Clark v. Austin

101 S.W.2d 977, 340 Mo. 467, 1937 Mo. LEXIS 490

• Court: Supreme Court of Missouri
• Decided: February 8, 1937
• Status: Published

Opinions

FRANK, J.

Original proceedings in this court to adjudge respondents in contempt of the authority of this court because of alleged illegal practice of law.

Boyle G. Clark, general chairman of the bar committees of the State, and the members of the advisory committee to the general chairman, filed separate informations against each of the respondents charging therein the specific acts constituting the alleged illegal practice of law. Each respondent filed answer to the charge made against him, and informants filed in each case a motion for judgment on the pleadings, alleging therein that each answer admitted the acts complained of in the information, and that the facts stated in avoidance thereof were not sufficient in law to constitute any defense thereto.

The three cases will be disposed of in one opinion.

The practice of law is defined by Section 11692, Revised Statutes 1929, but this court has inherent power to define and regulate the practice of law independent of any statute on the subject. The recent case of In re Richards, 333 Mo. 907, 915, 63 S. W. (2d) 672, as well as many other cases therein cited, holds that the power to define and regulate the practice of law is, in its exercise, judicial and not legislative. In the Richards case we said:

“It is not always easy to determine what objects are' naturally within the range or orbit of a particular department of government, but it will scarcely be denied that a primary object essentially within the orbit of the judicial department is that courts properly function in the administration of justice, for which purposes they were created, and in the light of judicial history they cannot long continue to do this without power to admit and disbar attorneys who from time immemorial have in a peculiar sense been regarded as their officers. Since the object sought is not naturally within the orbit of the legislative department, the power to accomplish it is in its exercise judicial and not legislative, although in the harmonious co-ordination of powers necessary to effectuate the aim and end of government it may be regulated by statutes to aid in the accomplishment of the object but not to frustrate or destroy it.”

We agree with the holding that the power to define and regulate the practice of law is, in its exercise, judicial and not legislative, but we do not agree with the further holding that the exercise of such power may be regulated by statute. If it be correct to hold that such power is judicial, then it is not correct to hold that the exercise of such power may be reasonably regulated by the Legislature, in face of the constitutional injunction that the legislative department of government shall not encroach upon the powers and functions properly belonging to the judicial department. At all times since the adoption of our Constitution, it has been the settled law of this State, that a law .enacted by the Legislature concerning a subject upon which it has authority to legislate, whether reasonable or unreasonable, if constitutional, is binding on the courts and they must follow it. In Star Square Auto Supply Co. v. Gerk, 325 Mo. 968, 997, 30 S. W. (2d) 447, 462, this court said:

“The propriety, wisdom and expediency of legislation enacted in pursuance of the police power is exclusively a matter for the Legislature. The single question which lies within the province of the judiciary for its determination is whether the Legislature, in the exercise of the police power, had exceeded the limits imposed by the Constitution, Federal or State.”

In the recent case of Vrooman v. St. Louis, 337 Mo. 933, 947, 88 S. W. (2d) 189, the rule is stated thus:

“The protection against unwise or oppressive legislation, within constitutional bounds, is by an appeal to the justice and patriotism of the representatives of the people. If this fail, the people in their sovereign capacity can correct the evil; but courts cannot assume their rights. The judiciary can only arrest the execution of a statute when it conflicts with the Constitution. It cannot run a race of opinions upon points of right, reason, and expediency! with the lawmaking power.. Any legislative act which does not encroach upon the powers apportioned to the other departments of the government,- being prima facie valid, must be enforced, unless restrictions upon the legislative authority can be pointed out in thei Constitution, and the ease shown to come within them. ”

In view of the well-settled law that any enactment of the Legislature which does not violate the Constitution is binding on the courts, a holding that the Legislature has authority to reasonably regulate the practice of law, would place it within the power of the Legislature to destroy the inherent power of the court in that behalf, by unwise or unreasonable legislation on that subject, because any law enacted on the subject, whether wise or unwise, reasonable or unreasonable, if it did not violate the Constitution, would be binding on the courts and they would be compelled to accept and follow it.

