Opinion
No. 38456.
June 9, 1952.
1. Constitutional law — state bar act — integration.
The statute which integrates or unifies the bar of the State does not create a private corporation nor is it a local and private act. Secs. 87, 90(s) Const. 1890.
2. Attorneys — qualifications — power of Legislature to prescribe.
The Legislature has authority to prescribe qualifications for persons engaging in the practice of law in addition to the qualifications that may be prescribed by the rules of court.
3. Attorneys — integrated bar — legislative power.
The State Bar Act does not represent an encroachment by the Legislature upon the powers of the judiciary, and the Legislature has the power to establish an integrated bar. Secs. 8685-8724 Code 1942.
4. Attorneys — suspension for nonpayment of dues — notice — hearing — constitutional law.
The section of the State Bar Act which provides for the automatic suspension of a member who fails to pay his dues after two months' written notice of his delinquency is not unconstitutional on the ground that no judicial hearing is provided on the question of the delinquency. Sec. 8710 Code 1942.
5. Attorneys — State Bar Act — enforcement by bar commissioners.
The commissioners of the State Bar have the right to institute court proceedings to collect delinquent dues and to enjoin the further practice of law by a delinquent member until he has settled all arrears. Secs. 8696, 8707, 8710 Code 1942.
Headnotes as approved by Kyle, J.
APPEAL from the chancery court of Jones County; ROY P. NOBLE, Chancellor.
E.L. Snow, for appellant.
We have found no case holding that an act of the legislature of a state creating a bar association is unconstitutional. On the contrary we have found numerous cases holding that similar acts of the legislatures of sister states are constitutional.
In other states, as in Alabama, Arizona, California, Idaho, Kentucky, Nevada, New Mexico, North Carolina, North Dakota, Oklahoma, Oregon, and Utah, statutes have expressly provided for a state bar or bar integration, and the courts have sustained the validity of these statutes. Thus, in Commonwealth, ex rel. Ward v. Harrington, 266 Ky. 41, 98 S.W.2d 53, a disbarment proceeding, it was held that no unconstitutional delegation of legislative authority was made to the court of appeals by the Kentucky Bar Integration Act providing for the adoption and promulgation by the court of appeals of rules and regulations defining the practice of law, prescribing a code of ethics for attorneys, establishing rules of practice or procedure for disciplining attorneys, providing for organizing and governing a state bar association, composed of attorneys at law in the commonwealth, and prescribing and fixing a schedule of fees for the purpose of creating a fund for the administration of the act. The court said that attorneys, or members of the bar, are "assistants to and part of the government court machine", and that "the means employed in the performance of the work of the machine (designated as a court) in reaching its conclusion (designated as judgment) are prescribed by the laws of the sovereignty", sometimes, possibly, in constitutional provisions, sometimes by legislative enactment and sometimes through rules of the court.
And in Re Sparks, 267 Ky. 93, 101 S.W.2d 194 in which the report of the Board of Bar Commissioners in a disbarment proceeding was confirmed and disbarment ordered, the court, sustaining the Bar Integration Act of Kentucky, said: "The power to regulate the conduct and qualifications of its officers does not depend upon constitutional or statutory grounds. It is a power which is inherent in this court as a court — appropriate, indeed necessary, to the proper administration of justice. That we have, in deference to the Bar Integration Act (Ky. Stat. Secs. 101-1, 101-2), set up a standing Board of Commissioners and machinery to conduct and report on investigations concerning the conduct of attorneys, does not alter the fact that we are but exerting an inherent power . . . The argument that this is an arbitrary power which the court is arrogating to itself or accepting from the legislature likewise misconceives the nature of the duty. It has limitations no less real because they are inherent. It is an unpleasant task to sit in judgment upon a brother member of the bar, particularly where, as here, the facts are disputed. It is a grave responsibility, to be assumed only with a determination to uphold the ideals and traditions of an honorable profession and to protect the public from overreaching and fraud. The very burden of the duty is itself a guaranty that the power will not be misused or prostituted. The power is not made arbitrary merely because it exists in this court as well as in other courts of the commonwealth. If not an arbitrary power in other courts, it is not arbitrary here."
