Boone v. State

• Decision Date: 14 January 1911
• Parties: BOONE v. STATE.
• Court: Alabama Supreme Court

54 So. 109

170 Ala. 57

BOONE v. STATE.

Supreme Court of Alabama

January 14, 1911

Appeal from City Court of Mobile; O. J. Semmes, Judge.

Burwell Boykin Boone was convicted of acting as attorney for a public utility corporation, while holding a municipal office, in violation of statute, and he appeals. Reversed and remanded.

Omitting the formal charging part, the indictment is as follows "(1) Burwell Boykin Boone, an officer of the city of Mobile, a municipality in this state, acted as the attorney for a public utility corporation doing business or exercising its franchise in the corporate limits of said municipality. (2) Burwell Boykin Boone, an officer of the city of Mobile, a municipality in this state, acted as the attorney for the Mobile & Ohio Railroad Company, a public utility corporation doing business or exercising a franchise in the corporate limits of said municipality. (3) Burwell Boykin Boone, an officer of the city of Mobile, a municipality in this state namely, the city attorney of said municipality, acted as the attorney for the Mobile & Ohio Railroad Company, a public utility corporation, doing business or exercising its franchise in the corporate limits of said municipality against the peace and dignity of the state of Alabama."

The cause was tried without a jury. The state introduced in evidence a written statement that the following facts are admitted by the defendant: (1) That the defendant has been employed by the Mobile & Ohio Railroad Company, a corporation organized and existing under and by virtue of the laws of the state of Alabama, as an attorney continuously since the admission of the defendant to the bar of Mobile county, in March, 1880, to September 30, 1910. Said Mobile & Ohio Railroad Company has been operating a railroad in Mobile county, Ala., for more than 60 years, and the principal office of said corporation is in the city of Mobile; that said defendant first became aware of section 6321 of the Criminal Code of Alabama of 1907 in the latter part of July 1910, and at that time he was assured by reputable counsel, a member of the bar of the Supreme Court of Alabama, that said section of the Criminal Code of Alabama, being section 6321, was unconstitutional, as it was repugnant to the fourteenth amendment to the Constitution of the United States. 2. That after July 1910, and before the finding of this indictment, said defendant acted and continued to act in the city and county of Mobile, Ala., as the attorney for the Mobile & Ohio Railroad Company and that said defendant while so acting since July, 1910, as such attorney for said Mobile & Ohio Railroad Company, a public utility corporation. was also the legal and qualified city attorney of the said city of Mobile, and as such city attorney he was an officer of the said city of Mobile, a municipal corporation organized under the laws of Alabama; that the defendant ceased to act or be in the employ as an attorney for said public utility corporation, that is, the Mobile & Ohio Railroad Company, on September 30, 1910. (3) That the employment of the said defendant as attorney for said Mobile & Ohio Railroad Company never at any time in any manner whatsoever conflicted with any business or other interests of the city of Mobile; that the defendant has been city attorney of the city of Mobile continuously since March, 1897, being elected to that office by the qualified electors of said city of Mobile, and in 1908 by the city council of the city of Mobile, to serve until October, 1910, and was again elected by said city council of the said city of Mobile as city attorney for the term beginning October 3, 1910, and ending the first Monday in October, 1912. Said defendant was elected by the qualified electors of Mobile county, Alabama, a member of the constitutional convention of Alabama of 1901, and has been a member of the bar of the Supreme Court of Alabama since July 1882, and a member of the bar of the Supreme Court of the United States since January, 1888."

Stevens & Lyons, for appellant.

Alexander M. Garber, Atty. Gen., and Thomas W. Martin, Asst. Atty. Gen., for the State.

SAYRE J.

Section 6321, Code 1907, provides that: "Any officer, alderman, or councilman of any municipality in this state who shall act as the attorney for any public utility corporation doing business or exercising its franchises in the corporate limits of the municipality, must, on conviction, be fined not less than one hundred nor more than five hundred dollars, and may also be sentenced to hard labor for not less than one nor more than three months." Appellant, having been convicted on an indictment charging a violation of this section, brings his case here for review.

Two reasons are urged why the statute is to be condemned as in conflict with the equal protection clause of the fourteenth amendment of the Constitution of the United States: (1) It discriminates against corporations, and in favor of individuals, partnerships, and other unincorporated...