To say that a statute which unreasonably hampers the courts or unreasonably encroaches on judicial power is unconstitutional, amounts to a holding that a statute which reasonably hampers the courts, and reasonably encroaches on judicial power is not unconstitutional. A conclusive answer to such a holding is that any encroachment on judicial power, whether reasonable or unreasonable, violates the Constitution which provides, in express terms, there shall be no encroachment at all.

Article III of the Constitution of the State provides that, “The powers of government shall be divided into three distinct departments — legislative, executive and judicial — each of which shall be confided to a separate magistracy, and no person or collection of persons, charged with the exercise of powers properly belonging to one of those departments, shall exercise any power properly belonging to either of the others.”

It is clear from this constitutional provision that the three departments of government must be kept separate, and each must operate in its own sphere.

Section I of Article VI of the Constitution vests the judicial power of the State in this and other courts named in that section.

The Constitution does not, by express grant, vest the power to define and regulate the practice of law in either department of government. In the absence of an express grant of this power to either department, it must be exercised by the department to which it naturally belongs, because “it is a fundamental principle of constitutional law that each department of government, whether Federal or State, has, without any express grant, the inherent right to accomplish all objects naturally within the orbit of that department, not expressly limited by the existence of a similar power elsewhere or the express limitations in the Constitution.”' [In re Richards, 333 Mo. 907, 914, 63 S. W. (2d) 672, 675.] Speaking to a like question in State ex inf. v. Washburn, 167 Mo. 680, 691, 67 S. W. 592, this court en banc said:

“All governmental powers are in their natures either legislative, executive or judicial. The Constitution does not undertake to define what acts fall within the one class or the other, but leaves every act to be classified according to its nature, recognizing that the essentials which distinguish those that belong to one department from those that belong to the two others, are discernible to the learned mind. But in that article of the Constitution all the powers of the State government are disposed of, and every one who lawfully exercises any State governmental function is able to trace the source of his authority to one of the three departments there named. The power, whatever its character, can be exercised only by or under authority of the separate magistracy to which by the Constitution it is assigned. ’ ’

In the absence of an express grant of power to define and regulate the practice of law to either department of government, the question is, to which department does that power naturally belong?

The primary duty of courts is the administration of justice. Attorneys are officers of the court. They are, in effect, a part of the judicial system of the State. Their duties when honestly and ably performed, aid the courts in the administration of justice. Their educational and moral'qualifications should be such as to insure the conscientious and efficient performance of such duties. The practice of law is so intimately connected with the exercise of judicial power in the administration of justice, that the right to define and regulate such practice logically and naturally belongs to the judicial department.

In view of the constitutional separation of the powers- of government into three distinct departments — legislative, executive and judicial, and in view of the constitutional injunction that-neither department shall encroach upon the powers and functions properly belonging to either of the others, any effort on the part of . the Legislature to prescribe the qualifications of applicants for admission to the bar, or to define or regulate the practice of law would be an un constitutional attempt on the part of the legislative department of government to encroach upon the powers and functions properly-belonging to the judicial department. In People ex rel. Illinois State Bar Association et al. v. People’s Stock Yards State Bank, 344 Ill. 462, 470, the Supreme Court of Illinois expresses our views on the subject. We quote therefrom the following:

“Under the Constitution of this State the judicial power is vested solely in the courts. [Const. Art. 6, See. 1, and Art. 3; Missouri River Telegraph Co. v. First Nat. Bank, 74 Ill. 217; In re Day, 181 Ill. 73.] Included in this grant are all powers necessary for complete performance of the judicial functions. [State of Illinois v. Illinois Central Railroad Co., 246 Ill. 188.] Although the Constitution does not expressly confer upon this court power and jurisdiction with respect to the admission of attorneys to practice law, such power and jurisdiction are necessarily implied and are inherent in this court. [In re Day, supra.] As a part of such inherent power this court may not only determine the educational and moral qualifications of applicants for admission to the bar but may also discipline or disbar attorneys for misconduct. [People v. Chamberlain, 242 Ill. 260; People v. Czarnecki, 268 Ill. 278.] Attorneys are officers of this court and their conduct as such is subject to supervision by it. They are, in effect, a part of the judicial system of the State. [In re Day, supra; People v. Czarnecki, supra; Ex parte Secombe, 19 How. 9; Ex parte Wall, 107 U. S. 265.] The power to prescribe the qualifications which will entitle an applicant to be admitted to the bar is judicial, as is also the power to discipline or disbar attorneys for professional misconduct either in court proceedings or their relations with clients outside of court. [People v. Macauley, 230 Ill. 208; People v. Meyerovitz, 278 Id. 356.] ”

