(dissenting). Criminal contempt is a summary proceeding which operates in derogation of human liberties. It should not be used except when reasonably necessary to the vindication of the authority and the prestige of the court. This is not such a case. The reasoning which brings me to tliat conclusion is as follows.
What is the essence of the charge against the respondents ? Is it that they drew a power of attorney and a will and in so doing did that which they, not being licensed to practice law, had no right to do? That and nothing more? It is now rather generally accepted that the courts, under their contempt powers, have authority to punish those who without right practice law; and if the objective of the prosecution is as thus circumscribed then the authority of the court to initiate the proceeding is clear and the issues are, whether the acts so alleged constitute unlawful practice, whether,' having the authority, the court should, in wise discretion, exercise it, and, finally, whether the respondents, either or both, committed the acts of which they are accused. If, on the other hand, the circumstances of the case are such that the acts charged do not constitute unlawful practice, or their character as such is so problematical as to make them a mere technicality, and the real burden of the charge is that the respondents perpetuated a fraud upon or took an unconscion*342able advantage of another, then the court, for reasons which I shall state, ought not to proceed as upon a contempt, because no one, lawyer or otherwise, is licensed to perpetrate a fraud, and the proceeding becomes in effect the prosecution of an offense against society, in other words, a prosecution for crime, without semblance of conformance with our criminal processes. In any event the court should, in my opinion, avoid resort to its arbitrary power over contempts unless the case is clear, the need urgent and there is no other adequate course.
The proceeding is criminal and punitive in its nature. In re Frederick Bugasch, Inc., 12 N. J. Misc. 788 (Sup. Ct. 1934); In re Merrill, 88 N. J. Eq. 261 (Prerog. 1917). The power to adjudge in contempt “is a power which may be * * * followed by an imprisonment for a year, or a longer term, as well as for a single day.” Rhinehart v. Lance, 43 N. J. L. 311 (Sup. Ct. 1881). If, as is charged, the respondents practiced law without a license, they are, entirely independent of this proceeding, guilty of a criminal offense, R. S. 2:111—1, el seq., and are punishable thereunder:
“2:111-1. Any person not licensed as an attorney or counselor at law * * * that shall: (a) Engage, in this state in the practice of law * * * Shall be guilty of a misdemeanor.
2:111-3. The term ‘practice of law’ as used in this chapter shall include the engaging in the practice of preparation of wills or conveyances.”
Our courts have repeatedly said that practicing law without a license is a criminal offense and may be prosecuted in the way usual to the punishment of crimes under the statute. In re Frederick Bugasch, Inc., supra; N. J. Photo Engraving Co. v. Schonert & Sons, 95 N. J. Eq. 12, 15 (Ch. 1923). An accusation under the statute would follow the course which has been provided and jealously maintained for the protection of one criminally accused, including indictment by a grand jury, trial before a petit jury which, in appraising truth and falsehood, sees and hears the witnesses in a trial *343presided over by a judicial officer according to the rules of evidence, and the right of appeal from a conviction. None of those rights or protections are accorded the respondents in this proceeding.' On the contrary, the court indicts, prosecutes, tries the case on a paper transcript of testimony, adjudges guilt, imposes unrestricted sentence, and is subject to no appeal.
I do not suggest that the practice here followed is unusual in strict contempts or that a criminal contempt is per se a criminal proceeding within the application of art. J, par. 8, and related paragraphs, of our Constitution. That is just the point; it is a proceeding sui generis, it includes offenses easily committed, is a remedy easily used, it is not geared to our conception of a trial for crime, and it should be limited to those inherent and urgent needs which are its reasons for existence. As Chief Justice Taft said in Ex parte Grossman, 267 U. S. 87, 69 L. Ed. 527 (1925):
“Tlie power of a court to protect itself and its usefulness by punishing contemners is of course necessary, but it is one exercised without the restraining influence of a jury and without many of the guaranties which the bill of rights offers to protect the individual against unjust conviction.”
The contempt in the Grossman case lay in the flouting of a court order. Manifestly, the'need for summary action recedes correspondingly as the offense becomes more distantly related to the court or any of its orders. There is real danger that an unwise use of the autocratic power to adjudge in contempt may ultimately reach an end quite far from the target.
