In re Contempt Proceedings of Brainard, 6162
Citation | 55 Idaho 153,39 P.2d 769 |
Decision Date | 28 December 1934 |
Docket Number | 6162 |
Parties | In re Contempt Proceedings of E. C. S. BRAINARD. E. A. OWEN, as President of the Board of Bar Commissioners of the Idaho State Bar, Petitioner |
Court | United States State Supreme Court of Idaho |
ATTORNEY AND CLIENT-PRACTICE OF LAW-CONTEMPT OF COURT-STATUTES-CONSTITUTIONAL LAW.
1. Former probate judge who, for compensation, without being admitted to practice law and without paying license fees advised persons in probate matters and prepared and filed papers in connection therewith, and prepared articles of incorporation for corporate organizers, which work was necessary to clear titles in loan transactions, held to have engaged in "practice of law," rendering him guilty of contempt of Supreme Court, though he did not sign the papers and pleadings as attorney, and he did not accept legal employment except from persons who had already enlisted his services in business matters connected with loans (I. C. A sec. 3-104).
2. In contempt proceeding in Supreme Court against former probate judge who, without being admitted to practice or paying license fees, had engaged in practice of law, where constitutionality of contempt statute was not questioned by parties, court was not required of its own motion to consider and pass on such question (I. C. A., sec. 3-104).
3. Court will not pass on constitutionality of statute unless it is absolutely necessary to do so in order to determine merits of case in which constitutionality of such statute has been drawn in question.
4. Party cannot question constitutionality of act unless he is injuriously affected thereby, and then only when he has properly challenged the law.
Original proceedings on petition for order to show cause why defendant E. C. S. Brainard should not be punished for contempt of court. Defendant found guilty of contempt.
Jess Hawley and Dean Driscoll, for Petitioner.
E. C S. Brainard appears in his own proper person, and George Donart, as his attorney.
No briefs are filed by the parties.
These proceedings were instituted by direction of the board of bar commissioners of the state of Idaho, for the purpose of securing an order requiring E. C. S. Brainard to show cause why he should not be punished for contempt of court in that he for several years last past had been practicing law and holding himself out as qualified to practice law in the state, without 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.
Defendant Brainard filed an answer to the petition and affidavit, and thereafter a stipulation of facts, signed by Mr. Brainard and the attorneys for the respective parties, was filed, which in detail set forth the activities of Mr. Brainard, which were substantially as charged in the petition and affidavit in support thereof.
The stipulation sets forth, and the defendant thereby admits, the following facts:
With these undisputed facts before us, there is but one conclusion to be reached--that the defendant has been actually engaged in practicing law. The particular reason or necessity for having the legal work performed is not a justification to practice law without being admitted, nor does the fact that Brainard did not sign the papers and pleadings as an attorney alter the situation. The work and services which he rendered to his clients were that of an attorney engaged in the practice and constituted the practice of law, as much so as if he had signed all the pleadings and papers as an attorney. (In re Eastern Idaho Loan & Trust Co., 49 Idaho 280, 288 P. 157, 73 A. L. R. 1323; In re Bailey, 50 Mont. 365, 146 P. 1101, Ann. Cas. 1917B 1198; People ex rel. Colorado Bar Assn. v. Taylor, 56 Colo. 441, 138 P. 762; People ex rel. Colorado Bar Assn. v. Erbaugh, 42...
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