Bessemer Bar Ass'n v. Fitzpatrick

• Decision Date: 06 June 1940
• Docket Number: 679.,6 Div. 678
• Court: Alabama Supreme Court
• Parties: BESSEMER BAR ASS'N v. FITZPATRICK.

196 So. 733

239 Ala. 663

BESSEMER BAR ASS'N v. FITZPATRICK.

6 Div. 678, 679.

Supreme Court of Alabama

June 6, 1940

Contempt proceeding by the Bessemer Bar Association against W. D alias "Dink", Fitzpatrick. From an order or judgment denying application for rule nisi, petitioner Bessemer Bar Association, appeals and, in the alternative applies for writ of mandamus to Gardner Goodwyn, Judge Circuit Court of Jefferson County, Bessemer Division, requiring him to set aside said ruling or order and to hear said petition.

Mandamus awarded.

Horace C. Wilkinson, of Birmingham, for petitioner.

Gardner Goodwyn, of Bessemer, pro se.

THOMAS Justice.

On the 20th day of March, 1940, the Bessemer Bar Association presented a sworn information to the Honorable Gardner F. Goodwyn, Judge of the Circuit Court, Tenth Judicial Circuit of Alabama, Bessemer Division, in which W. D. Fitzpatrick was accused of separate and several contempts of that court by engaging in the unlawful practice of law. In the information it was charged that Fitzpatrick, not a regular licensed lawyer, appeared in a representative capacity for several different people, who are named, in different counts of the information, in the Municipal Court of Bessemer, as an advocate for the parties named. In other counts of the information it was charged that Fitzpatrick appeared in a representative capacity and performed an act in connection with a proceeding pending in said court. These acts are enumerated in different counts of the information, and consisted of requests for continuances of cases, requests that cases be nol prossed or dismissed; a request for a reduction of a bond; and a request that charges be reduced from a misdemeanor to an attempt to commit a misdemeanor; etc.

The information prayed the court to issue a citation to Fitzpatrick, commanding him to appear before the court on such day and date as the court might fix, and then and there to show cause, if any he had, why he should not be adjudged in contempt of court.

The circuit judge took the petition and application for a rule nisi under advisement and later entered an order in which he denied the application for a rule nisi and dismissed the petition. Birmingham Bar Association v. Phillips & Marsh et al., Ala.Sup., 196 So. 725.

The Bessemer Bar Association filed an appeal bond. The appeal is not considered. The appeal is accompanied by a petition on behalf of the Bessemer Bar Association for a mandamus to the presiding judge commanding him to hear the petition and set aside his ruling, or for this court to cite Fitzpatrick to show cause why he should not be adjudged in contempt of this court.

The application for mandamus is here considered on the information filed in and denied by the circuit court, which discloses a flagrant violation of the statutes of Alabama by the one who is sought to be made a party defendant to the petition in the circuit court, and sought a modification of expressions contained in Birmingham Bar Association v. Phillips & Marsh, Inc. et al., supra.

Statutes providing a penalty for the practice of law without a license are cumulative and do not deprive the court of its inherent power to punish for unauthorized practice by contempt proceedings in such courts that have jurisdiction in the matter. Clark v. Reardon, 231 Mo.App. 666, 104 S.W.2d 407.

It is well settled in other jurisdictions that a contempt proceeding may be initiated by a Bar Association to prevent the unlawful practice of the law. In re Brainard, 55 Idaho 153, 39 P.2d 769; In re McCallum, 186 Wash. 312, 57 P.2d 1259; In re Szendy, 244 A.D. 49, 278 N.Y.S. 199; Clark v. Reardon, supra; Clark v. Austin, 340 Mo. 467, 101 S.W.2d 977; People v. Wicks, 101 Colo. 397, 74 P.2d 665.

And it is declared that the unlawful practice before a justice of the peace is a contempt of the circuit court and of the Supreme Court. 7 Corpus Juris Secundum, Attorney and Client, page 726, § 16; Ex parte Thompson, 228 Ala. 113, 152 So. 229, 107 A.L.R. 671.