In Louisville Bar Assoc., ex rel. Drane v. Yonts, 270 Ky. 503, 109 S.W.2d 1186, the court cited the Harrington Case (Ky.) supra, and the Sparks Case (Ky.) supra, as authority for upholding the constitutionality of the Kentucky State Bar Act and the rules of court in regard to disciplinary and disbarment proceedings.
The constitutionality of the California State Bar Act was upheld in State Bar v. Superior Ct., 207 Cal. 323, 278 P. 432; In re Petersen, 208 Cal. 42, 280 P. 124, and In re Jones, 208 Cal. 240, 280 P. 964.
The question whether the formation of a corporation had been intended by a statute creating a state bar was before the court, in State Bar v. Superior Ct., 207 Cal. 323, 278 P. 432, where the regulation of the practice of law as contemplated by the State Bar Act of California, a statute providing for the integration of the bar and stating in the title, and also in the body of the act, that "the State Bar of California" is "a public Corporation", was held not to be such a matter of purely private concern as to constitute an attempt to provide for the formation of a private corporation, in violation of a constitutional prohibition against the creation of corporations by special act. The court rejected a contention that the State Bar Act was a local or special law, within the meaning of a constitutional provision inhibiting the enactment of local or special laws granting to any corporation, association, or individual any special or exclusive right, privilege or immunity, since "it requires but a cursory glance at the provisions of the State Bar Act to determine that it has inclusive application to each and every member of the legal profession within the State of California who is actively engaged and entitled to engage in the practice of the law, and that it purports to regulate the admission, conduct, and continuance in the practice of the law of this certain and well-recognized professional class of the body politic coming within the precise limitations of said act."
In Re Scott, 53 Nev. 24, 292 P. 291, (rehearing denied in), 53 Nev. 48, 296 P. 1113, it was held that the State Bar Act of Nevada, which was conceded to be an exact reproduction of the California act, was not within a constitutional provision against the creation of corporations (except corporations for municipal purposes) by special act.
The New Mexico State Bar Act, establishing a board of commissioners of the State Bar consisting of nine members to be chosen from the several judicial districts of the state, whose powers, among others, should include the power to determine and prescribe by rules the qualifications and requirements for admission to the practice of law, and imposing an annual license fee on every member of the state bar, which fee should be paid into the state treasury, there to be kept in a separate fund for use in carrying out the purposes of the act, and authorizing the suspension of members for nonpayment of such license fee, was held, in Re Gibson, 35 N.M. 550, 4 P.2d 643, not to violate provisions of the Constitution prescribing special laws and special taxation, prohibiting the grant by the legislature of special rights, franchises, privileges, immunities, or exemptions, and prohibiting the legislature from making appropriations for charitable or other benevolent purposes, to any person, corporation, association, or institution not under the absolute control of the state. The court held further that the statute was not invalid as an attempt to effect an unconstitutional union of legislative, judicial, and executive functions.
It was held in Re Gibson (N.M.) supra, that the Board of Commissioners, which under the statute, had authority to prescribe and enforce rules for admission to practice of law, to discipline and disbar members of the bar, subject to the review of the Supreme Court, and to make and enforce rules and by-laws not in conflict with laws of the state, was a mere governmental agency without corporate capacity, though its public character, if a corporation, would relieve it from the objection that the act establishing it created a corporation in violation of a constitutional provision commanding the legislature to provide for the organization of corporations by general law, such provision applying to the creation of private, not public, corporations.
In Re Scott, 53 Nev. 24, 292 P. 291, (rehearing denied in), 53 Nev. 48, 296 P. 1113, the court rejected a contention that an act providing for the integration of the bar violated the fundamental principles of government in that those engaged in the practice of law were compelled to accept membership in a corporation in order to practice their profession. The court said: "This contention furnishes the most popular criticism of the members of the profession opposed to the law. As hereinabove stated, the membership, character, and conduct of those entering and engaging in the legal profession has, since the inception of our state government, been regarded as the proper subject of legislative regulation and control; the right to follow any of the common industrial occupations of life does not extend to the pursuit of professions or vocations of such a nature as to require peculiar skill or supervision for the public welfare. In the adoption and approval of the legislation under review, the legislature evidently considered that the time had come in the administration of the law that attorneys and counselors at law, who constitute an integral and indispensable unit in the administration of justice, should be organized as a body politic, with delegated police power subject to the control of the supreme court and the legislature for the benefit of the public welfare in a matter of great public concern."
