Creditors' Serv. Corp. v. Cummings

• Decision Date: 04 February 1937
• Docket Number: No. 593.,593.
• Citation: 190 A. 2
• Parties: CREDITORS' SERVICE CORPORATION et al. v. CUMMINGS et al.
• Court: Rhode Island Supreme Court

190 A. 2

CREDITORS' SERVICE CORPORATION et al.

v. CUMMINGS et al.

No. 593.

Supreme Court of Rhode Island.

Feb. 4, 1937.

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Certified from Superior Court, Providence and Bristol Counties.

Bill of complaint by Creditors' Service Corporation and another against M. Joseph Cummings and another. The superior court certified certain constitutional questions to the Supreme Court.

The papers in the case, with the Supreme Court's decision certified thereon, ordered returned to the superior court for further proceedings.

William A. Gunning, of Providence, for petitioners.

John P. Hartigan, Atty. Gen., and John J. Cooney, 2d Asst. Atty. Gen., for respondents.

Judah C. Semonoff, of Providence, Clarence N. Woolley, of Pawtucket, and Paul R. McIntyre, and Henry B. Gardner, Jr., both of Providence, for Rhode Island Bar Association, amicus curiae.

CAPOTOSTO, Justice.

This is a bill of complaint brought by the Creditors' Service Corporation and the National Service Associates, Inc., both Rhode Island corporations, against M. Joseph Cummings, chief of division of banking and insurance, department of taxation and regulation of the State of Rhode Island, and John P. Hartigan, Attorney General of this state, praying that both respondents be permanently enjoined from enforcing the provisions of Public Laws 1935, c. 2190. The constitutionality of that chapter being challenged upon the record by the allegations in the bill of complaint, certain constitutional questions were certified to this court for determination under the provisions of General Laws 1923, c. 348, § 1.

We entertain doubt whether the proceedings as instituted in the case at bar are legally sufficient, but as neither respondent has questioned them by demurrer or motion to dismiss and further, in view of the fact that the case was fully argued by all parties before us and that some appreciable time has elapsed since those arguments and this opinion, we will make an exception under the peculiar circumstances in this case, which, however, is not to be construed as a precedent of our attitude towards similar proceedings in the future. The constitutional questions certified to us are as follows: "Is said chapter 2190 or any section thereof unconstitutional and void in that the provisions thereof are in conflict (for any reasons stated and claimed in the bill of complaint) with the rights of the complainants or either of the complainants" as guaranteed by (1) section 10, article 1, Constitution of Rhode Island, which provides that in all criminal prosecutions the accused shall not be "deprived of life, liberty, or property, unless by the judgment of his peers, or the law of the land"; or (2) section 12, article 1, Constitution of Rhode Island, which states that "no ex post facto law, or law impairing the obligation of contracts, shall be passed"; or (3) section 1, article 14 of the Amendments to the United States Constitution, generally known as the due process and equal protection section of that Constitution ?

The complainants have been engaged for a number of years in the business of collecting liquidated debts for others under the provisions of Public Laws 1931, c. 1782, entitled: "An Act Regulating the Business of Bill Collecting." This act required the complainants to pay a license fee of one hundred dollars and to furnish a surety bond in order to carry on their respective businesses.

On June 8, 1935, the respondent M. Joseph Cummings, chief of division of banking and insurance, notified the complainants that P.L. 1935, c. 2190, would go into effect on July 1, and that thereafter the provisions of the act would be enforced by his department. Following the receipt of this notice, the complainants brought the present bill of complaint.

Public Laws 1935, c. 2190 was approved April 12, 1935. Section 2 of that chapter reads: "This act shall effect July 1, 1935, and all acts and parts of acts inconsistent herewith are hereby repealed." (Italics ours.) There is an obvious omission between the words "shall" and "effect" in section 2 as actually adopted. In view of the allegation in the bill of complaint that this omission makes chapter 2190 unenforceable because of uncertainty as to when it shall take effect, we will presently consider this omission even though the question that it raises may not be strictly before us.

In the instant case, we are not concerned with any issues of fact or with the interpretation and application of an admittedly valid law. Our duty in the premises extends to a determination of the constitutional questions certified to us and then only in so far as any particular provision of chapter 2190 so questioned is germane to the real issues in the case.