. The procedure herein has been as follows: The Bergen County Committee on the Unauthorized Practice of Law laid before the court an unverified paper made upon information and centering upon the statement that Bieber drew a will which Knoph executed and in which were various bequests, a residuary gift to Baker and Bieber and a clause naming these men as executors, and that Bieber also prepared and had Knoph execute a power of attorney over his property *344naming Baker and Bieber as attorneys in fact to act if Knopf should become mentally incompetent. Upon that informal presentation this court made an order directing Baker and Bieber to show cause why they should not be adjudged guilty of contempt of court for bringing the administration of justice into disrepute and for the unauthorized 'practice of the law and why they should not be punished therefor, appointing an attorney to prosecute the matter and present the same to the court, and directing that depositions be taken' upon notice. In accordance with that order depositions were taken in the presence of the respondents and their respective attorneys as well as of the prosecutor for the court before a person who was a notary public and certified shorthand reporter but who had no authority except to swear witnesses, take down stenographically what was said and certify the transcript. On that transcript the court heard arguments of counsel and came to its conclusion both as to guilt and sentence. The court has at no time seen the respondents or any of the witnesses; it has had no report as from a referee or master either upon the finding of facts or otherwise. From the determination thus made there is no appeal. Upon the sentence to be pronounced there is no limit. The power which the court has exercised is vast and irresponsible. I use the word “irresponsible” in the sense that the court’s findings are absolute and beyond review unless there be some federal constitutional question involved.
Flo charge of conspiracy or other fraud is laid against the respondents. The presentment contains nothing which, within that rule of certainty to which a person accused of crime is entitled, may.be considered as such. It charges that Bieber prepared both the power and the will. Bieber says that he prepared them. Baker says that Bieber prepared them and that he, Baker, did not. Bearing in mind that no conspiracy is charged, I find nothing upon which Baker may be adjudged guilty of an act of unlawful practice.
As to the power of attorney: Bieber drew the paper. Both he and Baker were parties to the transaction. It was upon *345them that the power was conferred. Parties may draw instruments between themselves without committing illegal practice. That obviously is so. “A” borrows money from “B”; neither party is an attorney at law; but “B” draws a promissory note—a legal instrument—declaring the debt and its terms and stating the obligation to repay and has “A” sign it. No one will say that either has transgressed upon illegal practice. If “B” thereby in some way perpetrates a fraud upon “A,” he is amenable to the law for his wrong. But the introduction of fraud does not make an illegal practice of the law that which without it is not such an act. I conclude that the drawing and executing of the power of attorney did not lay either of the respondents open to a charge of unlawful practice.
As to the will: Knoph knew that neither Baker nor Bieber was a lawyer. He also knew that one of those men drew the will which he executed. He wanted it that way. He was an eccentric who did not like lawyers and did not like his relatives well enough to leave them his little estate. He says that he did not know the will contained a paragraph leaving the residuary estate to Baker and Bieber. That I do not believe. By his own story he had solicited neighbors, of no kin, in the unsuccessful effort to persuade them to become his residuary legatees. The suggestion that the drawing of one will under such circumstances was an affront to the dignity of the court or would tend to discredit the esteem in which courts are held does not, I believe, have sufficient substance to hold its own weight. Of scarcely more force is the argument that such an isolated act, without earlier acts of like nature and without threat or likelihood of repetition, was a substantial encroachment upon the emoluments or the standing of the bar. Thus the activating reasons for proceeding under the extraordinary contempt power of the courts fade away. It is also to be remembered that the efforts of the accused men got no actual results and that Knoph is not the accuser.
*346There is grave question whether the act of drawing one will, particularly when the draftsman of the instrument is one of the executors and one of the residuary legatees, constitutes practice of the law. The Superior Court of Pennsylvania expressed the opinion that the preparation of one will by a trust company acting through an officer not authorized to practice law was not a violation 'of the statute prohibiting the unauthorized practice of law. In re Umble’s Estate, 117 Pa. Super. 15, 177 A. 340 (1935). That is in line with the general rule that a single instance of drawing a legal instrument does not usually constitute unlawful practice and that the drawing of a paper in which the draftsman has an interest usually does not; “* * * the substance of the offense is the habitual preparation for a consideration of legal documents for others,” Childs v. Smeltzer, 171 A. 883 (Sup. Ct. Pa. 1934); “to prepare as a business legal instruments and contracts,” People v. Alfani, 227 N. Y. 334, 125 N. E. 671 (N. Y. .Ct. of Apps. 1919), People v. Weil, 260 N. Y. S. 658, 237 App. Div. 118, (N. Y. Sup. Ct., App. Div. 1st Dept., 1932); “* * * the occasional drafting of simple deeds, and other legal instruments when not conducted as an occupation or yielding substantial income may fall outside the practice of the law,” In re Opinion of the Justices, 194 N. E. 313 (Sup. Jud. Ct. Mass. 1935).