We now come to a consideration of the cases on the merits. The charges against respondents involve alleged illegal practice of law before the Public Service Commission. The informations against respondents enumerate the causes and hearings in which respondents, for a valuable consideration, appeared before the commission representing persons interested in the granting or refusal of certificates of convenience and necessity and permits to operate freight carrying motor vehicles over certain designated routes; it is charged in the' information and admitted in respondents’ answers thereto, that they were not licensed to practice law in this or any.other state; that they appeared in such hearings, prepared and filed pleadings and other documents therein, gave advice as to what facts should be established, and examined and cross-examined witnesses in the conduct of such hearings. Other facts are alleged in the information in detail, but we regard the ones we have stated sufficient for a determination of the cases.

It would be difficult to give an all-inclusive definition of the prac tice of law, and we will not attempt to do so. It will be sufficient for present purposes to say that one is engaged in the practice of law when he, for a valuable consideration, engages in the business of advising persons, firms, associations or corporations as to their rights under the law, or appears in a representative capacity as an advocate in proceedings pending or prospective, before any court, commissioner, referee, board, body, committee, or commission 'constituted by law or authorized to settle controversies, and there, in such representative capacity, performs any act or acts for the purpose of obtaining or defending the rights of their clients under the law. Otherwise stated, one who, in a representative capacity, engages in the business of advising clients as to their rights under the law, or while so engaged, performs any act or acts either in court or outside of court for that purpose,; is engaged in the practice of law. [Rhode Island Bar Association et al. v. Automobile Service Association, 55 R. I. 122; People ex rel. Illinois Bar Association et al. v. Peoples Stock Yards State Bank, supra; Fitchette v. Taylor (Minn.), 254 N. W. 910, 94 A. L. R. 356; In re Duncan, 83 S. C. 186, 65 S. E. 210, 24 L. R. A. (N. S.) 750; Boykin v. Hopkins, 174 Ga. 511, 162 S. E. 796.]

It is apparent, without discussion, that the admitted acts of respondents constitute the unauthorized practice of law.

Respondent, Coon, alleges that he was a regular employee of the Missouri Pacific Railroad Company in the capacity of assistant general freight agent; that in the hearings before the Public Service Commission, he represented said railroad in the capacity of employee a,nd freight agent, and not in the capacity of an attorney at law. The capacity in which he appeared in such hearings must be determined by the admitted acts he performed, and not by his alleged statement of the capacity in which he appeared. The law recognizes the right of natural persons to act for themselves in their own affairs, although the acts performed by them, if performed for others, would constitute the practice of law. A natural person may present h-is own case in court or elsewhere, although he is not a licensed lawyer. A corporation is not a natural person. It is an artificial entity created by law. Being an artificial entity it cannot appear or act in person. It must act in all its affairs through agents or representatives. In legal matters, it must act, if at all, through licensed attorneys. [Mullin-Johnson Company v. Pennsylvania Mutual Life Insurance Company, 9 Fed. Supp. 175; New Jersey Photo Engraving Company v. Carl Schonert & Sons, Inc., 95 N. J. Eq. 12, 122 Atl. 307; Black and White Operating Co. v. Grosbart, 107 N. J. L. 63, 151 Atl. 630; Cary & Co. v. Satterlee & Co., 166 Minn. 507, 208 N. W. 408; In re Richards, 333 Mo. 907, 63 S. W. (2d) 672.]