And it is held in State v. Wilson, (Ala.), 176 So. 620, that the legislature has the undisputed right to exact a license from those engaging in the practice of law, and may properly direct a portion of such license fee to be paid to the State Bar Commission.
There is an annotation in 114 A.L.R. 161, etc., which sets forth the cases wherein the constitutionality of legislation of the character here under consideration is discussed and passed on.
In view of the foregoing, we respectfully submit that the learned chancellor was in error in holding that the integrated bar act is unconstitutional, and he should have held that it was constitutional and that appellee's demurrer should have been overruled.
T.C. Hannah, for appellee.
We are not here contending (and it is wholly unnecessary to address ourselves to this point) that the Legislature of the State of Mississippi could or could not pass a constitutional integrated bar act. But what we said in the lower court and what we are saying here is that the Legislature of the State of Mississippi did not pass a constitutional integrated bar act.
Before addressing ourselves to the infirmities of the Mississippi Act, it is well to get before us some of the very general and underlying principles on which an integrated bar act rests. In the case headed "Integration of bar case" from the Wisconsin Supreme Court, 244 Wis. 8, 11 N.W.2d 604, 151 A.L.R. 586, we find some interesting statements. On page 607 of this opinion, we find the following: "No sound distinction can be drawn with respect to attorneys at law between the power to admit and the power to remove under the terms of the Constitution.
"Numerous statutes have been passed making provision in aid of the judicial department in reaching a proper selection of those qualified for admission as attorneys to practice in the courts. It is not necessary to review them in detail. Like many other statutes, they have been enacted to enable the courts to perform their duties. They have been enacted, also, in the exercise of the police power to protect the public from those lacking in ability, falling short in learning, or deficient in moral qualities, and thus incapable of maintaining the high standard of conduct justly to be expected of members of the bar. No statute can control the judicial department in the performance of its duty to decide who shall enjoy the privilege of practicing law."
And again on page 608 of the same opinion, it is said: "It has been held by every court to which the question has been presented that the court has power to integrate the Bar and that the integration of the Bar is a judicial and not a legislative function.
"In re Integration of Nebraska State Bar Association, 133 Neb. 283, 275 N.W. 265, 114 A.L.R. 151; In Re Richards, 333 Mo. 907, 63 S.W.2d 672; Clark v. Auston, 340 Mo. 467, 101 S.W.2d 977; In Re Pate, (Mo. App.), 107 S.W.2d 157; Campbell v. Third District Committee of Virginia State Bar, 179 Va. 244, 18 S.E.2d 883; Commonwealth ex rel. Ward v. Harrington, 266 Ky. 41, 98 S.W.2d 53; In Re Sparks, 267 Ky. 93, 101 S.W.2d 194. For extended citation of authorities, see Note appended to the cases in 114 A.L.R. 151, at page 161."
Again, we quote from pages 613 and 614 as follows:
"Heretofore courts have dealt with attorneys as individuals. It has denied the right of persons to practice before it who are unworthy of the trust and confidence of clients and of those who are not properly qualified and learned in the law. Chapter 315 deals with the members of the Bar in their aggregate or in a corporate capacity. To that extent it is an innovation in the law of this state. Inasmuch as the corporate body will include all of the persons admitted to practice before the court, the court must of necessity, in the exercise of its judicial function, retain some measure of control over the organization; otherwise the court would be deprived of its unquestioned right to determine who shall be admitted to the practice of the law."
"Because of the familiarity of the court with rules of procedure and with the conduct and qualifications of attorneys, it is in the public interest that the integration of the Bar should be by order of court. Not only is the court more familiar with the matters to be dealt with but it is in regular session throughout the year. Necessary adjustments and amendments can be made with a minimum of effort and inconvenience. No doubt these considerations prompted the enactment of ch. 315.
"William H. Spohn, Esq., in an able and helpful brief filed amicus curiae, argues that the court should treat ch. 315 as a memorial invoking the power of the court to integrate the Bar for the reason that the court has the power to integrate the Bar without the direction or prompting of the Legislature and regardless of whether the Legislature purports to confer any power in this regard upon the court.
"A somewhat similar course has been followed in Nebraska, Montana, Oklahoma, Florida and some other states."
