In Re Edwards

266 P. 665, 45 Idaho 676, 1928 Ida. LEXIS 31

• Court: Idaho Supreme Court
• Decided: March 3, 1928
• Docket: No. 4980a.
• Status: Published

Opinions

BUDGE, J.

On or about June 25, 1926, the board of commissioners of the Idaho State Bar appointed a committee to investigate the professional conduct of G. H. Edwards, an attorney of this court. Pursuant to such appointment, the committee proceeded to investigate certain charges lodged against said attorney. Witnesses were called and examined in support of, and in opposition to, the charges so filed. At the conclusion of the hearing, said committee made a report in writing to the board of commissioners. Thereafter, on or about August 16, 1926, the board made an order directing that Edwards be proceeded against for such alleged unprofessional conduct as was disclosed in the report of the investigating committee, whereupon a trial committee was appointed and a formal complaint lodged. In the for.mal complaint, Edwards was charged with conspiracy to extort money, and with divulging secrets of his client, one Whitney, without the latter’s knowledge or consent. To the formal complaint Edwards filed his answer. A hearing was duly had before the trial committee. Thereafter, the committee made findings of fact and conclusions, in which it found that Edwards was not guilty either of conspiracy or of divulging secrets of his client without the knowledge or consent of the latter, as alleged in the formal complaint, but recommended that Edwards be suspended from the practice for one year, the recommendation of suspension being based upon certain letters written by Edwards and introduced upon the hearing in support of the charges of conspiracy contained in the formal complaint. The board of commissioners x’eviewed the findings, conclusions and recommendation of the trial committee and modified and enlarged the same, in that the board found, first that Edwards was guilty of conspiracy; second, that he was guilty of giving away the secrets of his client without his client’s knowledge or consent; and, thix’d, that he was guilty of writing certain letters, “and that whether the writing thereof was misconduct on his part as an attorney and counsellor was in issue .... the letters written by Edwards show such a lack of propriety and regard for professional ethics as would bring into disrespect the courts of justice and judicial officers of the state of Idaho and constitute a violation of the rules of the Idaho state bar,” and entered its judgment, subject to the approval of the supreme court, suspending Edwards from the practice of law within this state for a period of one year, the order of suspension to become effective upon the approval by the supreme court of the judgment of suspension so entered.

Within thirty days after the entry of the judgment of suspension, Edwards duly filed a petition in this court asking that the proceedings of the commissioners be reviewed and that the same be disapproved; that the order of suspension be vacated; that the findings and conclusions of the commissioners be stricken from the files; and for such other and further relief as to the court might seem just and proper.

These proceedings are here for review and by virtue of Sess. Laws 1923, chap. 211, p. 343, and the amendments thereto as contained in Sess. Laws 1925, chaps. 89 and 90, pp. 124, 128.

Numerous assignments of error are made by petitioner attacking the constitutionality of the provisions of the foregoing statutes. It is insisted that they contravene art. 3, see. 19, and art. 11, sec. 2, of the constitution of this state.

Art. 3, sec. 19, reads in part as follows:

“The legislature shall not pass local or special laws in any of the following enumerated cases, that is to say: ....

“Creating any corporation.”

Art. 11, sec. 2 provides in part:

“No charter of incorporation shall be granted, extended, changed or amended by special law,” except in certain cases not material herein.

If petitioner is correct that the acts involved are in toio unconstitutional and void, it necessarily follows that all of the proceedings thereunder against him are vitiated and of no force or effect, and must be dismissed. We are, therefore, confronted at the outset with the question whether the acts, considered as a whole, create a corporation in violation of the sections of the constitution set out above.

The original act, Sess. Laws 1923, chap. 211, p. 343, was challenged in Jackson v. Gallet, 39 Ida. 382, 228 Pac. 1068, upon the same grounds. The constitutionality of the act was not, on these grounds, decided by a majority of the court. Certain provisions of the original act were pointed out and discussed which led the writer to reach the conclusion, as the act then stood, that it was unconstitutional in that it created a corporation and was a special act passed for that purpose, in conflict with art. 3, sec. 19, and art. 11, sec. 2, of the constitution, and therefore void.