In the Mullin-Johnson Company case, supra, the court said:

"It is settled in California that there are certain professional occupations which a corporation is functionally incapable of engaging in, such as the practice of the law. Plaintiff corporation is not, and could not be, a member of the bar of California, whose members, under our rules, may be admitted to practice in this court. Obviously plaintiff corporation could not plead and manage its case personally, as provided in 28 U. S. C. A., section 394, nor could it manage it through an agent of its appointment who is not an attorney of the court. [Nightingale v. Oregon Cent. Ry. Co. (C. C. Or. 1873), 18 Fed. Cas. 239, No. 10264.]

“ ‘Since a corporation cannot practice law, and can only act through the agency of natural persons, it follows that it can appear in court on its own behalf only through a licensed attorney. It cannot appear by an officer of the corporation who is not an attorney, and may not even file a complaint except by an attorney,- whose authority to appear is presumed; in other words, a corporation cannot appear in propria, persona. A judgment rendered in such a proceeding is void.’ California Jurisprudence,- 1932 Supplement, ‘Practice of Law,’ p. 34, citing Bennie v. Triangle Ranch Co., 73 Colo. 586, 216 Pac. 718.”

In the New Jersey Photo Engraving Company case, supra, a corporation had filed in the chancery court a petition praying for the extension of time to' file its claim with a receiver. The petition was signed by the corporation, by an attorney in fact. The attorney in fact was not a licensed attorney at law. The court held that the corporation, being an artificial person could appear only by an attorney and dismissed the motion.

This ruling was followed in the Black & White Operating Co. ease, supra. In that Case, the corporation, through its president, sued out a writ of attachment and the court held that the corporation could not act in the attachment proceedings other than through a licensed attorney.

In the Cary & Company case, supra, the Minnesota court held that one who was not a licensed attorney could not appear in court representing the defendant, corporation, even though he held all of the stock of the corporation, for the reason that the corporation was a separate entity, an artificial' person and could not personally appear in court.

Respondent, Coon, not being a licensed lawyer, his employment by the Missouri Pacific Railroad Company in the capacity of freight agent, did not authorize him to represent the railroad in matters involving the practice of law.

Respondent, Hull, pleads that the provisions of Section 11695, Revised Statutes 1929, empowering this court to license persons to practice law in the courts of record of this State, thereby excludes its powei', to license, or require persons to be licensed to practice law except in courts of -record.

The statute invoked is not binding upon this court. Whether or not one is engaged in the practice of law depends upon the character of acts he performs and not the place where he performs them. . It follows, therefore, that if this court has inherent power to define and regulate the practice of law, acts coming within the court’s definition would constitute the practice of law regardless of the place of their performance. The power to define and regulate the practice of law being inherent in the court, no statute is necessary to authorize the exercise of such power. In the recent case of In re Sparrow, 338 Mo. 203, 90 S. W. (2d) 401, this court en banc dealt with the inherent power of the court to disbar attorneys. Hays, J., speaking for the court quoted approvingly from Weeks on Attorneys at Law, section 80, pages 140, 141, the following:

‘ ‘ The power to strike from the rolls is inherent in the court itself. No statute or rule is necessary to authorize the punishment in proper cases. . . . It is necessary for the protection of the court, the proper administration of justice, the dignity and purity of the profession, and for the public good and the protection of clients.” The Sparrow case holds that the power to disbar attorneys is inherent in the court itself, and may be exercised by the court in the absence of any statute on the subject. The Richards ease, supra, holds that such power is, in its exercise, judicial and not legislative. Our attention has also been called to Ex parte Creasy, 243 Mo. 679, 708, 148 S. W. 914, 923, and State ex rel. Selleck v. Reynolds, 252 Mo. 369, 379, 158 S. W. 671, 673, holding that the power to punish for contempt is inherent in the court. If these powers are inherent in the courts, they-are necessarily judicial powers and belong to the judicial department. The Selleek case, the Creasy case and the Richards case also hold that the inherent power of the court may be reasonably regulated by statute. To this latter holding we do not agree. It runs counter to the positive mandate of the Constitution which provides, in express terms, that no person or collection of persons, charged with the exercise of powers properly belonging to one department of government, shall exercise any power properly belonging to either of the others. As I read these cases none of them advance any constitutional authority in support of the holding that the exercise of the inherent judicial power of a court may be regulated by statute. In the case of In re Hagan, 295 Mo. 435, 442, 245 S. W. 336, this court en banc said:

“In the matter of contempt we have never gone further than to rule that as a matter of comity between the separate departments of the State Government, we would recognize reasonable restrictions imposed by the Legislature. We never have ruled that we had to recognize such legislative restrictions.”