As above stated, it is not our purpose here to speculate on what the Legislature may have done, or what the Legislature could have done. What we are saying is that what the Legislature did do is contrary to the provisions of the Constitution of the State of Mississippi and of the United States, and is utterly null and void. The above quotations unqualifiedly support our arguments in this respect; and the expressions of our own court where our Bar Act has been involved thoroughly and conclusively demonstrates that our position is perfectly sound.
Before proceeding with a dissection of the Mississippi Act as to its constitutionality, let us digress for a moment to say there is no rhyme or reason for this proceeding.
There is nothing in the present statutes that authorized or even suggests that the Bar Commissioners have the authority to institute and prosecute this suit; but on the contrary the statutes make negative any such ideas.
Sec. 8710 which is a rescript of Sec. 25 of Chap. 121, Laws 1932, is in all respects a self-executing provision. The bill of complaint charges and the demurrer admits that the appellee in this case has never paid any bar dues, and under the provisions of this Sec. 8710 of the Code, it is made the duty of the Secretary of the Bar Association to call the attention of the appellee to this fact, and to thereupon give notice to the judges of the chancery, circuit and county courts of the fact that appellee has forfeited his right to engage in the practice of law.
This court must assume that the Secretary of the State Bar Association performed the duties enjoined upon the Secretary by this Act, and consequently advised the judges of the chancery court, circuit court, and county court of Jones County, Mississippi, that the appellee was no longer a member of the State Bar Association, and consequently unauthorized to further indulge in the practice of law. In view of the fact that the appellee has continued in the practice of law for these 18 years under these circumstances, logic brings the next conclusion that the judges of these respective courts have construed this Act as being unconstitutional — for it necessarily follows that this Court is not going to presume that the judges of these several courts permitted a man to continue to practice law who was unauthorized to practice for 18 consecutive years.
It is our very serious contention that the proceeding as above outlined was and is the full measure of the action the State Bar Act authorized as against this appellee. In other words, it is our contention that the Bar Commissioners were absolutely without right or authority to institute and prosecute this proceeding to collect the $90.00 due under the Act, and to enjoin this appellee from further practice.
May we respectfully suggest that under the several decisions of our own Court, as well as under the authority we have already cited and quoted, the judges of these respective courts have the right to pass on the personal fitness of an attorney who has been legally admitted to the bar to continue to practice in the courts of these respective judges.
It will be seen from the foregoing quotations not only that the court has the inherent power to integrate the bar; but on the other hand, that the Legislature does not have such power. Our primary thought in this case is that Chap. 121 Laws 1932 falls within the provisions of Sec. 90 of the Constitution of the State of Mississippi, and particularly paragraph "s" wherein it is declared, "the Legislature shall not pass local, private or special laws in any of the following enumerated cases, but such matters shall be provided for only by general laws." And paragraph "s" reads: "Regulating the practice in courts of justice."
In 1932 when the Legislature approached this subject, there were general laws in effect providing how a person could gain admission to the bar, and also providing how that admission could be lost or terminated; this scheme being covered (with some statutory changes and amendments) by Secs. 8647 to 8684, inclusive, of the Code of 1942. Without repealing or particularly changing or modifying these provisions, the Legislature superimposed a local or special law, as set forth in what are now Secs. 8645 to 8724, inclusive, of the Code of 1942.
Sec. 88 of the Mississippi Constitution, among other things, provides "the Legislature shall pass general laws, under which local and private interests shall be provided for and protected."
It is our very serious belief and contention that the various statutes that were in effect in 1932 sufficiently met the requirements of Secs. 88 and 90 of the Mississippi Constitution, and that this additional enactment by the Legislature is in direct conflict with these two sections and must be condemned for that reason.
This proceeding, in the last analysis, amounts to nothing more or less than a proceeding to disbar the appellee from the practice of law.
In re Higgins, 194 Miss. 851, 13 So.2d 829, the Court says: "Inasmuch as proceedings to disbar must be conducted by a formal legal procedure so as in all essential respects to conform to due process, it follows that the assistance of lawyers must be brought to bear in such proceedings, even if the lawyers themselves did not initiate it, and here again the average member of the bar shrinks from the task and approaches it as if it were not his business any more than anybody else's and ordinarily with no zeal or enthusiasm for its performance such as he would devote to cases for his own clients."
