State ex rel. Johnson v. Childe

Carter, J.

This is an original proceeding brought by the state on the relation of the Attorney General, charging the defendant with contempt of court for practicing law without a license. The case was previously before this court on a motion of the state for a judgment on the pleadings. State ex rel. Johnson v. Childe, 139 Neb. 91, 295 N. W. 381. The motion was therein overruled and the cause referred to- the Honorable E. A. Coufal, the duly appointed referee of this court, for the taking of evidence and the determination of findings of fact and conclusions of law. The referee thereupon proceeded to take evidence, make his findings of fact therefrom and determine the law applicable thereto. The matter is now before the court on the motion of the Attorney General for judgment on the report of the referee. No objections were filed to the referee’s, report.

The information charges the defendant with engaging in the practice of law on five separate occasions, each being charged in a separate count. In the discussion of these various counts and the evidence tending to sustain them, we shall allude to .applicable rules of law only as they bear upon the issues immediately before us. The law generally applicable to the case is set forth at length in our former opinion.

Count one alleges that on or about January 12, 1939, a hearing was had before the Nebraska State Railway Commission in a proceeding entitled “In the Matter of the Application of the Central States Motor Carriers’ Association for Authority to Establish Commodity Rates on Building and Fencing Materials,” which said hearing was adjourned from time to time and finally concluded on February 9, 1939. The information then alleges that the defendant, a person not licensed to practice law, appeared in said proceeding, to which he was not a party, as. the representative of the petitioner, the Central States Motor Carriers’ Association, Farmers Union of Nebraska, Nebraska Farm Bureau Federation and Farmers Grange of Nebraska, interested parties of record in said proceeding and, acting as an attorney at law in behalf of his. clients, prepared and filed pleadings and other documents therein, examined and cross-examined witnesses in the conduct of said proceedings, objected to the introduction of testimony of witnesses adverse to the interests, of his clients and made arguments before said commission in support of the petition and those for whom he appeared.

The evidence shows that the petition and petitions in intervention filed before the commission in behalf of the petitioner and interveners were prepared by the defendant and bore the endorsement “C. E. Childe, Counsel.” Defendant admits that he prepared these pleadings without the assistance of legal counsel and without an attorney at law appearing with him in said proceeding. He examined all-witnesses called by the applicant on direct, redirect and rebuttal examinations and cross-examined all witnesses called by adversary interests and discussed all legal questions raised at the hearing.

The legal questions involved included a knowledge of the statute — making provision for the filing of the petition and the petitions in intervention and a knowledge and understanding of the statute defining the jurisdiction of the railway commission in such cases, as well as the legal training and experience inherently involved in the drafting of such pleadings.

The theory of petitioner was that, as its members were particularly engaged in the transportation of livestock from farms and ranches to market and of return loads of commodities suitable for transportation in livestock trucks from the markets back to the farms and ranches, a reduction in rates on such commodities suitable as a “back haul” to farms, ranches and other agricultural areas in Nebraska would increase the revenue derived from such “back hauls” and at the same time permit farmers, ranchers and others to benefit from such reduced rates. It was also the theory of petitioner that as the commission had prescribed special rates on such commodities as mill feeds as “back hauls,” it could with equal propriety reduce the rates on fencing and building materials in quantity lots. It was also alleged by the petitioner that the rate on fencing and building materials was much higher than those charged by railroads and the interstate rates charged by motor carriers. It was also the theory of the petitioner as expressed in its petition that the intrastate rates applicable to motor carriers were excessive, .unjust and unreasonable, and resulted in the exaction of unreasonable charges and in undue prejudice to intrastate shipments, shippers, receivers,. and carriers by motor truck, and in undue preference to interstate motor truck carriers and shippers and of intrastate shipments by rail, in violation of the laws of the state. Fencing- and building material rates are alleged to have been fixed by the commission at a much higher rate than similar commodities moving in volume, all in violation of the laws of the state. Petitioner then prays that the rate on fencing- and building materials be reduced to meet the objections and eliminate the discriminations pointed out in the petition.

The referee aptly states the legal elements necessary to be contained in the petition in question in the following language: “(a) that there be pleaded and proved the legal interest of the petitioner which entitled him to request the relief prayed for, and the petitioners (or interveners) right to maintain the proceedings; (b) a determination of the persons who, if the order prayed for was granted, would be adversely affected thereby in order that the Commission would acquire jurisdiction to enter the order prayed for on due notice; (c) the legal definitions of terms employed in the statute clothing the Commission with powers in the premises, such as ‘non-discriminatory,’ ‘unjustly discriminatory,’ ‘unduly preferential,’ ‘Lawful rate’ and ‘lawful classification’ and other terms fixing the legal statutory standards; all involved in the issues presented in the petition and petitions of intervention; (d) a. determination whether there is such a legal classification of cargo carriage as a ‘back haul’ on particular commodities and whether it was within the power of the Commission to classify such haul as a separate and distinct classification of freight carriage, and whether a lower rate on such commodities hauled by particular carriers was discriminatory (as a matter of law) as against other classes of carriers; (e) whether it was within the power of the Commission to order such reduction when the haul was to be made ‘at the convenience’ of the preferred carrier ; (f) to determine the legal sufficiency of facts to invoke the jurisdiction of the Commission to enter the order prayed for.”

