State ex rel. Johnson v. Childe

• Decision Date: 21 February 1941
• Docket Number: No. 30822.,30822.
• Parties: STATE EX REL. JOHNSON, ATTY. GEN., v. CHILDE.
• Court: Nebraska Supreme Court

139 Neb. 91

295 N.W. 381

STATE EX REL. JOHNSON, ATTY. GEN.,

v.CHILDE.

No. 30822.

Supreme Court of Nebraska.

Feb. 21, 1941.

Syllabus by the Court.

1. It is the character of the act, not the person by whom or for whom or the place where it is performed, which determines whether such act constitutes the unauthorized practice of law.

2. The power to define what constitutes the practice of law is an exclusive judicial function.

3. The determination of the persons to be licensed to practice law is a judicial function over which the courts have exclusive control.

4. One who possesses the knowledge necessary to have reasonable skill and efficiency in handling matters relating to the fixing and revision of transportation and service rates and charges of common carriers may not engage in the practice of law before the railway commission of this state without a license.

5. To constitute the practice of law, acts performed while appearing before the railway commission must require the exercise of legal training, knowledge and skill.

6. The supreme court has the sole power to punish for contempt any person assuming to practice law in this state without a license.

Original action brought by the State on the relation of Walter R. Johnson, attorney general, against C. E. Childe, charging the defendant with contempt of court for practicing law without a license, in which relator filed a motion for judgment on the pleadings.

Motion overruled.

Walter R. Johnson, Atty. Gen., and Don Kelley, Asst. Atty. Gen., for plaintiff.

A. G. Ellick, of Omaha, for defendant.

Heard before SIMMONS, C. J., and ROSE, EBERLY, PAINE, CARTER, MESSMORE, and JOHNSEN, JJ.

CARTER, Justice.

This is an original action brought by the state on the relation of the attorney general charging the defendant with contempt of court for practicing law in this state without a license. The matter is before the court at this time on the motion of relator for a judgment on the pleadings.

At the first hearing before the referee, and prior to the filing of the motion for a judgment on the pleadings, respondent asked leave to amend his amended answer by filing an additional paragraph thereto. We hold that respondent was entitled to amend when leave to so do was requested and, by virtue of a stipulation appearing in the record, we will consider the amendment as a part of respondent's answer in ruling upon the motion now before the court.

The record shows that respondent is a person having reasonable skill and efficiency in handling matters relating to the fixing and revision of transportation and service rates and charges of common carriers. The acts alleged to constitute the practice of law are in relation to appearances made by respondent before the state railway commission. An understanding of the situation before us requires an investigation of the powers of this court over the subject-matter of the action and a determination of the powers and functions of the railway commission in so far as they bear upon the principles of law applicable to the case and necessary to a decision thereof.

[1][2][3][4][5] This court has heretofore held that it has the power to define and regulate the practice of law as an inherent power of the judiciary. In re Integration of Nebraska State Bar Ass'n, 133 Neb. 283, 275 N.W. 265, 114 A.L.R. 151. It is likewise invested with exclusive power to admit persons to the practice of law in this state and, except for the possible right of the legislature to make minimum requirements for the protection of the public by a proper exercise of the police power, to fix the qualifications for admission to the bar. State v. Barlow, 131 Neb. 294, 268 N.W. 95;State v. Kirk, 133 Neb. 625, 276 N.W. 380. The power to discipline those licensed to practice law is also vested with this court. In re Disbarment Proceedings of Newby, 76 Neb. 482, 107 N.W. 850;State v. Goldman, 127 Neb. 340, 255 N.W. 32. The power of this court to regulate the bar has been held to include the power to integrate the bar by rule of court. In re Integration of Nebraska State Bar Ass'n, 133 Neb. 283, 275 N.W. 265, 114 A.L.R. 151. The power to define what constitutes the practice of law is likewise lodged with this court. State v. Barlow, 131 Neb. 294, 268 N.W. 95;State v. Kirk, 133 Neb. 625, 276 N.W. 380. The court has the sole power to punish for contempt any person assuming to practice law within this state without having been duly licensed to do so. State v. Barlow, 131 Neb. 294, 268 N.W. 95;State v. Hinckle, 137 Neb. 735, 291 N.W. 68.

