Kelley v. Boyne

• Decision Date: 06 June 1927
• Docket Number: Motion No. 258.
• Citation: 214 N.W. 316,239 Mich. 204
• Parties: KELLEY v. BOYNE, Judge.
• Court: Michigan Supreme Court

239 Mich. 204

214 N.W. 316

KELLEY

v.BOYNE, Judge. ^*

Motion No. 258.

Supreme Court of Michigan.

June 6, 1927.

Original Mandamus by Joseph A. Kelley against John A. Boyne, Judge of the Recorder's Court. Writ granted.

Argued before the Entire Bench.Andrew B. Dougherty, Atty. Gen., and Robert M. Toms, Pros. Atty., and Valois E. Crossley, Asst. Pros. Atty., both of Detroit, for petitioner.

M. F. McDonald, of Detroit (Arthur Jones, of Detroit, of consel), for respondent.

STEERE, J.

Petition for mandamus herein shows that on February 17, 1926, the prosecuting attorney of Wayne county made written recommendation to the recorder's court of the city of Detroit for issuance of a warrant to arrest one John T. McNamara for having solicited plaintiff, who had been injured in an automobile accident, to employ him in making a claim for damages, in violation of Act No. 280 of the Public Acts of 1925, entitled:

‘An act to prohibit the soliciting of personal injury claims and making illegal the solicitation thereof and providing a penalty for the violation of this act.’

Plaintiff thereupon presented to Judge Boyne of said court, defendant herein then sitting as magistrate, a complaint in writing properly charging McNamara with violation of said act on February 16, 1926, to the truth of which he was duly sworn by defendant. He then tendered a warrant prepared pursuant to the allegations of said complaint for the arrest of McNamara, requesting defendant to sign and issue the same in his official capacity. This he refused to do, on the ground that said act was unconstitutional. It reads as follows:

‘Section 1. It shall be unlawful for any person, firm, copartnership, association or corporation or for the officers, agents, servants, or employees of any such person, firm, copartnership, association or corporation, directly or indirectly, individually or by agent, servant or employee to solicit, any person injured as result of an accident, his administrator, executor, heirs or assigns, for the purpose of representing such person in making claim for damages or prosecuting any action or causes of action arising out of any personal injury claim against any other person, firm or corporation, and any contract entered into as a result of such solicitation shall be void: Provided, however, that nothing herein shall affect a contract entered into by any person, firm or corporation with an attorney duly admitted to practice law in this state.

‘Sec. 2. Any person violating any of the provisions of this act shall be deemed to be guilty of a misdemeanor and upon conviction by a court of competent jurisdiction shall be liable to a fine not exceeding five hundred dollars or imprisonment in the county jail not exceeding ninety days, or both such fine and imprisonment in the discretion of the court.’

Application of plaintiff was thereafter presented to this court by the prosecuting attorney of Wayne county for a writ of mandamus requiring defendant to issue the warrant applied for. Order to show cause was granted. Return was made by defendant admitting the allegations in said petition, stating as reasons for such refusal that the act is unconstitutional because not a valid exercise of the police power, has no relation to public health, safety, morals, or welfare, is unjustifiable class legislation discriminating between persons soliciting claims for personal injuries and persons soliciting claims for injuries to property, although both might arise out of the same transaction, invalidates contracts secured through solicitation by others than attorneys, but does, not declare invalid contracts solicited by the latter although it makes solicitation by either criminal, it prohibits solicitation regardless of whether or not the contracts sought to be secured are equitable and advantageous to the injured person, and denies persons similarly situated equal protection under the law.

It is conceded in the briefs of both parties that as a general proposition legitimate exercise of police power by a state is not affected by the Fourteenth Amendment of the Constitution of the United States. The issue is whether this act is a proper exercise of the police power.

Defendant's counsel urge against its validity that the right of the individual to make a business contract for his services in collecting a lawful claim is a liberty protected by the Fourteenth Amendment with which a state in the exercise of its police powers has no right to interfere except in those cases where the safety, health, morals, or general welfare of the public demands it, and the act does not point to or purport to be in the interest of any of those essentials; that the act is discriminatory class legislation without logical or legal basis, as no reasonable distinction can be found between persons engaged in collecting tort claims for personal injuries and for injuries to personal property, both of which may and often do result from the same tortious act, while the constitutional guaranty of equal protection under the law forbids placing greater restrictions or heavier burdens upon some than upon others of the same class, pursuit, or condition, citing Haynes v. Lapeer, Circuit Judge, 201 Mich. 138, 166 N. W. 938, L. R. A. 1918D, 233.

The brief of the prosecuting attorney, after stating familiar rules to the effect that all presumptions are in favor of the validity of an act, courts have consistently declined to set any fixed limitation upon subjects calling for exercise of the police power, etc., is largely devoted to a discussion of the proposition that as a matter of common knowledge and legislative cognizance solicitors for personal injury claims constitute a needless and iniquitous class of intruders inferably acting as runners up for attorneys who specialize in personal injury cases on a percentage basis, saying in part:

‘Every city and every locality has its ‘personal injury’ lawyers, and very often these are surrounded with their solicitors, henchmen, and ‘ambulance-chasers.’ The resultant exploitation of the unfortunate, in all its shocking, not to say revolting, details, is well known, at least to the legal profession, and widely known by the general public.'

Limit of judicial notice in the absence of proof in any case before the court precludes us from fully accepting or discussing certain of those allegations made off the record. Evidently ‘ambulance-chaser’ is a recognized colloquial word of our English vocabulary. It is said to have originally been applied to the unseemly activities of overzealous undertakers in too promptly soliciting contracts in their line of business; but in later years as personal injury litigation increased, and ethical restrictions on the legal profession decreased, that sinister compound word appears to have assumed in popular usage the following meaning, as defined by some lexicographers:

‘A person, either a lawyer or the agent of a lawyer, who follows...