Unger v. Landlords' Mgmt. Corp.

• Decision Date: 15 September 1933
• Citation: 168 A. 229
• Parties: UNGER et al. v. LANDLORDS' MANAGEMENT CORPORATION.
• Court: New Jersey Court of Chancery

168 A. 229

UNGER et al.

v. LANDLORDS' MANAGEMENT CORPORATION.

Court of Chancery of New Jersey.

Sept. 15, 1933.

Syllabus by the Court.

1. The right to practice law in New Jersey is exclusive in those persons regularly licensed and admitted to the bar of this state.

2. The right to practice law is a property right existing by virtue of a license, of letters patent, from the state as the sovereign and may be protected from unlawful encroachment, threatening irreparable damage, by injunction.

3. It is no objection to the issuance of such an injunction that the act threatened is a crime.

Bill for injunction by Milton M. Unger and others against the Landlords' Management Corporation. On rule to show cause.

Preliminary restraint ordered.

Charles DeF. Besore, of Trenton, for complainants.

Charles E. Rogers, of Newark, for defendant.

BERRY, Vice Chancellor.

The bill is by the complainants Unger, a duly licensed and practicing attorney and counselor at law of this state, and two incorporated associations of members of the bar, on behalf of themselves and other duly licensed attorneys and counselors at law of this state, and seeks to restrain the defendant corporation from engaging in such activities as constitute the practice of law and from advertising or holding itself out as being entitled and authorized to engage in such activities.

That the right to practice law is exclusive in those persons regularly admitted to practice is settled by the decisions (In re Branch, 70 N. J. Law, 537, 57 A. 431; In re Raisch, 83 N. J. Eq. 82, 90 A. 12; In re Hahn, 85 N. J. Eq. 510, 96 A. 589, Ann. Cas. 1918B, 830; New Jersey Photo Engraving Company v. Carl Schonert & Sons, 95 N. J. Eq. 12, 122 A. 307; Black & White Operating Co. v. Grosbart, 107 N. J. Law, 63, 151 A. 630), and is conceded by the defendant.

It is not necessary to cite authorities for the proposition that this court has inherent power to protect by injunction rights in property from irreparable damage threatened by unlawful acts. And the right to practice law is such a property right as will be protected by injunction. In the language of Justice Field in Bradley v. Fisher, 13 Wall. 335, 355, 20 L. Ed. 646, at page 652: "Admission as an attorney is not obtained without years of labor and study. The office which the party thus acquires is one of value, and often becomes the source of great honor and emolument to its possessor. To most persons who enter the profession, it is the means of support to themselves and their families. To deprive one of an office of this character would often be to decree poverty to himself and destitution to his family."

In Re O'Brien's Petition, 79 Conn. 46, 63 A. 777, held that the right of an admitted attorney to practice law is property, but that the right to be admitted to an examination for the bar is not a property right. And in State v. Chapman, 69 N. J. Law, 464, 55 A. 94, 95, affirmed 70 N. J. Law, 339, 57 A. 1133, where the defendant was convicted of practicing dentistry without a license, the Supreme Court said: "A calling, business, or profession chosen and followed is property. Barr v. Essex Trades Council, 53 N. J. Eq. [8 Dick. Ch. Rep.] 101, 112, 30 A. 881; Slaughter House Cases, 16 Wall. 36, 116, 21 L. Ed. 394."

In this state, the right to practice law is conferred by letters patent, issued under the great seal of the state by its chief executive. In re Branch, supra. This has been the custom from the very beginning of the province of New Jersey. In re Hahn, supra. So that attorneys at law in New Jersey are the holders of a franchise granted by the state, through the Governor, by letters patent, by the same authority as formerly was exercised by the British crown. 1 Pollock & Maitland's History of English Law, 19L A franchise is a "royal privilege, or branch of the King's prerogative, subsisting in the hands of a subject." 2 Blackstone's Comm. 37. A special privilege conferred by government on individuals and which does not belong to the citizens of the country generally by common right. Ang. & A. Corp. par. 4. And see Bouv. Law Diet., "Franchise," "Patent."

Since the right to practice an ordinary calling, business, or profession is property (State v. Chapman, supra), it follows that the right to practice a profession, conferred by the state as a franchise by virtue of what was originally the King's prerogative, is a property right.

It is well established that this court has power to protect the holder of an exclusive franchise from irreparable injury by those not entitled to exercise such franchise. The Delaware & Raritan Canal Co. v. Camden & Atlantic Railroad Company, 16 N. J. Eq. 321, modified, Raritan & D. B. R. Co. v. Delaware .& R. Canal Co., 18 N. J. Eq. 546; Pennsylvania Railroad Company v. National Railway Company, 23 N. J. Eq. 441; Elizabeth town Gas-Light Company v. Green, 46 N. J. Eq. 118, 18 A. 844. And that the franchise is exclusive in a class rather than in an individual or corporation is no objection to relief.

Likewise, the jurisdiction of the Court of Chancery to enjoin a threatened irreparable injury to property, although it may involve a crime, is settled. Cumberland Glass Manufacturing Company v. Glass Bottle Blowers' Association, 59 N. J. Eq. 49, 56, 46 A. 208; hence it is immaterial that one who practices law without a license commits a criminal offense.

Defendant contends, however, that it does not hold itself out as being entitled to perform, nor does it threaten to perform any services for others which constitute the practice of law. Among the objects for which the defendant corporation was formed, as set forth in the certificate of incorporation, are the following: "To transact a general real estate agency and brokerage business, including the management of estates; to act as agent, broker or attorney in fact for any person or corporations in buying, selling and dealing in real property and any and every estate and interest therein, and choses in action secured thereby, Judgments resulting therefrom and other personal property collateral thereto, in making or obtaining loans upon such property, in supervising, managing and protecting such property and loans and all interests in and claims affecting the same, in effecting insurance against fire and all other risks thereon, and in managing and conducting any legal actions, proceedings and business relating to any of the purposes herein mentioned or referred to; to register mortgages and deeds of trust of real property or chattels real and all other...