The State Bar would have the courts of Mississippi deprive this appellee of a valuable and inalienable right, not because of moral delinquency or because of lack of legal learning and attainments, but solely and only because he declines to pay an annual stipend of $5.00 to an association that really does not have any legal duties or responsibilities. To put it another way, it is respectfully submitted that the Legislature of the State of Mississippi, after having provided the means and methods by which Jeff Collins could be ousted from the Bar, does not now have the right to tell the Supreme Court of Mississippi that it must refuse to let Jeff Collins appear before the Supreme Court unless he pays $5.00 per year to the Bar Association. This is simply an encroachment by the legislative department on the powers, prerogatives and rights of the judicial, and is absolutely null and void.
The Board of Commissioners of the Mississippi State Bar filed a bill of complaint in the Chancery Court of the Second Judicial District of Jones County against Jeff Collins, an attorney at law, engaged in the practice of law in Jones County, seeking to enjoin and prohibit the defendant from the further practice of law in the State of Mississippi, until he has paid to the treasury of the State Bar the sum of $90 alleged to be due and owing by him to the Mississippi State Bar as dues at the rate of $5 per year for the years 1932 to 1949, inclusive, and seeking to recover a decree against him for the above stated amount.
The complainants in their bill alleged that the defendant had been engaged in the practice of law in the State of Mississippi for the period of eighteen years next preceding the date of the filing of the bill, and that he had failed and refused to pay his membership dues during that period of time; that he had been duly notified of his delinquency by written notice mailed to him by the Secretary of the State Bar more than two months before the filing of the bill of complaint; that his delinquency had been duly reported by the secretary to the board of commissioners; and that the secretary of the State Bar had notified the courts of the county of his residence that he had been suspended from the membership in the State Bar, because of his delinquency, and had notified the defendant in writing of his suspension. And the complainants alleged in their bill that unless the injunction prayed for was granted, the defendant would continue to practice law contrary to the provisions of the statute. A copy of a resolution of the State Bar declaring that the defendant, and other members of the Bar who were delinquent, had been suspended from membership because of failure to pay their dues, and directing that suit be filed in the chancery court to recover the amount of the dues which had not been paid, and asking for an injunction prohibiting the defendant from the further practice of law, was attached to the bill of complaint.
The defendant demurred to the bill of complaint, and alleged twelve grounds of demurrer. The chief grounds of demurrer alleged were: (1) That the complainant had no right under the State Bar act to file such suit; (2) that the Legislature was without authority to impose the special assessment of $5 on members of the Bar as a condition to the right to continue the practice of law; (3) that the State Bar act was unconstitutional in that it violated Section 87 and paragraph (s) of Section 90 of the Constitution of the State of Mississippi, and the 5th and 14th amendments of the Constitution of the United States; (4) that the complainants had no jurisdiction to proceed against the defendant because the defendant had already been suspended as a member of the State Bar; (5) that the alleged suspension of the defendant as a member of the State Bar was invalid, for the reason that such suspension could be effected only by the judgment of a court of competent jurisdiction; (6) that the proceeding in this case is in effect a proceeding to disbar the defendant from the practice of law, and that the allegations of the petition are insufficient to constitute the basis of a disbarment proceeding.
The court, after hearing the arguments on the demurrer, entered a decree sustaining the demurrer. The complainant declined to plead further and the court dismissed the bill of complaint. The chancellor, in ruling on the demurrer, dictated into the record a statement of his reasons therefor, which were (1) that the section of the State Bar act which provided for the suspension of an attorney who fails to pay his dues without notice to him of the charge and without a hearing before the Bar Commissioners was unconstitutional, and (2) that the board of commissioners of the State Bar had no right under the act to institute the proceeding against the defendant.
The Mississippi State Bar was created by Chapter 121, Laws of 1932, Sections 8685 to 8724, Code of 1942, and by the act itself all persons admitted to practice law in the State are made members of the organization. The governing authority of the State Bar is vested in a board of commissioners consisting of the president of the State Bar and as many members as there are circuit court districts in the State. The members of the board of commissioners are elected each year by the members of the Bar in their respective districts. A majority of the entire membership is required to constitute a quorum for action upon any questions that may come before the board except such questions as the statute or the by-laws of the organization may require to be passed upon by a larger portion of the membership. The board of commissioners is required to elect a secretary, who shall perform the duties of treasurer. It is made the duty of the secretary to keep the minutes of all meetings of the board of commissioners, and also the minutes of each meeting of the State Bar. The secretary is required to maintain an office at the State Capitol. She is paid a salary. No other officer of the State Bar can be paid a salary. But the traveling expenses of the members of the board of commissioners attending the meetings of the board, and the expenses of committees making trips on business of the association, are paid out of the funds of the association.
