State v. Cozad , 70 S.D. 193 ( 1944 )

One of the apparent objects of this action was the determination of the remedy, if any, aside from criminal prosecution, for the prevention of the unauthorized practice of law. The power of the court to punish the alleged offender for contempt was not decided in the foregoing opinion and, therefore, the following observations are submitted.

The appellants claim that the unauthorized practice of law "is contempt of all the courts of the state and certainly of the courts within whose territorial jurisdiction the unauthorized practice is committed." On this basis they asked for an adjudication of contempt in the trial court. Respondent claims that the circuit court had no jurisdiction to adjudge the respondent guilty of contempt.

Proceedings for contempt are of two classes: those instituted for the purpose of preserving the power and vindicating the dignity of the courts, which are punitive and criminal, and those instituted to enforce the rights of private parties and to compel obedience to lawful orders and decrees made for that purpose, which are remedial and civil. State v. American-News Co., 62 S.D. 456, 253 N.W. 492.

It was said In re Nevill, 8 Cir., 117 F. 448, 459, as quoted in State v. American-News Co., supra [62 S.D. 456, 253 N.W. 493]: "A criminal contempt involves no element of personal injury. It is directed against the power and dignity of the court, and private parties have little if any interest in the proceedings for its punishment."

In this case the forbidden act was not specifically injurious to the complainants or any other person. This is a case in which "the state alone is interested in the enforcement of the penalty, it being a punishment which operates in terrorem, and by that means has a tendency to prevent a repetition of the offense in other similar cases." State v. Knight, 3 S.D. 509, 54 N.W. 412, 413, 44 Am. St. Rep. 809.

The contempt charged in this case is therefore punitive and criminal.

It is not claimed in this case that the acts complained of were committed in the presence of the circuit court. We have no statute which makes the unauthorized practice of law contempt of court and which prescribes the court in which such proceedings may be brought. It is the general rule in such circumstances, that the sole power to punish for contempt in case of a person engaging in the unauthorized practice of law, is in the court vested by law with authority to license persons to practice, and to suspend and disbar. State ex rel. Wright, Attorney General v. Barlow, 131 Neb. 294, 268 N.W. 95; State v. Goldman,127 Neb. 340, 255 N.W. 32; In re Morse, 98 Vt. 85, 126 A. 550, 36 A.L.R. 527; People v. People's Stock Yards State Bank, 344 Ill. 462,176 N.E. 901; In re McCallum, 186 Wash. 312, 57 P.2d 1259.

In People v. People's Stock Yards State Bank, supra [344 Ill. 462, 176 N.E. 906], the Supreme Court of Illinois said: "Having power to determine who shall and who shall not practice law in this state, and to license those who may act as attorneys and forbid others who do not measure up to the standards or come within the provisions of its rules, it necessarily follows that this court has the power to enforce its rules and decisions against offenders, even though they have never been licensed by this court. Of what avail is the power to license in the absence of power to prevent one not licensed from practicing as an attorney? In the absence of power to control or punish unauthorized persons who presume to practice as attorneys and officers of this court the power to control admissions to the bar would be nugatory. And so it has been held that the court, which alone has authority to license attorneys, has as a necessary corollary ample implied power to protect this function by punishing unauthorized persons for usurping the privilege of acting as attorneys."

The foregoing statement was quoted with approval by the Supreme Court of Nebraska in State v. Barlow, supra [131 Neb. 294, 268 N.W. 98], and then the Nebraska court said: "Defendant further contends that, since the Legislature has, by statute * * * provided a penalty for the practice of law without a license and has not, by statute, made such practice a contempt, this court is powerless so to do. That an act denounced by statute as a crime may constitute a contempt of the court is beyond question, notwithstanding the offender may be prosecuted under a criminal statute. The question has been before other courts and a like holding has been made in People v. Association of Real Estate Tax-Payers, supra [354 Ill. 102, 187 N.E. 823], and in Rhode Island Bar Ass'n v. Automobile Service Ass'n, supra [55 R.I. 122, 179, A. 139, 100 A.L.R. 226]. This court possesses inherent power to protect itself and its officers from any unlawful interference with its functions as a court. This it may do, not only for the purpose of protecting the court and its officers, but in the interest of the public at large to prevent it from being exploited and injured by one unlawfully assuming to act as an officer of the court. There are many instances where persons' rights have been jeopardized and sacrificed because of following the counsel and advice of unlicensed persons, giving or attempting to give legal advice."

By SDC 32.11 the Supreme Court of this state is given exclusive authority to license the practice of law. By SDC 32.12 the Supreme Court is also given the exclusive authority to disbar and suspend attorneys. Therefore the authority to punish as contempt the unauthorized practice of law, when not committed in the presence of a court, is in this, and not the circuit court.