Cousins v. State

PETERS, C. J.

The indictment is in the form prescribed in the Code. It sets out an act which the law forbids, with such precision and formality as will enable the accused to controvert it by a formal and intelligible issue. This has been repeatedly settled by this court to be sufficient. The first special cause of demurrer is not sustained by the record. To “ engage in ” a thing does not necessarily require a continuance of the engagement: one act is enough. To engage in the practice of law in a single instance, without a license, is forbidden by law. Pamphlet Acts 1868, pp. 329-30, §§ 105, 111. The first ground of demurrer, then, is insufficient. And the second ground is equally unavailing. It is not necessary for the indictment to allege the price of the license. This is not a constituent of the offence. The offence is to engage in, or to' carry on, the practice of law without a license; and this is alleged in the indictment.

2. The third objection urged in the demurrer is also untenable. Since the decision^of the case of the Mayor & Aldermen of Mobile v. Yuille (3 Ala. 137), it has not been seriously doubted, in this State, that the general assembly has power to raise revenue by license on the business and occupations of the people. In that case, Judge Ormond declares: “ The decision of this court in the matter of J. L. Dorsey, 7 Porter, 295, has been referred to, as sustaining the position that the act is unconstitutional. But the ground upon which the law in that case was held to be void, was not that the legislature could not regulate the matter, and provide for the licensing attorneys-at-law, but because the act was partial, and did not operate alike on all the citizens of the State. Thus, Judge Goldtetwaite holds this language: ‘As the Constitution is silent with respect to the pursuits of business or pleasure, the general assembly has the-power to prescribe any qualification, not inconsistent with the rule that equality of right must be preserved; in other words, that any citizen may lawfully do what is permitted to any other. It rests with the legislative power to prescribe the conditions on which any avocation or calling shall be pursued, so that the door is closed to none; and there seems to be no other limit to their discretion, than the one which arises from the first section of the bill of rights referred to.’ ” 3 Ala. 140.

In the case above cited, Yuille was a baker in the city of Mobile, and he violated an ordinance of the city government, controlling the weight of his bread sold to citizens of the city. He was sued under the ordinance, and fined twenty dollars; and he appealed from that judgment to this court. Here, the chief question discussed was, the- power of the general assembly to control and prescribe the conditions on which any avocation or calling shall be pursued ; and it was settled, that this power is. absolute, if the control exercised is imposed on all alike. This-, was in 1841. Since that time, this power has been constantly-exercised. Under the present revenue laws, the occupations, which are regulated by a license are between thirty and forty in number. Pamphlet Acts 1868, pp. 330-33, §§ 112, 114, 115. If the power fails as to one occupation, it fails as to all. This, has never been seriously contended since the decision in the-case of Yuille, above quoted.

But it is contended, that the lawyer alone is exempted from this power of regulation by the general assembly. This exemption he derives from the privilege to practise his profession at all, dependent upon his license as an attorney-at-law. In the technical sense of the word, the sense in which it is used in the statute, he is no lawyer without a lawyer’s license to confer that privilege upon him. The license of an attorney-at-law creates his occupation simply. If he does not engage in its practice, he is not bound to pay the license demanded by the statute. If he does, then he must do so under the law which prescribes the conditions upon which the occupation) may be engaged in, or carried on. There is nothing particularly sacred-in the profession or business of a lawyer, which puts him above, the legislative power to place on his shoulders his just share of the necessary burdens of the State. If his share of this particular burden is unequal, and he complains of it for this reason, it will be removed ; but, without this, he has no more right to avoid his duty, than the tobacco dealer, the peddler, or the citizen who publishes a newspaper, or bakes bread. The right to regulate the property and the avocations of its citizens by the State is sovereign, and it should neither be abrogated nor abandoned.

It is the sacred duty of the citizen to obey the laws of the State. A failure or refusal to do this is “ against the peace and dignity of the State.” It is a defiance of the sovereign power. Such conduct has all the elements of crime, if wilfully adhered to ; and this justifies the State in classing it with misdemeanors. There can be, I think, no doubt of the authority of the State so to treat it, and to enforce obedience by indictment and the infliction of penalties by way of punishment. That has been done in this case. When the grade of punishment is fixed by law, the courts can neither fall below it, nor transcend it. 47 Ala. 47.

The punishment in this case is a fine three times the value of the license required by law, and the court should inflict it. In this prosecution, the fine was sixty dollars, under the act of December 81, 1868, which fixed the price of the license at twenty dollars. But this clause of the act has been since repealed, and the price of a license is now ten dollars. Pamphlet Acts 1870-71, p. 7. This would make the fine thirty dollars, which was the amount of the fine imposed in the court below. This was correct. The judgment is, therefore, affirmed.