Under Section 8696, Code of 1942, enrollment on the list of members of the association and the payment of annual dues, as required under the act, is made a prerequisite to the continued practice by any lawyer engaged in the practice of law in the State. Under Section 8698 all men in the armed services of the United States, who have a license to practice law in the State, are exempt from the payment of dues. Section 8699 provides that: "Each member of the association engaged in the practice, or in order to possess authority to practice law in this State, shall pay dues each year in the sum of $5.00. All dues shall be paid for the same period, that is, for the period of one year beginning on the day and month to be determined as in Section 26 (Sec. 8711) hereof provided. The dues shall be paid to the secretary of the association."
Section 8707, Code of 1942, provides that: "The State Bar shall be governed by the Board of Commissioners which shall have the powers and duties in this Act conferred and which shall be charged with the executive functions of the State Bar and with the duty to enforce the provisions of this Act." Section 8708 provides (1) that the board shall, subject to the approval of the justices of the Supreme Court, formulate rules governing the conduct of all persons admitted to practice; (2) that the board shall investigate and pass upon all complaints that shall be made concerning the professional conduct of any person engaged in the practice of law; (3) that the board may appoint committees and delegate to such committees the power and authority possessed by the board itself, but the authority to pass upon the conduct of attorneys and to take action against or to discipline attorneys may not be delegated to a committee; and (4) the board shall render advisory opinions, upon the written request of any member of the association, as to the validity or propriety of any proposed act or course of conduct.
Section 8709 defines the duties of the State Bar as follows: "It shall be the duty of the Mississippi State Bar, by and through its president, to recommend to the State Legislature such legislation relating to the courts, to matters of pleading, practice and procedure, and any other legislation which in its judgment will improve the courts and the law, or render the members of the bar more efficient as ministers of justice and the courts more efficient as instrumentalities for its attainment." And the association is authorized "to hold and conduct educational and social meetings and activities among the members of the bar, to publish journals and generally to do such things as in their judgment may tend to improve the educational and ethical standing of the bench and bar."
Section 8710 provides that any member failing to pay any dues after the same become due, and after two months' written notice of his delinquency mailed to him by registered mail, addressed to his usual place of abode, shall thereby stand suspended from membership in the State Bar. And it is made the duty of the secretary, upon any member becoming suspended as above stated, to notify the courts of the county of his residence of such fact, by mailing a notice thereof to the presiding judge and to the clerk of the court. Any member who has been suspended for non-payment of dues shall be reinstated upon payment of the delinquent dues, and the secretary, upon such payment, shall notify the court of his county of such fact.
Other sections of the act authorize the board of commissioners to investigate complaints or charges of misconduct on the part of any member of the Bar and to institute proceedings in the circuit or chancery court for the disbarment of such member from the practice of law.
Bar integration has been accomplished in many of the states during the last thirty years. In some of the states it has been accomplished by act of the Legislature, incorporating all members of the bar into a state bar association and prescribing its powers and functions; in other states it has been accomplished by rules of court promulgated under legislative authority; and in some states it has been accomplished by rules of court without express legislative authority. While the statutes or court rules under which integrated bars have been organized differ to some extent, integrated bars have the common characteristics of being organized by the state or under the direction of the state, and of being under its direct control; and in effect they are governmental bodies. In the strictly integrated bar all practicing attorneys are required to be members, and they are subject to the rules of the bar, including such provisions as the requirement for the payment of an annual fee to be used by the organization for administrative purposes; and they may be proceeded against for unethical conduct, and may be called to account for such acts of misconduct as may evince unfitness for the practice of law. Annotation 114 A.L.R. 161.