[6] The authority of the supreme court to define and regulate the practice of law is inherently contained in the grant of judicial power to the courts by the Constitution. Respondent contends, in view of this fact, that such inherent power is limited by the doctrine of the separation of powers and does not include the right to regulate the appearance and activity of practitioners appearing before the railway commission while it is engaged in other than judicial functions. It is argued by the relator that the character of the act and not the place where the act is performed is the controlling and decisive factor. There are many cases from foreign jurisdictions supporting each of these propositions which we will not undertake to review in this opinion. We appear to have committed ourselves to the latter view by the former decisions of this court. In State v. Kirk, 133 Neb. 625, 276 N.W. 380, 381, we held: “In determining the illegal practice of law, it is the character of the act and not the place where the act is performed which is the decisive factor.” See, also, State v. Hinckle, 137 Neb. 735, 291 N.W. 68. The holding in State v. Barlow, 131 Neb. 294, 268 N.W. 95, although not expressly stated, tends to support the same conclusion. In State v. Wells, 191 S.C. 468, 5 S.E.2d 181, the supreme court of South Carolina stated the rule as follows: “The character of service rendered, and not the denomination of the tribunal before whom such services are rendered, controls determination of whether such services constitute the ‘practice of law.’ ” See, also, Grand Rapids Bar Ass'n v. Denkema, 290 Mich. 56, 287 N.W. 377;Shortz v. Farrell, 327 Pa. 81, 193 A. 20;People v. People's Stock Yards State Bank, 344 Ill. 462, 176 N.E. 901. We have come to the conclusion that it is the act, not the person by whom or for whom or the place where it is done, which determines whether it is unauthorized law practice.

[7] The railway commission is a constitutional tribunal deriving its powers directly from the people. Const. art. IV, sec. 20. The legislature has, in accordance with the provisions of the foregoing section of the Constitution, authorized the railway commission to adopt rules and regulations to govern its proceedings and the mode and manner of conducting investigations. Comp.St.1929, secs. 75-301 and 75-102; Comp.St.Supp.1939, sec. 75-225. These sections of the statute convey broad powers upon the railway commission with reference to its procedure, but they do not authorize one not admitted to the bar to engage in the practice of law. The determination of the persons to be licensed to practice law is a judicial function over which the courts have exclusive control. The issue therefore resolves itself into the question whether the acts performed by respondent amounted to the practice of law. In this connection, we desire to point out the difficulty of stating an all-inclusive definition of what constitutes the practice of law. Any attempt to state a general and precise definition would tend toward a rigidity by judicial rule which would eventually forestall the beneficial results to be accomplished. The practice of law obviously has complexities and diversities too many and too intricate to be compressed within an exact formula. The situation is further proof of the correctness of the statement of Mr. Justice Holmes that “general propositions do not decide concrete cases.”

[8] It is urged as a defense that to acquire and possess the knowledge necessary to have reasonable skill and efficiency in the handling of matters relating to the fixing and revision of transportation and service rates and charges of common carriers requires years of intensive and undivided study which few lawyers, if any, have undertaken. This is not a defense. We do not doubt that respondent possesses high qualifications in the transportation rate field. But the fact that he can qualify as an expert in a particular field will not permit his engaging lawfully in the profession of the law without a license to do so. In this respect he is in no better position than the physician, the accountant, and the financial adviser, each of whom has expert knowledge in excess of that of the lawyer in his respective field.

As was done in State v. Barlow, 131 Neb. 294, 268 N.W. 95, and State v. Kirk, 133 Neb. 625, 276 N.W. 380, we shall examine the facts and circumstances of each case and determine as best we can the line of demarcation, often shadowy and wavering, which defines the limits of the functions of the legal adviser from those of the layman.

[9] The...