Hulbert v. Mybeck
| Decision Date | 24 November 1942 |
| Docket Number | 27722. |
| Citation | 44 N.E.2d 830,220 Ind. 530 |
| Parties | HULBERT v. MYBECK. |
| Court | Indiana Supreme Court |
Appeal from Lake Circuit Court; Otto J. Bruce Judge.
Henry G. Doherty, of East Gary, and Abe S. Hyman, of Gary, for appellant.
George E. Hershman, Russell A. Nixon, and Samuel F Sirois, all of Crown Point, for appellee.
This is an action by the appellant, a practicing attorney at law, on behalf of himself and all of the members of the Gary Bar Association, seeking to enjoin the defendant, who is clerk of the courts of Lake County and who is not admitted to practice law before the courts of this state, from performing certain acts alleged to constitute the practice of law. The acts complained of involve gratuitous services in assisting persons in establishing the time and place of their birth where the records are incomplete. A temporary injunction was denied, from which ruling this appeal is perfected.
An examination of the record discloses that we need not go into the question of whether the acts complained of constitute the practice of law.
By statutory enactment it is made a misdemeanor to practice law without having been admitted to practice by the courts. Admission to practice has the effect of licensing the person admitted to practice law, and the effect is the same as under the regulations requiring a license to practice the other professions or to engage in certain occupations. It is clear beyond controversy that all laws restricting the practice of a profession or business avoid unconstitutionality only upon the theory that they are a protection to the public. In denying the right to relief by injunction to a physician complaining of one charged with practicing medicine without a license, the court said in Merz v. Murchison, 1908, 11 Ohio Cir.Ct.,N.S., 458, 460:
'The plaintiff relies rather on what he earnestly urges is a property right to practice medicine and surgery conferred on him by his statutory license, and an interference with that property right by the unlawful competition of a person unlicensed.
In Land Title Abstract & Trust Co. v. Dworken et al., 1934, 129 Ohio St. 23, 35, 193 N.E. 650, 655, the Supreme Court of Ohio sustained the right of a practicing lawyer to maintain an injunction suit on behalf of himself and the other members of the bar to enjoin the illegal practice of law. The decision was by a divided court. The case above quoted from was not noticed in the opinion, which seems to have been largely influenced by Unger et al. v. Landlords' Management Corporation, 1933, 114 N.J.Eq. 68, 168 A. 229. It is said in the opinion: 'It is quite generally held that the right to practice law conferred by the state is a special privilege in the nature of a franchise, and that the holder thereof may be protected from the invasion of the right thus vested in him.' [129 Ohio St. 23, 193 N.E. 655.] But, as pointed out in Merz v. Murchison, supra, the provision for a license was not intended to confer a special privilege upon the practioner, but to protect the public. In the New Jersey case it is said (pages 69, 70 of 114 N.J.Eq., page 230 of 168 A.):
'In this state, the right to practice law is conferred by letters patent, issued under the great seal of the state by its chief executive. In re Branch, supra [70 N.J.L. 537, 57 A 431]. This has been the custom from the very beginning of the province of New Jersey. In re Hahn, supra [85 N.J.Eq. 510, 96 A. 589, Ann.Cas.1918B, 830]. So that attorneys at law in New Jersey are the holders of a franchise granted by the state, through the Governor, by letters patent, by...
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