The requirement of membership in an integrated bar with the payment of a membership fee as a prerequisite to the continued practice of law has been upheld in the states which have established integrated bars. State Bar of California v. Superior Court, 1929, 207 Cal. 323, 278 P. 432; Hill v. State Bar of California, 14 Cal.2d 732, 97 P.2d 236; In re Mundy, 202 La. 41, 11 So.2d 398; Ayres v. Hadaway, 303 Mich. 589, 6 N.W.2d 905; In re Platz, 60 Nev. 296, 108 P.2d 858; Integration of Bar Case, 244 Wis. 8, 11 N.W.2d 604, 12 N.W.2d 699, 151 A.L.R. 586; In re Integration of State Bar of Oklahoma, 185 Okla. 505, 95 P.2d 113; In re Gibson, 35 N.M. 550, 4 P.2d 643; Louisville Bar Ass'n ex rel. Drane v. Yonts, 270 Ky. 503, 109 S.W.2d 1186.
Chapter 121, Laws of 1932, was enacted several years after similar acts had been passed in Alabama, California, Nevada and other states, and after court tests had been made in some of those states to determine the constitutionality of such legislation, and in defining the powers of the state bar and its board of commissioners special care was taken to avoid any encroachment upon the powers of the judiciary relating to the promulgation of rules of practice and procedure in the courts or any invasion of the constitutional rights of the accused in a disbarment proceeding. As pointed out above, the board of commissioners are charged with the duty of formulating rules governing the conduct of persons admitted to practice law, but they can do this only with the approval of the justices of the Supreme Court. The board is charged with the duty of investigating and passing upon complaints that may be made concerning the professional conduct of any person engaged in the practice of law; but if after such investigation is made it appears that disbarment proceedings should be instituted, such proceedings must be instituted in the proper court and the constitutional rights of the accused are fully protected at every stage of the proceeding. The recommendations of the bar itself as to methods of improving the rules of pleading, practice and procedure cannot be put into effect until they are enacted into law by the legislature.
(Hn 1) We do not think that Chapter 121, Laws of 1932, violates Section 87 or paragraph (s) of Section 90 of the State Constitution. In view of its membership, its functions and the purposes of its creation, the State Bar, created by the act, possesses none of the attributes of a private corporation. And the State Bar act is in no sense a local or private act. It is general in its application and applies to all lawyers in the state who are actively engaged in the practice of law. The State Bar is in reality an agency of the state created in the exercise of the police power of the state for the purpose of regulating more effectively the practice of law and for the purpose of encouraging the study of improved methods of procedure and practice in the courts.
(Hn 2) The legislature in the exercise of its police power, and in the performance of its duty to protect the public against imposition and incompetence of persons professing to be qualified to practice law, has authority to prescribe qualifications for persons engaging in the practice of law, in addition to the qualifications that may be prescribed by the rules of court. In re Mundy (La.), supra. As stated by the Nevada Court in the case of In re Scott, 53 Nev. 24, 292 P. 291, the educational qualifications, the moral fitness and the professional conduct of persons entering into and engaging in the practice of law have been regarded at all times as proper subjects of legislative regulation and control. The right to follow any of the common industrial occupations of life does not extend to the pursuit of professions or vocations of such nature as to require peculiar skill or special supervision for the protection of the public welfare.
(Hn 3) The State Bar act does not represent an encroachment by the legislature upon the powers of the judiciary, as contended by the appellee's attorneys in their briefs. It is well settled by the decisions of the courts of other states, in which bar integration has been effected by legislative act, that the legislature has the power to establish an integrated bar. State Bar of Calif. v. Superior Court, supra; In re Scott (Nev.), supra; Ex parte Thompson, 228 Ala. 113, 152 So. 229, 107 A.L.R. 671. (Hn 4) We do not think that Section 8710 is unconstitutional because it provides for the automatic suspension from membership in the State Bar of a member who fails to pay his dues after two months' written notice of his delinquency has been mailed to him by the secretary. No judicial hearing on the question of the member's delinquency in the payment of his dues is provided for in the statute; and in our opinion no judicial hearing is required to make valid the suspension. It is within the power of the member at any time to have himself reinstated by payment of the delinquent dues to the secretary. The question with which we are dealing here is wholly unlike the question presented in a case where suspension or disbarment of a member is asked for because of misconduct evincing unfitness to practice law. The sections of the State Bar act relating to suspension or disbarment of members who have been guilty of conduct evincing untfiness to practice law provide for notice and a hearing and contain ample safeguards to protect the rights of the accused, and the proceeding in a case of that kind is judicial in its nature. But no constitutional rights are involved in the automatic suspension from membership in the State Bar of any member who fails to pay his dues after two months' written notice of his delinquency, as required by Section 8710.
