Reardon v. Frace

• Decision Date: 04 April 1939
• Docket Number: 35673
• Citation: 126 S.W.2d 1167,344 Mo. 448
• Parties: Ex Parte J. M. Reardon, Petitioner, v. Wesley Frace, Acting Marshal of the Kansas City Court of Appeals
• Court: Missouri Supreme Court

126 S.W.2d 1167

344 Mo. 448

Ex Parte J. M. Reardon, Petitioner, v. Wesley Frace, Acting Marshal of the Kansas City Court of Appeals

No. 35673

Supreme Court of Missouri

April 4, 1939

Petitioner discharged.

Victor Packman for petitioner; Harold Kaminsky of counsel.

There is no precedent at common law, or in the cases, to justify the assumption of alleged inherent powers as exercised by the Kansas City Court of Appeals in the case at bar. The court by failing to differentiate between inherent and self-bestowed powers, assumed powers in excess of its jurisdiction. (a) Unlike the Supreme Court, it does not have the power to license lawyers, nor does it possess general supervisory power over the bar. (b) One court does not have the power to punish for contempt of another. State v Shepherd, 177 Mo. 237, 76 S.W. 89; Ex parte Gonzalez 238 S.W. 636; Cuyahoga County Bar Assn. v. Real Estate Brokers, 3 Unauthorized Practice News, p. 80. (c) The inherent powers of the courts to regulate the conduct of members of the bar is based on time honored precedents, and upon certain premises which do not apply to laymen. (d) The object of courts in disciplining members of the bar is not punitive; the object of a criminal contempt proceeding is primarily punitive. In re Conrad, 105 S.W.2d 9; Gompers v. Buck Stove & Range Co., 221 U.S. 443. (e) The present statutes of Missouri, defining and forbidding the "illegal practice of law" and the "doing of a law business," do not empower any court to punish violations thereof, as and for a contempt of court. Secs. 11692, 11693, 11706, R. S. 1929; compare with 1 R. S. 1872, chap. XII, sec. 5; Sec. 11706, R. S. 1929. (f) "The practice of law" before a court by a layman is far different from the "doing of a law business" by a layman outside the court room. This court has recognized the logical statutory distinction between the forensic or court room, and the office aspects in the profession of law. State ex inf. Miller v. St. Louis Union Trust Co., 335 Mo. 845, 74 S.W.2d 361; State ex rel. McKittrick v. Dudley & Co., 102 S.W.2d 898.

Franklin E. Reagan, Assistant Attorney General, and Paul M. Peterson for respondent.

(1) The admitted acts of respondent constitute the practice of law. State ex rel. McKittrick v. Dudley & Co., 162 S.W.2d 895; Clark v. Coon, 171 S.W.2d 977; State ex inf. v. St. Louis Union Trust Co., 335 Mo. 845, 74 S.W.2d 348; Richmond Assn. of Credit Men, Inc., v. Bar Assn., 189 S.E. 153; Meunier v. Bernich, 170 So. 567; In re Matthews, 62 P.2d 578; In re Shoe Manufacturers' Protective Assn., Inc., 3 N.E.2d 746; Depew v. Wichita Assn. of Credit Men, 142 Kan. 403, 49 P.2d 1041; State ex rel. v. Perkins, 138 Kan. 899, 28 P.2d 765; State Bar of Oklahoma v. Retail Credit Assn., 37 P.2d 954; State v. James Sanford Agency, 69 S.W.2d 895; State ex rel. v. Retail Credit Men's Assn., 163 Tenn. 450, 43 S.W.2d 918; People v. Merchants' Protective Corp., 189 Cal. 531, 209 P. 363; Fichette v. Taylor, 191 Minn. 582, 254 N.W. 910, 94 A. L. R. 356; Rhode Island Bar Assn. v. Automobile Serv. Assn., 179 A. 139, 100 A. L. R. 226; In re Duncan, 83 S.C. 186, 65 S.E. 210, 24 L. R. A. (N. S.) 750, 18 Ann. Cas. 657; Boykin v. Hopkins, 162 S.E. 796; People v. Title Guaranty, 168 N.Y.S. 278; Elley v. Miller, 7 Ind.App. 529, 34 N.E. 836; People v. Alfari, 227 N.Y. 334, 125 N.E. 671; Berk v. State, 225 Ala. 324, 142 So. 832, 84 A. L. R. 740; People v. People's Stock Yards State Bank, 344 Ill. 462, 176 N.E. 901. (2) The admitted acts of respondent constitute the practice of law. The admitted acts of respondent are set out in the opinion of the Kansas City Court of Appeals.

OPINION

Gantt, J.

This came to me on reassignment. Action in habeas corpus. Petitioner is restrained of his liberty by the acting marshal of the Kansas City Court of Appeals under a judgment of said court. The court found that he had unlawfully engaged in the practice of law, and for that reason was guilty of contempt of court. [Clark v. Reardon, 104 S.W.2d 407.]

Petitioner contends that the warrant of commitment issued by said court is void, in that no facts are stated therein authorizing the restraint of petitioner. The commitment follows:

"Now at this day comes the said respondent, in person and by attorneys, in accordance with the mandate and judgment of this Court, entered of record on April 5, 1937, adjudging him in contempt of this Court for the illegal practice of the profession of attorney at law, and submits himself to the judgment of this Court. Thereupon it is considered and adjudged by the Court that the said respondent be ordered and adjudged to pay to the Clerk of this Court a fine of One Hundred Dollars and costs amounting to Six Hundred Five Dollars and Sixty Cents herein assessed. It is further ordered and adjudged by the Court that the said respondent be committed to the custody of the Sheriff of Boone County, Missouri, by the Marshal of this Court, to be held by the said Sheriff and confined to the Boone County jail until the said respondent purges himself of said contempt by the payment of said fine and costs. Thereupon, on the oral request of respondent, and by consent of informants, it is ordered by the Court that the said respondent be given a stay of execution of said sentence of thirty days from this date upon his oath and acknowledgment here made in open Court of his indebtedness to the State of Missouri in the penal sum of Five Hundred Dollars, conditioned to be paid by him in the event of his failure to pay said fine and costs or surrender himself to the Marshal of this Court upon the expiration of said thirty days."

It will be noted that the particular circumstances of the offense are not set forth in the commitment. The statute provides that "whenever any person shall be committed for any contempt specified in this chapter (IX), the particular circumstances of his offense shall be set forth in the order or warrant of commitment." [Sec. 1867, R. S. 1929.] The unlawful practice of law is not mentioned in said chapter, and for that reason said section is without application in the instant case. Therefore, the question must be ruled under the common law, which follows:

"We doe not, neither will we in any wife impunge the ecclefiafticall authority in any thing that appertaineth unto it; but if any by the ecclefiafticall authority commit any man to prifon, upon complaint unto us that he is imprifoned without juft caufe, we are to fend to have the body, and to be certified of the caufe; and if they will not certifie unto us the particular caufe, but generally without expreffing any particular caufe, whereby it may appeare unto us to be a matter of the ecclefiafticall cognizance, and his imprifonment be juft, then we doe and ought to deliver him and this is their fault, and not ours. And although fome of us have dealt with them to make fome fuch particular certificate to us, whereby...