The record shows that the proceeding before the commission was conducted largely in the manner of a court trial in a court of general jurisdiction. Questions as to the admissibility of evidence, the qualifications of witnesses and the bearing of the evidence upon the issue presented played a prominent part in the hearing at various stages of the proceeding.

The defendant at various times during the course of the hearing was shown to have made use of legal procedures and principles in doing the following: (1) he made an application to consolidate this proceeding with other proceedings submitted to the commission; (2) he made proof of the legal form of the plaintiff organization, its membership and the nature of each as a carrier, its legal interest entitling it to invoke the jurisdiction of the commission, and the action of the plaintiff organization authorizing the commencement of the proceeding; (3) in making an interpretation of pro viso, d, § 3, ch. 142, Laws 193.7, (now subdivision 4 of section 75-224, R. S. 1943) to determine whether the exclusionary proviso applies to a haul of livestock from points outstate to Omaha by a farmer or rancher owning his own truck and hauling his own livestock, which was argued by defendant and ruled on at the hearing; (4) in determining- whether notice had been given to truck carriers of merchandise sufficient to clothe the commission with jurisdiction to enter an order affecting their interest, a point discussed by defendant; (5) in establishing the power of the president of the petitioning organization to speak and bind the organization, a point upon which defendant adduced evidence; (6) in determining the question whether a rate reduction to carriers of livestock on the “back haul” would be discriminatory and prejudicial to commercial truck and rail carriers, a point also discussed by defendant; (7) during the hearing defendant preserved objections to rulings by the commission by noting exceptions thereto in contemplation of a review on appeal; he laid foundations for expert witnesses, he made stipulations regarding the admissibility of evidence and at the close of all the evidence he moved the commission for an order making the rates prayed for effective until a final order was entered on the merits; (8) in considering the question whether the reduction of rates to livestock truckers on building materials was discriminatory in that it would operate to the benefit of a special group of truckers on a particular commodity and whether such preferential rate involved a classification, not authorized by section 15, ch. 142, Laws 1937 (now section 75-248, R. S. 1943).

We conclude that in the proceeding before the commission involved herein and the part taken by the defendant in his conduct thereof, there was involved a need of legal training, knowledge, and skill and constituted the practice of law. It was particularly required in the drafting of the petition, in the interpretation of the legislative powers with which the commission was clothed, in determining the power of the commission to make the order, in the making of a record in contemplation of a judicial review, in establishing the legal qualifications of witnesses to testify and the technical proffer of testimony in conformity to legal standards. In performing such services, and others noted in this opinion, in a representative capacity without license to engage in the practice of law, the defendant engaged in the illegal practice of law within the meaning of the rules announced in the former opinion in this case. State ex rel. Johnson v. Childe, 139 Neb. 91, 295 N. W. 381.

The second count of the information alleges that on April 16, 1935, a hearing was had before the Nebraska State Railway Commission in a proceeding entitled “In The Matter of the Application of the South Omaha Terminal Railway Company for authority to increase rates and charges for switching, loading and unloading, etc., Freight at South Omaha” and that the defendant appeared before said commission in behalf of the Omaha Terminal Railway Company as an attorney at law, although unlicensed to do so. It is alleged that he handled and conducted said proceedings, counseled and advised with said railway company with reference to law and procedural matters, drew and prepared the application and other papers filed therein, examined and cross-examined witnesses and, at the close of the hearing, filed a brief for the guidance and assistance of the commission.

The evidence adduced in support of the allegations contained in the second count is of the same class and character as that shown in support of count one. It would serve no useful purpose to recite the evidence in detail here. We hold that the evidence sustains the charge that defendant performed services therein which required legal training, experience and skill and he, being unlicensed, is guilty of the illegal practice of law as charged in count two.

With reference to counts three, four and five of the information, we agree with the findings of the referee that the state failed to establish that defendant drew and prepared pleadings, conducted any proceeding or made any arguments, oral or written, which required legal training, experience or skill that constituted the illegal practice of law. On each of said counts the evidence is held insufficient to sustain the charge.

The power to define what constitutes the practice of law is lodged with this court. The sole power to punish any person assuming to practice law within this state without having been licensed to do so also, rests with this court. It is the character of the act and not the place where the act is performed that constitutes the controlling factor. An all inclusive definition of what constitutes the practice of law is too difficult for simple statement. We shall not attempt it here, but will follow the practice established by the previous decisions of this court and examine the facts and circumstances of each case and determine whether the defendant purported to exercise the legal training, experience and skill of an attorney at law without a license to do so. Our former decisions supporting these views are collected and discussed in State ex rel. Johnson v. Childe, supra.

The defendant frankly admitted that he performed all the acts which we have held constituted the illegal practice of law as charged in counts one arid two. It is evident that he performed them under the assumption, erroneous, as it was, that he had the right to do so. The imposition of severe punishment under such circumstances would serve no useful purpose. The judgment of the court is that the defendant be adjudged guilty of contempt on each of counts one and two and that he pay into the office of the Clerk of the Supreme Court a fine of $10 on each of said counts, and pay the costs of the action.

Judgment for Relator.