In re Contempt Proceedings of Eastern Idaho Loan & Trust Co.

• Decision Date: 01 May 1930
• Docket Number: 5532
• Citation: 49 Idaho 280,288 P. 157
• Court: Idaho Supreme Court
• Parties: In re Contempt Proceedings of EASTERN IDAHO LOAN & TRUST COMPANY, a Corporation, and W. L. SHATTUCK; JESS HAWLEY, Petitioner

288 P. 157

49 Idaho 280

In re Contempt Proceedings of EASTERN IDAHO LOAN & TRUST COMPANY, a Corporation, and W. L. SHATTUCK; JESS HAWLEY, Petitioner

No. 5532

Supreme Court of Idaho

May 1, 1930

CORPORATIONS-PRACTICE OF LAW-CONTEMPT OF COURT-PLEADING-PETITION, SUFFICIENCY OF.

1. Trust company holding itself out as qualified to draft wills and trust declarations held illegally representing itself as qualified to practice law. (Laws 1923, chap. 211, sec. 17, as amended by Laws 1925, chap. 89, sec. 6; C. S., sec. 6571, as amended by Laws 1929, chap. 63, sec. 3; Laws 1929, chap. 192 sec. 2 (f) (g) (h) (k).

2. Allegations on information and belief of instances wherein trust company practiced law contrary to statutes, being insufficiently pleaded, were not admitted by demurrer (Laws 1923, chap. 211, sec. 17, as amended by Laws 1925, chap. 89 sec. 6; C. S., sec. 6571, as amended by Laws 1929, chap. 63 sec. 3).

3. Allegation on information and belief that trust company had practiced law held insufficient to support contempt proceeding for practicing law without license (Laws 1923 chap. 211, sec. 17, as amended by Laws 1925, chap. 89, sec. 6; C. S., sec. 6571, as amended by Laws 1929, chap. 63, sec. 3).

Original proceedings on petition for order to show cause why the Eastern Idaho Loan & Trust Company and W. L. Shattuck should not be punished for contempt of court. Defendant's demurrer overruled.

Demurrer overruled.

O. A. Johannesen, for Defendants.

The defendants have interposed demurrers to the petition and affidavit of the complainants. The affidavit cites three particular items, all of which consist of advertising, in the nature of window display, calender and booklet, by reason of which the defendants are accused of practicing law. The balance of the accusation is all based upon information and belief. This court has held, as a general proposition of law, that: "An allegation in a complaint that 'defendant is informed and believes' certain facts without alleging on information and belief that those facts exist, is not sufficient allegation of any issuable fact." (Swank v. Sweetwater Irr. etc. Co., 15 Idaho 353, 98 P. 297.) But in the present case, we are dealing with a more particular and specialized type of a case, to wit, contempt. The rule is still more stringent. In a majority of the jurisdictions, the affidavit, filed as a basis of a contempt proceeding, and which contempt is not committed in the presence of the court and therefore constructive contempt, must state with positive and unequivocal knowledge, the facts alleged. If such an affidavit is made on information and belief, even though it be alleged, that the facts are alleged upon such information and belief, it is insufficient.

"That an affidavit that the affiant is informed and believes that defendant is violating a certain order of the court is not sufficient to confer jurisdiction." (State v. Conn, 37 Ore. 596, 62 P. 289.)

"An affidavit upon information and belief is insufficient upon which to base constructive contempt proceedings, and the court acquires no jurisdiction thereunder to issue an attachment for contempt." (State v. Newton, 16 N.D. 151, 14 Ann. Cas. 1035, 112 N.W. 52; note, 14 Ann. Cas. 1042.)

J. H. Andersen, E. A. Owen, Charles W. Sandles, J. M. Lampert, Wm. M. Morgan and Jess Hawley, for Petitioner.

An affidavit in a contempt case is not invalidating because some statements are made on information and belief where sufficient facts are positively stated. (Davidson v. Munsey, 29 Utah 181, 80 P. 743; Jordan v. Circuit Court, 69 Iowa 177, 28 N.W. 548.)

LEE J. Givens, C. J., and Budge, Varian and McNaughton, JJ., concurring, GIVENS, C. J., Concurring Specially.

OPINION

LEE, J.

This is a proceeding instituted by direction of the Board of Bar Commissioners of the state of Idaho for the purpose of securing an order requiring Eastern Idaho Loan & Trust Company, a corporation, and its president, W. L. Shattuck, to show cause why they and each of them should not be punished for contempt of court, in that they are practicing law and holding themselves out as qualified to practice law therein, without either of them having been admitted to practice by the supreme court of the state of Idaho, and without paying the license fees now prescribed by law for the practice of law.

