect two claims, one for personal injuries, the other for painting a buggy. He applied for a writ of habeas corpas which was denied both by the County Court and the Court of Criminal Appeals. The case comes here under § 237 of the Judicial Code, McCloskey having claimed below as here, that the act under which he was arrested violates rights guaranteed him by the Fourteenth Amendment.
The contention is, that since the State had made causes of action in tort as well as in contract assignable, Galveston &c. Ry. Co. v. Ginther, 96 Texas, 295, they had become an article of commerce; that the business of obtaining adjustment of claims is not inherently evil; and that, therefore, while regulation was permissible, prohibition of the business violates rights of liberty and property and denies equal protection of the laws. The contention may be answered briefly. To prohibit solicitation is to regulate the business, not to prohibit it. Compare Brazee v. Michigan, 241 U. S. 340. The evil against which the regulation is directed is one from which the English law has long sought to protect the community through proceedings for barratry and champerty. Co. Litt. p. 368 (Day’s Edition, 1812, vol. 2, § 701 [368, b.]); 1 Hawkins Pleas of the Crown, 6th ed., 524; Peck v. Heurich, 167 U. S. 624, 630. Regulation which aims to bring the conduct of the business into harmony with ethical, practice of the legal profession, to which it is necessarily related, is obviously reasonable. Ford v. Munroe, 144 S. W. Rep. 349 (Texas). The statute is not open to the objections urged against it.
Affirmed.
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State of Fla. ex rel. John Nuveen v. Greer, 88 Fla. 249 (Fla. 1924)…S. 444, 44 Sup. Ct. Rep. 197; 12 C. J. 990; 6 R. C. L. 332; 227 U. S. 150; Fleming v. [*266] Fleming, 264 U. S. 29, 44 Sup. Ct. Rep. 246. See also, Milwaukee Electric Ry. & Light Co. v. State of Wisconsin ex rel. City of Milwaukee, 252 U. S. 100, 40 Sup. Ct. Rep. 306, as to equal protection of the laws. Yet rights acquired under a statute while it was judicially held to be valid, were legally acquired as the law was then authoritatively interpreted, and such rights may be protected by the organic provision secur…
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Larson v. Lesser, 106 So. 2d 188 (Fla. 1958)…gnizes as being perfectly legitimate. In other words there appears to be no rational relationship between the demands of the public welfare and the restraint imposed by the act. We distinguish the instant case from McCloskey v. Tobin, 252 U.S. 107, 40 Sup.Ct. 306, 64 L.Ed. 481, which involved a statute of the State of Texas making it unlawful for a person to seek employment to prosecute, defend, present or collect any claim by solicitation. Vernon’s Annotated Penal Code, art. 430. The evil obviously sought t…1 / 3
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Nebbia v. New York, 291 U.S. 502 (U.S. 1934)…arke v. Deckebach, 274 U.S. 392; the conduct, of billiard and pool rooms by anyone, Murphy v. California, 225 U.S. 623; the sale of liquor, Mugler v. Kansas, 123 U.S. 623; the business of soliciting claims by one not an attorney, McCloskey v. Tobin, 252 U.S. 107; manufacture or sale of oleomargarine, Powell v. Pennsylvania, 127 U.S. 678; hawking and peddling of drugs or medicines, Baccus v. Louisiana, 232 U.S. 334; forbidding any other than a corporation to engage in the business of receiving deposits, Dill…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brazee v. People of the State of Mich., 241 U.S. 340 (U.S. 1916)
- Peck v. Heurich, 167 U.S. 624 (U.S. 1897)