Comity between the separate departments of government would be best prompted by strict adherence to the Constitution. Disregard of constitutional restrictions destroys the checks' and balances of one department against the other, and tends to promote discord rather than comity between the departments.

The practice of law is not confined to appearance in court in a rep-i resentative capacity as an advocate. A person may never appear in court and yet be engaged in the practice of law. One engaged in the practice of law in this State without a license authorizing him so to do, is in contempt of this court regardless of whether he appears as an attorney in this court or in any other court of record. [Rhode Island Bar Association et al. v. Automobile Service Association, supra; People ex rel. Chicago Bar Association, Relator, v. The Motorist Association of Illinois, 354 Ill. 595, 188 N. E. 827; People ex rel. Illinois State Bar Association et al. v. People’s Stock Yards State Bank, supra; In Re Morse, 98 Vt. 85, 126 Atl. 550.] The theory of above holding is that the practice of law outside of court proceedings, is a contempt of this court and punishable as such “because the wrongdoer has affronted this court by usurping a privilege solely within the power of this court, to grant.” In the case against People’s Stock Yards State Bank, supra, the Supreme Court of Illinois said:

“It is also argued that for acts outside of court which amount to unauthorized practices of law the offender cannot be punished for contempt of this or any other court. What we have said above should be sufficient to dispose of this contention. To deny the power of the court to deal with such offenders would be tantamount to a destruction ,of the power itself. Perhaps the major portion of the actual practice of law under modern conditions consists of the work of attorneys outside of any court and has nothing to do with court proceedings. [People v. Alfani, 227 N. Y. 334, 125 N. E. 671.] It is just as essential to the administration of justice and the proper protection of society that unlicensed individuals should not be permitted to prey upon the public in that sphere of the practice of law as it is' with respect to proceedings in the courts. It is no less a usurpation of the function and privilege of an attorney and an affront to the court having sole power to license attorneys, for one not licensed as such to perform the services of an attorney outside of court proceedings.”

In a separate opinion by Ellison, C. J., an attempt is made to inject into this case the question of the power of the General Assembly to enact procedural laws. That question is not an issue in this case. Obviously, therefore, anything we might say on that subject would be mere obiter. For that reason we decline to discuss the question at this time.

All of the respondents plead that they did not knowingly and unlawfully intrude themselves into the office of attorney of this or any other court. They further plead that from the date of the creation of the Public Service Commission, down to the present time, laymen have appeared before such commission in a representative capacity without objection from the commission, or anyone else; that what they did before the Public Service Commission was done in the honest belief that they had a lawful right so to do; that they did not intentionally violate any law or rule of this court, and they stand ready and willing to abide by and comply with any orders or judgments of this court in the premises. In addition, respondents, with commendr able frankness have admitted the acts performed by them in matters, pending or prospective, before the Public • Service Commission, and have made no attempt to keep the actual facts from this court. Their conduct in this behalf merits consideration, but it does not furnish a lawful excuse for engaging in the practice of law without a license authorizing them so to do.

We find that respondents were each engaged in the unauthorized-practice of law, and adjudge them in contempt of this court for so doing. It is further ordered that they each appear before this court on the first day of March, 1937, at nine o ’clock a. m., to hear and obey such further orders and judgments as the- court .may render at that time.

Gantt, J., concurs in separate opinion; Ellison, C. J., concurs in result in separate opinion; Ilays, Tipton, Leedy and Collet, JJconcur in result and in separate concurring opinion of Ellison, C. J.