In the case of Re William T. Morse, 98 Vt. 85, 126 A. 550, 551, 36 A.L.R. 527, 530-533, it was said:

"Proceedings for contempt are of two classes, criminal and civil. While an examination of the authorities shows that the line of demarkation between the two classes is often shadowy, and does not run true, and that the learning on the question abounds with fine and superfine distinctions, the distinction supported by the weight of authorities, and which we believe to be the correct one, is that a criminal contempt is one committed directly against the authority of the court, tending to impede or interrupt its proceedings or lessen its dignity, while a civil contempt is one which operates mainly to deprive another party to a suit of some right, benefit, or remedy to which he is entitled under an order of the court. * * * In the latter case [ Hurley v. Com., 188 Mass. 443, 74 N.E. 677, 3 Ann.Cas. 757], the court, referring to criminal contempt, said: 'The punishment of such an offense is solely for the vindication of public authority and the majesty of the law.' Since criminal contempt is directed against the power and dignity of the court, private parties have little, if any, immediate interest in the proceedings for its punishment. Such is the nature of the case before us.

"There would seem to be no doubt on the facts reported but that the respondent acted, and held himself out, as an attorney. Indeed, he in effect admits as much by his explanation of the meaning of the scrawl which he used. It 'indicated and meant,' says he, acting attorney or acting as attorney. And it appears that he so acted, not in a single instance, or occasionally, but in many instances, apparently every opportunity he had, covering a considerable period of time. To the extent of his ability he was practicing law in the justice courts of this state in every sense of the word, 'acting as' attorney regularly in those courts, using the title of attorney in some instances, as we have seen, without any qualification, and in others with a claimed qualification which the commissioner disposes of by merely stating respondent's claim concerning it without any finding either way.

"It is claimed, too, that since the respondent's operations were confined to the justice courts he is not amenable to this court. But we think that if he is answerable anywhere, for the offense charged, it is to this court. He is not charged with violating a mandate of the inferior court or with misbehavior in that court, but rather with intruding into an office of this court, pretending to act under the authority and with the sanction of this court.

"It is true we have no constitutional or statutory provision on the subject, but none is necessary. Nor is it necessary to search the common law for authority, since such authority is fairly to be implied from the express power conferred upon this court in the matter of licensing attorneys. The rule of constitutional interpretation announced in M'Culloch v. Maryland, 4 Wheat. 316, 4 L.Ed. 579, that that which was reasonably appropriate and relevant to the exercise of a granted power was to be considered as accompanying the grant, has been so universally applied that it suffices merely to state it, and, as there is nothing in the inherent nature of the power to deal with contempt which causes it to be an exception to such rule, there can be no reason for refusing to apply it to that subject. * * * 'What does this implied power embrace? is thus the question. In answering, it must be borne in mind that the power rests simply upon the implication that the right has been given to do that which is essential to the execution of some other and substantive authority expressly conferred. The power is therefore but a force implied to bring into existence the conditions to which constitutional limitations apply. It is a means to an end and not the end itself. Hence it rests solely upon the right of self-preservation to enable the public powers given to be exerted.'

"Mr. Justice Johnson says in Anderson v. Dunn [6 Wheat. 204, 5 L.Ed. 242], supra: 'But if there is one maxim which necessarily rides over all others, in the practical application of government, it is, that the public functionaries must be left at liberty to exercise the powers which the people have intrusted to them. The interest and dignity of those who created them, require the exertion of the powers indispensable to the attainment of the ends of their creation. * * * On this principle it is, that courts of justice are universally acknowledged to be vested, by their very creation, with the power to impose silence, respect and decorum in their presence, and submission to their lawful mandates, and as a corollary to this proposition, to preserve themselves and their officers from the approach and insults of pollution.'

"That the express legislative grant to this court of exclusive and full authority to determine who shall practice as attorneys before the courts of this state carries with it the implied power to do whatever may be reasonably necessary to make such grant effective, even to punishing for contempt those pretending to such office, cannot be doubted. * * *"

In People v. People's Stock Yards State Bank, 344 Ill. 462, 176 N.E. 901, 906, it was said: "Respondent also asserts that, while this court has jurisdiction to entertain a proceeding to punish an unlicensed individual for appearing and practicing in this court, it has no such jurisdiction or power over one who has been guilty of unauthorized practice of law by appearing in the trial courts of this state. No doubt each trial court in this state has ample authority to punish as for contempt of that court any person who presumes to appear and act as an...