The legislature in 1925, Sess. Laws 1925, chaps. 89 and 90, pp. 124, 128, amended the act of 1923 in a number of important particulars. The question therefore arises whether the amendments cured the defects pointed out in Jackson v. Gallet, supra, or removed such objections as were thought fatal to the constitutionality of the act. *

Sec. 2 of the original act, provided, among other things:

“ .... The board shall have perpetual succession, use a common seal and be authorized to receive gifts and bequests designed to promote the objects for which it is created and the betterment of conditions surrounding the practice of law.....”

These provisions were eliminated by the amendment to see. 2 in the Session Laws of 1925, chap. 89. Likewise removed was the power of the board to make and enforce rules, regulations and by-laws, the original act being amended by chap. 89, supra, to provide that rules and regulations made by the board shall, before becoming effective, be submitted to and approved by the supreme court. Under the amendment the board of commissioners of the Idaho state bar is without perpetual succession, without the right to receive and grant property in its name or to purchase or hold property, either real or personal, and without authority to have a common seal. 'Without these attributes, can it be said that the act as amended is unconstitutional, in view of the rule that, before a legislative act is held unconstitutional, it should clearly appear that it infringes some provision of the constitution? (Noble v. Bragaw, 12 Ida. 265, 85 Pac. 903; Gillesby v. Board of County Commrs., 17 Ida. 586, 107 Pac. 71.) A doubt as to the constitutionality of an act should be resolved in its favor; and it is the duty of the court to adopt such a construction as will sustain the enactment, if its language will permit. (Grice v. Clearwater Timber Co., 20 Ida. 70, 117 Pac. 112; Continental etc. Inv. Co. v. Hattabaugh, 21 Ida. 285, 121 Pac. 81; Smallwood v. Jeter, 42 Ida. 169, 244 Pac. 149.) A majority of the court is of the opinion that the acts do not ereatelTcorporation. No useful purpose could be served by a discussion of the numerous authorities to which our attention has been called in favor of and against the con stitutionality of these acts and acts analagous thereto. We have concluded from a very careful consideration of the acts, the authorities cited for and against their validity, and such independent investigation as we have been able to make, that they are constitutional, except as to certain parts thereof to which attention will be given.

See. 8 of the original act provides:

“The board of commissioners shall have power to determine, by rules, the qualifications and requirements for admission to the practice of the law and to conduct examination of applicants, and they shall from time to time certify to the supreme court names of those applicants found to be qualified. The approval of the persons whose names are so certified, by the supreme court, shall entitle them to be enrolled in the bar of the state, and to practice law. The board shall formulate rules governing the conduct of all persons admitted to practice and shall investigate and pass upon all complaints that may be made concerning the professional conduct of any person admitted to the practice of the law. In all cases in which the evidence, in the opinion of a majority of the board, justifies such a course, they shall take such disciplinary action by public or private reprimand, suspension from the practice of the law, or exclusion and disbarment therefrom, as the case shall in their judgment warrant. Upon the making of any order by the board suspending or disbarring any member of the Idaho state bar from the practice of .law, the board shall cause a certified copy thereof to be immediately filed with the clerk of the supreme court. The supreme court may in any case of suspension or disbarment from practice review the action of the board, and may on its own motion, and without the certification of any record, inquire into the merits of the case and take any action agreeable to its judgment. The board of commissioners shall also have power to make rules and by-laws not in conflict with any of the terms of this act concerning the selection and tenure of its officers and committees and their powers and duties, and generally for the control and regulation of the business of the board and of the Idaho state bar.

