Clark v. Austin

Decision Date08 February 1937
Docket Number34481-34483
Citation101 S.W.2d 977,340 Mo. 467
PartiesBoyle G. Clark, General Chairman of the Bar Committees of the State Bar, et al., Informants, v. Edwin S. Austin. Boyle G. Clark, General Chairman of the Bar Committees of the State Bar, et al., Informants, v. P. H. Coon. Boyle G. Clark, General Chairman of the Bar Committees of the State Bar, et al., Informants, v. J. Fred Hull
CourtMissouri Supreme Court

Editorial Note:

This Pagination of this case accurately reflects the pagination of the original published, though it may appears out of sequence.

Respondents adjudged guilty of contempt of court.

Roy McKittrick, Attorney General, Franklin E. Reagan, Assistant Attorney General, Don Purteet and Victor C. Gladney for Informants; Frank E. Atwood and Paul M. Peterson of counsel.

(1) Judgment should be entered for informants on the pleadings because the facts alleged in the answers of respondents are insufficient in law to constitute any defense to the informations. (a) This court has the inherent power to define the practice of law and is not bound by any statutory enactment thereon. Sec. 11692, R. S. 1929; In re Richards, 63 S.W.2d 672; State ex rel. Sellick v Reynolds, 252 Mo. 369, 158 S.W. 671; State ex rel Johnson v. Gebhardt, 87 Mo.App. 542; People ex rel. Chicago Bar Assn. v. Motorists Assn., 354 Ill. 595, 188 N.E. 827; People ex rel. Illinois State Bar Assn. et al. v. People's Stock Yards State Bank, 344 Ill. 462, 176 N.E. 902; In re Day, 181 Ill. 73, 54 N.E. 646, 50 L. R. A. 519. (b) The admitted acts of respondents constitute the practice of law both within the meaning of the statute and the common law. Secs. 5234, 11692, R. S. 1929; Opinion of the Justices to the Senate, 343 Mass. 349; People ex rel. Ill. State Bar Assn. et al. v. People's Stock Yards State Bank, 344 Ill. 462, 176 N.E. 902; Boykin v. Hopkins, 174 Ga. 511, 162 S.E. 796; Fitchette v. Taylor, 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. (c) No one has a right to practice law in this State unless he first be licensed thereto by this court. Secs. 11692, 11693, 11695, R. S. 1929; Authorities under Point (1). (d) One practicing law in this State without first being duly licensed, is guilty of contempt of this court, regardless of whether or not he actually appears as an attorney in a court of record. People ex rel. Chicago Bar Assn. v. Motorists Assn., 354 Ill. 595, 188 N.E. 827; People ex rel. Ill. State Bar Assn. et al. v. People's Stock Yards State Bank, 344 Ill. 462, 176 N.E. 902; In re Morse, 98 Vt. 85, 126 A. 550. (e) A corporation cannot practice law or appear in court in its own behalf in propria persona. Since it can only act through the agency of natural persons, it follows that it can practice law or appear in court on its own behalf only through a licensed attorney. Therefore, it is unlawful for an agent or employee of a corporation, who is not a duly licensed attorney, to practice law or to appear in court representing or on behalf of a corporation. Sec. 11693, R. S. 1929; State ex inf. Miller v. St. Louis Union Tr. Co., 74 S.W.2d 348; Mullin-Johnson Co. v. Penn. Mut. Life Ins. Co., 9 F.Supp. 175; New Jersey Photo Engraving Co. v. Shonert & Sons, 95 N. Y. Eq. 12, 122 A. 307; Black & White Operating Co. v. Grosbart, 107 N. J. L. 163, 151 A. 630; Cary & Co. v. Satterlee & Co., 166 Minn. 507, 208 N.W. 408; In re Co-operative Law Co., 198 N.Y. 479, 92 N.E. 15, 32 L. R. A. (N. S.) 55; Authorities under Point (1).

E. C. Curfman and A. F. Harvey for respondent.

Were the conceded acts of respondent in contempt of this court? We take it that in the absence of any statutory limitation or restriction on licensing attorneys to practice law, the courts of record would have the inherent right to say who would be admitted to practice in such court and to prescribe the qualifications therefor, so that in the absence of statutory requirements, it would not be necessary to obtain a license or authority from any court in order to attend to any matter before the Public Service Commission in a representative capacity. Section 11695, R. S. 1929 is as follows: "Power to admit to practice vested in Supreme Court. -- The power to admit and license persons to practice as attorneys and counselors in the courts of record of this State, or in any of them, is hereby vested exclusively in the Supreme Court, subject to such regulations as are hereinafter provided. (R. S. 1919, 669.)" The Supreme Court can have no concern about the practice of law before boards or commissions or courts not of record because it has no power to grant license to practice law other than in courts of record. A specific power having been given is sufficient to negative all other rights. "Where a statute limits a thing to be done in a particular form, it necessarily includes in it a negative, namely that the thing shall not be done otherwise." 25 C. J. 220, note 16 (c); Heidelberg v. St. Francois County, 100 Mo. 74; State ex rel. Flickinger v. Fisher, 119 Mo. 351. That respondent is not guilty of any intentional violation of the law and is not guilty of contempt in this particular matter is clearly shown by the fact that the last amendment to the statute referring to the practice of law was enacted in 1915, without any change or enlargement of Section 11695 of the Revised Statutes of Missouri of 1929, and for twenty years it has been common practice, openly and notoriously had throughout the State, for persons not licensed to practice law to appear before boards and commissions and courts not of record, without the right so to do ever having been questioned.

Ragland, Otto & Potter and H. H. Larimore for P. H. Coon.

Carl J. Henry for Edwin S. Austin.

Frank, J. Gantt, J., concurs in separate opinion; Ellison, C. J., concurs in result in separate opinion; Hays, Tipton, Leedy and Collet, JJ., concur in result and in separate concurring opinion of Ellison, C. 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...

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