De Pass v. B. Harris Wool Co.

• Decision Date: 09 November 1940
• Docket Number: 36559
• Parties: Edward De Pass, Appellant, v. B. Harris Wool Company
• Court: Missouri Supreme Court

144 S.W.2d 146

346 Mo. 1038

Edward De Pass, Appellant, v. B. Harris Wool Company

No. 36559

Supreme Court of Missouri

November 9, 1940

Appeal from Circuit Court of City of St. Louis; Hon. Frank C O'Malley, Judge.

Reversed and remanded.

Oliver T. Remmers for appellant.

(1) The Congress of the United States vested with exclusive power to regulate commerce among the several States created the Interstate Commerce Commission and gave that Commission authority to establish rules of admission to practice before it and such rules were adopted. Sec. 8, Art. I, U.S. Const Title 49, Ch. 1, Sec. 11, Interstate Commerce Act; Sec. 1 B I. C. C. Rules of Practice. (2) The laws of the United States are the supreme law of the land and the judges of every State are bound thereby. The reports and decisions of the Interstate Commerce Commission are competent evidence in the courts of the United States and the several States. Art. VI, U.S. Const.; Title 49, Par. 14, Acts of Congress. (3) The Interstate Commerce Commission's authority to regulate the practice before it cannot be questioned by the courts. This being so then one so licensed cannot be charged with the unlicensed practice of the law; nor are contracts of employment in pursuance thereof against the public policy of this State. Goldsmith v. U.S. Board of Tax Appeals, 270 U.S. 117, 70 L.Ed. 494; Schroeder v. Wheeler, 14 P.2d 903, 126 Cal.App. 367; In re Lyon, 16 N.E.2d 74; Public Serv. Traffic Bureau v. Haworth Marble Co., 40 Ohio App. 255; Brooks v. Mandel-Witte Co., 54 F.2d 992; VanderGrift & Co. v. Langon Zine Co., 87 Kan. 376, 14 P. 534. (4) Federal statutes, rules and regulations have force of law and judicial notice will be taken of them. State v. Bolen, 142 Wash. 653, 254 P. 445; Chicago, R. I. & G. Ry. Co. v. Harris, 28 S.W.2d 611; Hiatt v. Wabash Ry. Co., 69 S.W.2d 627, 334 Mo. 895, 55 S.Ct. 72, 293 U.S. 560, 79 L.Ed. 661.

Jones, Hocker, Gladney & Grand and Lon O. Hocker for respondent.

(1) The court did not err in sustaining defendant's demurrer to plaintiff's petition. (2) Under the laws of Missouri (Secs. 11692-11693) "appearance as an advocate in a representative capacity or the drawing of papers, pleadings or documents or the performance of any act in such capacity in connection with proceedings pending or prospective before any court of record, commissioner, referee or any body, board, committee or commission constituted by law or having authority to settle controversies" is the practice of law. (3) The Interstate Commerce Commission is comprehended within this definition, and if this law could apply to such a Federal commission, it would be practicing law to appear before it in a representative capacity. (4) The public policy of the State is declared by these statutes, and the courts of the State are bound by such declaration of public policy. Clark v. Austin, 340 Mo. 467, 101 S.W.2d 977; Curry v. Dahlberg, 341 Mo. 897, 110 S.W.2d 742. (5) Even if it had been entirely legal for the appellant to practice before the Interstate Commerce Commission, the public policy of the State of Missouri as expressed in its statutes and emphasized in the decisions construing the same, forbids the enforcement of contracts calling for such service which if performed in Missouri would be in violation of its laws. 11 Amer. Juris., secs. 125, 126, pp. 411, 413; Thurston v. Rosenfield, 42 Mo. 479; The Kensington, 183 U.S. 263; Union Trust Co. v. Grosman, 245 U.S. 412; Grosman v. Union Trust Co., 228 F. 610; Continental Supply Co. v. Trust Co., 202 N.W. 404; Campen Bros. v. Stewart, 145 S.E. 381; Pape v. Hanke, 40 N.E. 839; Fox v. Telegraph Co., 120 N.W. 399.

OPINION

Clark, J.