“The board of commissioners shall also have power to provide for the discipline of its officers and the members of its committees in the event of refusal, neglect, failure or corrupt or wrongful performance of their respective duties. ’ ’

This section cannot be sustained in its entirety, if it be construed to confer judicial powers upon the board. Such rules as it may adopt which do not receive the approval of the supreme court and become the rules of this court, prescribing the qualifications and requirements for admission to practice law and the manner in which examinations shall be conducted, are without force or effect, since by sec. 12 of chap. 89 (Sess. Laws 192'5, p. 127) it is provided:

“The rules and regulations made by the Board shall before becoming effective, be submitted to and approved by the Supreme Court of the State of Idaho.”

It will not be seriously contended that the supreme court is bound to give its approval to the admission of such persons only, to practice law, whose names are certified by the board.

That portion of sec. 8 which provides that “The board of commissioners shall also have power to provide for the discipline of its officers and the members of its committees in the event of refusal, neglect, failure or corrupt or wrongful performance of their respective duties,” must be stricken from the act, as void, for the reason that it confers upon the board judicial powers. The board is not clothed with power to inflict punishment, reprimand publicly or privately, discipline members of the bar or members of committees appointed by it.

Under rules formulated by the board, and adopted by the supreme court, empowering the board to investigate and pass upon all complaints that may be made concerning the professional conduct of any person admitted to the practice of the law, these rules are not subject to any constitutional inhibition, since the board acts merely in an administrative capacity and as an arm of the supreme court, clothed under its rules with the power to make investigations and return to the supreme court its findings and conclusions thereon. It follows, therefore, that that portion also of sec. 8 of the original act which provides: “ .... In all cases in which the evidence, in the opinion of a majority of the board, justifies such a course, they shall take such disciplinary action by public or private reprimand, suspension from the practice of the law, or exclusion and disbarment therefrom, as the ease shall in their judgment warrant,” is an attempt upon the part of the legislature to clothe the board with judicial powers, and is therefore void.

Sec. 11 of the original act provides:

/'"“The board of commissioners shall establish rules govern- f ing procedure in cases involving alleged misconduct of memj bers of the Idaho state bar, and may create committees for J the purpose of investigating complaints and charges, which committees may be empowered to administer discipline, including suspension or disbarment from the practice of law, Üin the same manner as the board itself, but no order for the suspension or disbarment of a member shall be binding until approved by the board.....”

Since no power can be conferred upon the board to administer discipline, including suspension or disbarment from the practice, a committee appointed for the purpose of investigating complaints and charges would clearly be without power to administer discipline, including suspension or disbarment from the practice, such powers being judicial and not administrative, and not within the power of the board or any committee appointed by it. But it does not necessarily follow that the board is without power to appoint committees for the purpose of investigating complaints and charges against members of the bar and reporting their findings to the board.

We are of the view that we are strictly within the well-known rule of law that where certain provisions of an act' are invalid and others valid, the latter are not affected by the void provisions, unless they are plainly dependent on each other and so inseparably connected that they cannot be divided without defeating the object of the act. The invalid provisions of the act, heretofore pointed out, ’and possibly there are others, together with the valid provisions, are not so dependent upon each other or so inseparably connected that the invalid cannot be separated from the valid, and the act upheld. (Knight v. Trigg, 16 Ida. 256, 100 Pac. 1060; Gillesby v. Board of Commrs., supra; State v. Bird, 29 Ida. 47, 156 Pac. 1140; In re Bruen, 102 Wash. 472, 172 Pac. 1152; In re Mills, 104 Wash. 278, 176 Pac. 556; In re Ward, 106 Wash. 147, 179 Pac. 76; McVicar v. State Board of Law Examiners, 6 Fed. (2d) 33.)

It is urged by petitioner that the act as amended violates the provisions of art. 1, sec. 13, of the constitution, which provides, inter alia:

“ .... No person shall be ... . deprived of life, liberty or property without due process of law.”

We are by no means convinced that petitioner is denied due process of law. Provision is made in the act for a full and complete hearing of all charges or complaints lodged against a member of the bar, and for a review before the board, coupled with a review by the supreme court of what in effect would be findings of a fact-finding committee, the facts and law both being subject to review and final disposition by the supreme court. The act specifically provides ■ (sec. 8):

“ .... The supreme court may in any case .... review the action of the board, and may on its own motion, and without the certification of any record, inquire into the merits of the case and take any action agreeable to its judgment.....”