It is recognized by courts generally that the power to convict and sentence on a contempt is an autocratic power which is to be used most sparingly and only in urgent instances. It was said by our Supreme Court, Rhinehart v. Lance, supra, that “the power to commit at discretion and for a discretionary term of imprisonment is a transcendent prerogative power * * * a power which, at best, is an arbitrary power, and liable to great abuses.”
In re Frederick Bugasch, Inc., supra, has strong resemblance to the instant case. The Hudson County Bar Association, in cooperation with the Conference of the County Bar Associations, made application to reargue a rule to show cause why the defendants should not be adjudged in contempt *347of the Supreme Court in that they practiced law without having been licensed to do so. The illegal practice, it was charged, consisted of service rendered by the defendants to the estate of a decedent in the probate of her will, preparing and filing inventory for inheritance tax purposes, and the drawing and recording of two refunding bonds and releases. The argument was made that the bar associations sought to impress upon the court that the cause was instituted as a part of a nationwide movement sponsored by the American Bar Association against unauthorized practitioners of the law. The opinion stated:
. “While the court is, of course, impressed and concerned with the efforts of all and particularly those of the bar associations, which have for its purposes the vindication and preservation of its powers, for they are wholesome and praiseworthy objectives, nevertheless we are of the opinion that we should not resort to or exercise the inherent, but none the less drastic and extraordinary, power and right of this court to punish, under all circumstances, those who appear to have committed an act or acts which may be construed as being in contempt of court. It is a power that is not and should not be exercised lightly.”
The court proceeded to hold that under the facts and circumstances of the case it would not exercise “the mighty power” to punish the alleged wrongdoers by and through the process of contempt proceedings; that the prosecutors were not without a remedy; 'that if the defendants practiced law without a license they were guilty of a criminal offense and were answerable to the criminal laws of the state.
The rule as stated in the Bugasch case appears to be generally accepted in this country. In re McCallum, 57 P. 2d 1259 (Sup. Ct. Wash. 1936), was a proceeding in contempt based on the alleged illegal practice of the law without a license in preparing deeds, real contracts and mortgages. Inasmuch as the accused had desisted from that practice after the second warning from the state bar association the court refused to punish through the extraordinary process of contempt proceedings, especially since the court considered that the defendant, if guilty of practicing law without a license, *348was punishable under the criminal laws of the state. The opinion quotes bodily so much of the Bugasch opinion, supra, as I have placed within quotation marks.
In Rhode Island Bar Associalion v. Automobile Service Association, 179 A. 139 (Sup. Ct. R. I. 1935), the bar association brought in a group of men doing business as Automobile Service Association to have them adjudged in contempt of court for the illegal practice of law. It appeared by the allegations of the petition and by the testimony given before the court that the' respondents had held themselves out to perform various services under the headings of “Manslaughter/5 “State Laws, City Ordinances/5 “Damage Suits against Others/5 “Defense/5 “Legal Advice/5 “Hearings.55 The respondents admitted that they had performed such services, and it appears from the course of the decision that they proposed to continue the unlawful acts to the great wrong of the public and to the invasion of the ancient and exclusive rights and privileges of the bar unless the court intervened. The court determined that the case was one in which the unusual power over contempt should be exercised, but said:
“Nevertheless, we do not encourage it. In trivial or unimportant instances of illegal practice of the law, it should not be used. Where other remedies are available and efficient to right the wrong complained of, they should first be invoked, unless there is, as in the instant case, an evident need for summary action to protect the public and the jurisdiction of the court. This inherent power of the judiciary to punish for contempt is a necessary but also a dangerous power, and is therefore to be used with great caution. In this instance, the peculiar circumstances seem to call it forth to vindicate the jurisdiction and authority of this court over a matter that is intimately related to the administration of justice and that deeply affects the public welfare.”
A case strongly relied upon as a precedent by the prosecutor herein is that of People ex rel. Chicago Bar Ass’n. v. Goodman, 8 N. E. 2d 941 (Sup. Ct. Ill. 1937). The ruling was upon a motion to strike the information which of course admitted the allegations. The accused had engaged in and was continu*349ing a large and profitable business in the collection and adjustment of workmen’s compensation claims. The court held (italics inserted) :
“It would be an anomalous situation if a layman actively engaged in the practice of law, in defiance of tbe requirements necessary therefor announced by this court, could stay the hand of the court from, suppressing his illegal acts. The practice of law, both in courts and out of courts, by one not licensed, is an illegal usurpation of the privilege of an attorney and is a contempt of this court.”