In the case of In re Oliver, 1939, 97 Utah 1, 89 P.2d 229, 233, the Court said that a suspension of an attorney as a member of the State Bar for nonpayment of dues comes automatically without hearing. No hearing is contemplated. "It terminates solely the right to exercise the privileges of the status of a member. The termination of that right for such reasons casts no reflection upon the member's moral qualifications."
In the case of Hoodenpyl v. State Bar of Oklahoma, 1936, 178 Okla. 264, 62 P.2d 980, the Court held that suspension of a member of the bar, after the giving of statutory notice, for failure to pay annual dues, was proper, although he had been given no trial or hearing. Under the Oklahoma statute the annual membership fee for active members was $5.00 payable on or before February first of each year. Section 4254 of the Oklahoma Statutes 1931, provided that: "Any member, active or inactive, failing to pay any fees after the same become due, and after two months' written notice by registered mail of his delinquency, must be suspended from membership in The State Bar." In its opinion approving the findings of the Board of Governors that the petitioner was legally suspended and that he engaged in the practice of law during the period of such suspension, the Court said: "As we view it, the language of the statute is not susceptible of the destruction that a delinquent member of the Bar may demand and be granted a hearing before he is suspended for non payment of his annual dues. From the defendant's own testimony, we can reach no other conclusion than that the finding of the Board of Governors is correct."
In the case of In re Platz, 1940, 60 Nev. 296, 108 P.2d 858, 862, the Court had under consideration Section 46 of the state bar act of that state, which provided in part that "'Any member * * * failing to pay any fees * * * and after two months' written notice of his delinquency, must be suspended from membership in the state bar.'" And the Court in that part of its opinion dealing with the above mentioned Section 46 said: "There is no merit in the claim that the order of the supreme court was invalid because made without notice and therefore denied petitioner due process of law. We are satisfied that Section 46 cannot be construed as affording a delinquent the right of a hearing before he can be suspended. The statute provides written notice and gives a reasonable time thereafter for one in default to renew his good standing in the state bar. A hearing would not be of any advantage to the delinquent, and the statute itself preserves to him the right of reinstatement. In the instant case petitioner admits his delinquency and that he received the statutory notice as to such delinquency. He also admits that he received notice of the order of the supreme court suspending him from membership in the state bar, and that he did thereafter practice law." See State ex rel. McCloskey v. Greathouse, 55 Nev. 409, 36 P.2d 357.
In the case of State v. Wilson, 27 Ala. App. 560, 176 So. 620, the Court held that the legislature has the right to exact a license from those engaged in the practice of law, and to direct that a portion of the license exacted from those engaged in the practice of law be paid to the State Bar Commission. And the Court held that a statute exacting a license of $25 from those engaged in the practice of law and directing that $10 of the amount be paid to the State Bar Commission was constitutional.
In the case of In re Mundy (La.), supra, the Court held that the annual dues levied by the Louisiana State Bar Association under the Louisiana statute and rules of court against member attorneys were not unenforceable on the ground that they deprived the attorneys of their freedom to join the association.
We think that the chancellor erred in holding that Section 8710, Code of 1942, was unconstitutional for the reason that it provided for the suspension of an attorney who failed to pay his dues without notice and without a hearing on the charge before the board of bar commissioners. (Hn 5) We think that the chancellor was also in error in holding that the board of commissioners had no right under the State Bar act to institute the proceeding against the defendant.
Section 8707, Code of 1942, expressly provides that the board of commissioners shall be charged with the duty of enforcing the provisions of the State Bar act, including the provisions of the above mentioned Sections 8696 and 8710, Code of 1942.
We think that the objections urged by the appellee's attorneys against the provisions of the State Bar act on the constitutional grounds alleged in the demurrer filed in the lower court are not well taken; and that the demurrer should have been overruled. The allegations of the bill of complaint filed by the board of bar commissioners, if proved, constitute sufficient grounds for the granting of the relief prayed for in the bill of complaint. And for the reasons stated above the judgment of the lower court sustaining the demurrer filed by the defendant and dismissing the bill of complaint is reversed, and judgment is entered here overruling the demurrer, and the cause is remanded to the lower court for further proceedings in harmony with the views hereinabove stated.
Reversed and remanded.
All Justices concur.