Art. 1, sec. 18 of the constitution reads as follows:

“Courts of justice shall be open to every person, and a speedy remedy afforded for every injury of person, property or character, and right and justice shall be administered without sale, denial, delay, or prejudice.”

Petitioner insists that under the statutes involved herein a hearing before an impartial body is not provided for, and for that reason the statutes are in contravention of the foregoing constitutional provision and should not be upheld. Under the provisions of the acts here involved, the committee appointed to investigate can merely report its findings to the board, whereupon a trial committee may be appointed. Before both committees a full and complete hearing may be had, said committees acting in capacities similar to referees, reporting their findings and conclusions to the board, before which latter body a full and complete review is provided for, with a right of review of its findings, conclusions and recommendations in the supreme court, where a still further hearing is provided for.

In McVicar v. State Board of Law Examiners, 6 Fed. (2d) 33, it was held that a statute which authorized a member of a similar board to prefer charges against an attorney, and then to sit as a member of the board for the consideration of the charges so preferred, was not void. (See, also, Matter of Jones, 159 App. Div. 782, 145 N. Y. Supp. 65.)

The acts are further attacked upon the ground that they are in violation of art. 2, sec. 1 of the constitution, in that said acts delegate to the supreme court and to the board both legislative and judicial powers. No legislative powers are delegated under the acts, and the board ■has no judicial powers. The supreme court has the inherent power to adopt rules and regulations prescribing the fitness and qualifications of persons seeking to practice before the courts of this state, and to ultimately determine whether, under the statutes or rules promulgated by it, persons possess the necessary qualifications, or are persons of good moral character. The supreme court has the additional inherent power to suspend or disbar an attorney for sufficient cause, and jurisdiction so to do does not necessarily depend upon statutory enactments. (6 C. J. 580, 581, sec. 37.)

It is also urged that the original act and amendments thereto violate art. 3, sec. 16, of the constitution in this, that the subject is not embraced in the title of the acts, and that said acts and each of them embrace more than one subject, except chap. 89 of Sess. Laws 1925, p. 124, which chapter has no subject embraced in the title as required by the constitution.

In Jackson v. Gallet, supra, a portion of the original act was held to be unconstitutional for the reason mainly that sees. 9 and 10 of said act purported to appropriate state moneys for the purpose of carrying out the objects of the act, while the title of the act was to the contrary, and from the title the state was to be relieved from the expenditure of state moneys. License fees to be paid under the provisions of the act were payable to the state treasurer, and when received by that officer became state moneys, subject only to appropriation by a valid act of the legislature. It was said in Jackson v. Gallet, supra:

“Legislators reading the title of the act could reach but one conclusion, namely, that the state would be relieved of the cost of holding examinations for admission to the bar, and that the body of the law made provision for such relief, which it did not do. A title which is delusive or false violates the constitution. (Katz v. Herrick, 12 Ida. 1, 86 Pac. 873; Turner v. Coffin, 9 Ida. 338, 74 Pac. 962.) Hence, so far as an appropriation is concerned, since the title does not suggest an appropriation of state moneys but negatives the idea, those portions of the act which attempt to appropriate state moneys must fail.”

Sess. Laws 1925, chap. 90, p. 128, amends and corrects the original act in this respect and therefore overcomes the objections made thereto.