This court has repeatedly held that it will not pass upon the question of the constitutionality of an act of the General Assembly that is not relevant to the case in which it is raised or where the rights of a person who attacks the constitutionality of the statute are not affected by its enforcement. Blais v. Franklin, 30 R.I. 413, 75 A. 399; Sayles v. Foley, 38 R.I. 484, 96 A. 340; Sackett v. Paine, 46 R.I. 439, 128 A. 209; State v. Church, 48 R.I. 265, 137 A. 222. The complainants have framed and discussed their claim of the unconstitutionality of chapter 2190 under two main points which they set out in their brief as follows:

"1. The defining of the practice of law by the legislature is an invasion of the judicial power of the Court.

"2. The exception from the provisions of Chapter 2190 of certain persons and corporations as provided in Clause 'B', Para. 1, 2, 5, and 7, sec. 46 is an arbitrary and unreasonable classification in violation of the equal protection of the laws as guaranteed by the Constitution of the United States of America, Amendment XIV."

We will, therefore, confine our inquiry principally to a consideration of the constitutional questions in this case as they have been presented to us by the complainants themselves.

The allegation in the bill of complaint that the omission in section 2, to which we have already referred, makes the entire act unenforceable because uncertain as to when it shall take effect, is without merit. The obvious omission of a word or words between "shall" and "effect" in that section is unfortunate but not fatal. An act of the Legislature is not to be declared invalid by reason of an accidental omission if the legislative intent can be ascertained from the context. It is quite clear to us that the Legislature intended chapter 2190, P.L.1935, to take effect on July 1, 1935. But even if we grant that the language questioned by the complainants is meaningless, the result that they claim does not necessarily follow. The portion of section 2, to which objection is made, is separate and distinct from the body of the act and is also severable from the repealing provision of that section. Under these circumstances such language may be disregarded and the act will then take effect from the date of its passage, which was April 12, 1935. 1 Lewis' Sutherland, Statutory Construction (2d Ed.) 172. Whatever view is taken as to when said chapter 2190 took effect, it is clear that the complainants were not prejudiced, especially since they received reasonable notice of the state's future attitude in the premises.

Public Laws 1935, c. 2190, is "An Act in Amendment of Sections 44, 45, 46 and 47 of Chapter 401 of the General Laws, entitled 'Of Offenses Against Public Policy,'" which deals with the unauthorized practice of the law. These sections, as amended (Pub.Laws 1935, c. 2190, § 1), when summarized, provide as follows: Section 44. No person, except a duly admitted member of the Rhode Island Bar, shall assume or hold himself out to the public or to another person as being qualified to practice law in this state; in clause C, the word "person" is defined to include corporations. Section 45. No person, except a duly admitted member of the Rhode Island Bar in good standing, shall practice law in this state. Clause B provides that: "The term 'practice law' as used in this section, in the next preceding section, and the next succeeding section, shall be deemed to mean the doing of any act for another person usually done by attorneys at law in the course of their profession, and, without limiting the generality of the foregoing, shall be deemed to include" certain acts enumerated in succeeding paragraphs, including paragraph (3), which reads: "The undertaking or acting as a representative or on behalf of another person to commence, settle, compromise, adjust or dispose of any civil or criminal case or cause of action." Clause H provides that the provisions of section 45 shall not apply to certain lay persons, subject to specific limitations definitely set out in distinct paragraphs, such as clerks of court, students in law offices, natural persons acting in fiduciary capacity, town clerks, public accountants, and certain others, in connection with their own business or that of their immediate employer.

Section 46 provides, in substance, that corporations shall not do the acts prohibited by sections 44 and 45. Clause B exempts certain designated corporations or associations from the provisions of the act in certain cases specified in separate paragraphs under that clause. The complainants call special attention to paragraphs (1), (2), (5), and (7) of this clause and section. Paragraph (1) exempts a title company when engaged in "the drawing of deeds, mortgages, and other legal instruments in or in connection with the conduct of the business of such corporation." Paragraph (2) exempts, with restrictions, a public utility corporation or insurance company when "adjusting claims against such corporation or company or those insured by such company." Paragraph (5) exempts a non-profit sharing credit corporation or association. We will have occasion to quote this paragraph in full later in this...