Appeal from the Circuit Court of the City of St. Louis. The petition alleges that: defendant is a Missouri corporation; plaintiff is a duly authorized and licensed practitioner before the Interstate Commerce Commission of the United States; defendant, through its agent, employed plaintiff to represent defendant for a contingent fee in certain rate reduction cases before the Interstate Commerce Commission; plaintiff performed the services and prays judgment for the amount claimed to be due. The contract, which is referred to in the petition, made a part thereof and attached as an exhibit, indicates on its face that it was entered into in Chicago, Illinois.

Defendant filed a demurrer stating: that the alleged contract calls for services which, under the laws of Missouri, amount to the practice of law; that, as plaintiff does not allege himself to be and in fact is not an attorney at law, such contract is against the public policy of Missouri and our courts will not lend themselves to its enforcement.

The trial court sustained the demurrer. Plaintiff refused to plead further and, judgment being rendered for defendant, appealed.

We shall continue to refer to the parties as plaintiff and defendant rather than appellant and respondent.

Under the constitutional power of the Federal government to regulate commerce among the several states, an Act of Congress has created the Interstate Commerce Commission and given it the right to prescribe rules of practice before it. [Vol. 10-A Federal Code Ann., p. 417 et seq.] We judicially note that the Commission has adopted rules whereby, under specified conditions, persons other than attorneys at law may be admitted to practice before it. [Vol. 10-A Federal Code Ann., p. 754.] Such rules have the force and effect of law. [Hiatt v. Ry., 334 Mo. 895, 69 S.W.2d 627.] Defendant does not dispute the validity of such rules and, by its demurrer, admits that plaintiff has been duly licensed to practice before the Commission. But, while conceding that plaintiff would violate no law by practicing before the Commission, defendant says that the courts of Missouri should not enforce the contract because it calls for services which, under the declared public policy of this State, may not be performed in this State by others than duly licensed attorneys.

As indicating our public policy defendant cites our statute defining the practice of law (Sec. 11692-3, R. S. Mo. 1929, Mo. Stat. Ann., p. 621) and two decisions of this court ( Clark v. Austin, 340 Mo. 467, 101 S.W.2d 977; Curry v. Dahlberg, 341 Mo. 897, 110 S.W.2d 742). The statute provides that none but duly licensed attorneys shall practice law which, in part, is defined as the appearance as an advocate in a representative capacity before "any body, board, committee or commission constituted by law or having authority to settle controversies." In Clark v. Austin, supra, we held in the majority opinion, that the statute is a valid exercise of the police power and confines the practice before the State Public Service Commission to duly licensed attorneys. Curry v. Dahlberg, supra, was a suit on a contract made by two persons neither being licensed to practice law. The defendant, designating himself as a "rate expert" or "commerce expert," employed plaintiff to solicit on a contingent basis claims from shippers against railroads doing intrastate business for overcharges under the State statutes. The contract contemplated action, if necessary, both in State and Federal courts. Defendant employed lawyers to bring suits and, as many of the railroads were in receivership, much of the litigation was in Federal courts. We held the contract against public policy and void because it called for the practice of law by unauthorized persons and also because it was champertous.

In both those cases State law only was considered, no question of Federal law being involved. Also, none of the persons complained of had any license whatever to practice either before a court or commission, while in the instant case the plaintiff was duly licensed to practice before the Commission.

On his claim that we have the right to refuse enforcement of the contract, although it is legal for plaintiff to practice before the Commission, defendant cites: 11 American Jurisprudence, secs. 125, 126, pp. 411, 413; Thurston v Rosenfield, 42 Mo. 474; The Kensington, 183 U.S. 263; Union Trust Co. v. Grosman, 245 U.S. 412; Grosman v. Union Trust Co., 228 F. 610; Continental Supply Co. v. Trust Co., 202 N.W. 404; Campen Bros. v. Stewart, 145 S.E. 381; Pope v. Hanke, 40 N.E. 839; Fox v. Telegraph Co., 120 N.W. 399. The Kensington case involved the question of enforcement in the United States of a contract made in Belgium and all the other authorities cited relate to comity between states of this nation. It may be conceded that, except as otherwise provided by the United States Constitution, the laws of a state have no force beyond its boundary; and that this court is under no compulsion to enforce, against the public policy of Missouri, a contract made in another state although valid where made and valid at the place of performance. That is not the question here. We are now considering the effect of a law of the United States the force of which does not stop at the boundary of Missouri. The Constitution of the United States (Art. VI) provides: "This Cons...