Petitioner also takes exception to chap. 89, Sess. Laws 1925, p. 124, which is amendatory of the original act, upon the ground that said act violates art. 3, see. 16 of the constitution in that no subject is embraced within the title as required by the constitution. The title of the latter act recites that it is an act amending secs. 2, 3, 4, 7, 12, 16 and 17 of the original act, and by reference to the title of the original act the subjects embraced in that act and in the amendatory act are fully set out. No useful purpose could be served by repeating in the amendatory title the subjects set out in the title of the original act. It was held in Turner v. Coffin, 9 Ida. 338, 74 Pac. 962:

“ .... The courts must give a liberal construction to the language used by the legislature in framing the title to any given act which they may pass. ’ ’

The object of the title is to give a general statement of the subject matter, and the title of an amendatory act is sufficient if in such title attention is called to the original act the title of which fully embraces the subject matter of the act. The purpose of the provision of the constitution above cited is to prevent deception of the members of the legislature and the people. No deception could have been practiced upon either the members of the legislature or the people by omitting to repeat in the title of chap. 89, supra, the subject matter of that part of the original act amended.

It is also urged that the acts involved violate the provisions of art. 5, sec. 2, of the constitution, in that they create a court other than those provided for in said article and section. From what has been said heretofore, no other conclusion can be reached than that this contention is without merit. The same may be said as to the point sought to be made that the “said chapters of law violate sec. 13, art. 5 of the constitution of Idaho in that said law provides a method of procedure in the supreme court and deprives the supreme court of its jurisdiction and powers.”

It is further contended that the acts are void in that private funds are appropriated for private use. License moneys are the only moneys that are exacted or, paid to carry out the purposes of the acts. These moneys are paid into the state treasury, and when paid are no longer private funds, but become public funds subject to appropriation in the usual way. The payment of these funds is under the jurisdiction and control of the state board of examiners and the state auditor, and they are disbursed as other public moneys. We have examined chap. 90, Sess. Laws 1925, p. 128, amendatory and corrective of chap. 211, Sess. Laws 1923, the original act, and we are of the opinion that both the title and the act are sufficient to constitute a legal appropriation of the moneys coming into the hands of the state treasurer for disbursement, as other public moneys. These funds are neither collected by the board nor disbursed except as provided by law, and in no essential are they different from other public moneys.

The trial committee found that Edwards was not guilty either of conspiracy or of divulging the secrets of his client. Inasmuch as that committee had the witnesses before it and observed their demeanor, we are disposed to adopt its findings in this regard. As to its finding that Edwards had written letters calculated to bring the courts and judges thereof into disrepute, it must be noted that there had been no formal charge of these particular acts. Trial can be had only on charges contained in the information or rule. (6 C. J. 605; In re Baum, 32 Ida. 676, 186 Pac. 927.)

Attention has been called to the rule announced in In re Tipton, 4 Ida. 513, 42 Pac. 504, that where a crime indictable under statute is charged against an attorney of this court, in disbarment proceedings, the court will not proceed therein until proceedings have been taken in the district court, or until sufficient time has elapsed to afford the proper authorities opportunity to prosecute the accused in that court. This decision was based on early California cases cited in the opinion, and the rule has been departed from by the California courts ever since Ex parte Tyler, 107 Cal. 78, 40 Pac. 33. See for a review of the authorities intervening, In re Danford, 157 Cal. 425, 108 Pac. 322. The rule now followed by California and the great majority of the states is to the effect that where the offense charged consists of a violation of professional duty the court will entertain disbarment proceedings independent of any prosecution or conviction. We are constrained to hold in line with these decisions.

The right to practice law is not a property right (Cohen v. Wright, 22 Cal. 293), but is a privilege or franchise (6 C. J. 569, and cases cited.) As was said in Ex parte Garland, 4 Wall. (U. S.) 378, 18 L. ed. 366:

(April 28, 1928.)

“They (attorneys) hold their office during good behavior, and can only be deprived of it for misconduct ascertained and declared by the judgment of the court after opportunity to be heard has been afforded. Their admission or their exclusion is not the exercise of a mere ministerial power. It is the exercise of judicial power.”

The letters written by Edwards are of such a character that further action should be taken by the board with reference thereto, but this court will take no action until a formal charge has been preferred and the defendant given an opportunity to answer.

The proceeding must be dismissed, with directions to the board to take further action with respect to the letters.

Wm. E. Lee, C. J'., and Givens and T. Bailey Lee, JJ., concur.