The petition charges: "That for over a year last past the said corporation and the said W. L. Shattuck pretending to act for it as its President have represented themselves as learned in law, and particularly in the preparation of wills and declarations of trust, and have solicited by various types of advertisements that they are so competent and able, and have at various times advised persons desiring to make a disposition of their property by will or by trust as to the law of wills and trusts." As specific instances, it is alleged that the corporation had a sign on its window, reciting in part:

"EASTERN IDAHO LOAN & TRUST COMPANY

TOTAL ASSETS $ 500,000

W. L. SHATTUCK, Mgr.

. . . . WILLS, TRUSTS, GUARDIANS, ADMINISTRATOR, ESCROW AGREEMENTS."

That the corporation and W. L. Shattuck have published and caused to be generally circulated in Idaho Falls and territory adjoining a calendar on which is the following printed data:

"EASTERN IDAHO LOAN & TRUST COMPANY.

INVESTMENT BANKERS.

Park Ave. and B St. Idaho Falls, Idaho.

. . . . We make a specialty of Drawing Contracts, Deeds and Mortgages. . . .

HAVE YOU MADE YOUR WILL AND PROVIDED FOR THE PROPER HANDLING OF YOUR ESTATE AFTER YOUR DEATH?

It will pay you to see us about this important matter. We can help you arrange your affairs so as to save your loved ones expenses and annoyance after your death. Don't defer till after your death what you should do while alive."

That the said defendants have also secured the publication of a pamphlet entitled:

"HOW TO CONSERVE YOUR ESTATE,"

and have distributed the same to a large number of persons in Idaho Falls and surrounding territory, in the introductory part of which pamphlet appears:

"We make a business of advising in all such matters, and are specialists in drawing trust agreements, Declarations of trust and wills. We make no charge for consultations. Come and see us if interested."

And that in the body of said pamphlet it was announced:

"The Eastern Idaho Loan & Trust Company is a specialist in the matter of drawing trust agreements, Declarations of Trust and Wills, and in the management of Lands, securities, and other properties comprising Estates. It has every facility for doing this with speed and accuracy and in the safest, cheapest and best manner."

By these statements, petitioner avers, the said corporation and the said W. L. Shattuck "hold themselves out as capable of practising law, and solicit employment therefor." Following these, are several allegations made on petitioner's information and belief of specific instances where the defendants drew wills and other papers, charging and receiving a fee from the person served in each instance. Defendants demurred generally and on the ground of uncertainty.

First, they urged that the statute inhibits only activities in courts of record, and, second, that they are not engaged in the practice of law as the term has been understood by our law-making body. In support of their first contention, they cite C. S. 6571 providing:

"If any person shall practise law in any court, except a justice's court, without having received a license as attorney and counselor, he is guilty of a contempt of court."

Evidently with the direct purpose of remedying a situation made possible by this section, the legislature of 1923 enacted the following:

"If any person shall, without having become duly licensed to practise, or whose license to practise shall have expired either by disbarment, failure to pay his license fee, or otherwise, practise or assume to act or hold himself out to the public as a person qualified to practise or carry on the calling of a lawyer, he shall be guilty of an offense under this act, and on conviction thereof be fined not to exceed five hundred dollars, or be imprisoned for a period of not to exceed six months, or both. (Chap. 211, sec. 17.)"

Deeming further strengthening necessary, the succeeding Session of 1925 amended this enactment to read:

"If any person shall, without having become duly admitted and licensed to practise law within this state or whose right or license to practise therein shall have terminated either by disbarment, suspension, failure to pay his license or otherwise, practise or assume to act or hold himself out to the public as a person qualified to practise or carry on the calling of a lawyer within this state, he shall be guilty of an offense under this Act and on conviction thereof be fined not to exceed Five Hundred Dollars, or be imprisoned for a period of not to exceed six months, or both, and if he shall have been admitted to practice law he shall in addition be subject to suspension under the proceedings provided by this Act. (Chap. 89, sec. 6.)"

And to make precaution doubly sure, the Session of 1929 went back and amended C. S. 6571 which as amended now reads as follows:

"If any person shall practice law . . . . or hold himself out as qualified to practice law in this state without having been admitted to practice therein by the Supreme Court and...