In all of the cases which I have found the acts said to have been a contempt of court were aggravated and continued beyond any reasonable comparison with the alleged acts of unlawful practice in the instant case. Among them are: In re White, 171 Pac. 759 (Sup. Ct. Mont. 1918); In re Morse, 126 A. 550 (Vt. Sup. Ct. 1924); People ex rel. Chicago Bar Association v. Tinkoff, 399 Ill. 282, 77 N. E. 2d 693 (Ill. Sup. Ct. 1948); People ex rel. Illinois State Bar Ass’n. v. Schafer, 404 Ill. 45, 87 N. E. 2d 773 (Ill. Sup. Ct. 1949); People ex rel. Chicago Bar Ass’n. v. Barasch, 406 Ill. 253, 94 N. E. 2d 148 (Ill. Sup. Ct. 1950). Many of the cases on the subject will be found noted, annotated or reviewed in 36 A. L. R. 533, 100 A. L. R. 236, 1951 A. L. R. Blue Book supplementing the last citation, 7 C. J. S., Attorney and Client, § 16. The matter is summed up in 7 O. J. S., p. 726, Attorney and Client, § 16(1), as follows: “Ordinarily the court will not resort to or exercise this drastic and extraordinary power unless necessary.”
The chief function of a criminal contempt proceeding is to enable the court to guard its power, authority, dignity and integrity, cf. In re Merrill, supra, and because the court has authority over the admission of attorneys it may give effect to that authority by preventing the practice of law by those whom it has not licensed so to do. The proceeding, however, is the exercise of an extraordinary and arbitrary power which by reason of its incidents should be, and is, sparingly used. It has been exercised chiefly in instances where the dignity and the authority of the court and its writs are directly *350involved and, seldom, where the offense lies in the doing of acts which are the exclusive privilege of an attorney at law.
I apprehend that my brethren are impelled to their conclusion by the conviction that the respondents conspired to victimize an old man to their unearned advantage, an act which is not licensed by any commission to practice law and which is not more an affront to the dignity of the court than is any offense against society. The cart should not be put before the horse. The primary question is whether there has been unlawful practice and whether the unlawful practice was such as to warrant resort to a contempt proceeding. The unconscionable incidents bear properly upon the extent of punishment and not upon the technical guilt of unlawful practice. I agree that a criminal fraud, if it exists, should be punished, but I consider that since it, and not any of those incidents which are the peculiar justification for the exercise of the court’s drastic power of contempt, is the weight of the accusation, the conviction should be reached in the way that convictions for other offenses against society are reached, namely, by the processes of our criminal law. Only in that way can the right of a defendant to a fair trial on a criminal charge in accordance with the spirit of our constitution and laws be maintained. It is well to recall that the application of the contempt power to the acts of unlicensed persons in practicing law is a modern extension of the doctrine of con-tempts and is like unto nothing in any other profession or walk in life. Consider, for illustration, the great profession of medicine, the unlawful practice of which contains an equal threat to the emoluments of licensed practitioners and perhaps a greater threat to the safety of the public. The State Board of Medical Examiners has authority to grant and to revoke licenses, R. S. 45:9—16, but not to penalize unlawful practice. Technical violations are prosecuted by summary suit in court on the complaint of the board, R. s. 45:9-22; but offenses against society as such, whether by licensed or unlicensed persons, follow the usual criminal course, as abortion, R. S. 2:105-1.
*351I conclude that Baker has not been shown to have, drawn either instrument; that the power of attorney, since it was. drawn by one of the parties to the transaction, was not the practice of law; and that the will presents a question of doubt. On the whole case I believe there is not justifiable reason for pursuing the drastic procedure of criminal contempt, that there is an adequate remedy in the processes of the criminal courts and that the precedent clearly set in the Bugasch and the McCallum cases, supra, should be followed. Perhaps I should add that my impression received from the typewritten transcript upon which we must exclusively rely is that Knoph was an evasive, forgetful and altogether unconvincing witness; and at the same time he was a vital witness on the question of over-reaching. This, as much as anything else, leads me to conclude that there should be a trial in the usual course.
The lightness of the penalty does not atone for a mistaken procedure. The precedent establishes the principle. The punishment in the next case may be an extended imprisonment.
I therefore favor a dismissal of the proceedings and a direction to place the matter in the channels of the criminal law.
For guilty—Chief Justice Vandekbilt, and Justices Hehbk, Waciieneeld, Btjkling and Aoicekson—5.
For not guilty—Justice Case—1.
For guilty as to Bieber. Not guilty as to Balcer—Justice Oliphant—1.