Baker v. Varser

• Decision Date: 19 May 1954
• Docket Number: No. 459,459
• Citation: 240 N.C. 260,82 S.E.2d 90
• Parties: BAKER, v. VARSER et al.
• Court: North Carolina Supreme Court

Page 90

82 S.E.2d 90

240 N.C. 260

BAKER, v. VARSER et al.

No. 459

Supreme Court of North Carolina.

May 19, 1954

R. P. Upchurch, Raleigh, for plaintiff, appellant.

Bennett H. Perry, Henderson, for defendants, appellees.

PARKER, Justice.

This case was predicated, and tried in the former appeal on the theory that the plaintiff had shown by evidence compliance with Rule 5 of the Rules Governing Admission to Practise of Law in North Carolina. These rules are printed in 208 N.C. 857 et seq.; in 221 N.C. 608 et seq.; and in G.S.N.C. Vol. 4, p. 65 et seq. In his brief of 39 pages in the former appeal, he did not question the constitutionality of the statute giving authority to the defendant Board of Law Examiners to make Rule 5.

We held in our former opinion that there was in effect at that time no provision for an appeal from the Board of Law Examiners, and therefore under G.S. § 1-269 authorized a writ of certiorari 'to the end that the record of pertinent proceeding in respect to question of rule applied in determining residence of plaintiff within the State in connection with his application for bar examination, may be judicially reviewed.' [ 239 N.C. 180, 79 S.E.2d 764.] It clearly appears by the language of our former opinion, which we here emphasize, that the matter was to be heard in the Superior Court solely upon the Record, and the hearing should be limited to the question of residence of plaintiff within the State in connection with his application to take the examination. Therefore, many interesting questions discussed in plaintiff's brief are not relevant--e. g. his exceptions to the refusal of the trial judge to permit him to introduce in evidence his oral examination of Edward L. Cannon, Secretary of the Board of Law Examiners of the State, before Judge Fountain.

For the first time on this appeal the plaintiff seeks to raise the constitutionality of that part of Ch. 210, Public Laws of North Carolina 1933 (now codified as G.S. N.C. § 84-15 et seq.), by virtue of which Rule 5 was adopted and approved, on the ground that the General Assembly was without power to delegate its law making power. The plaintiff contends that Rule 5 is void, which leaves C.S. § 196 in force, and that under that section the sole requirement as to residence of an applicant to take an examination to practise law in this jurisdiction is that the 'applicant must be a bona fide resident of North Carolina'.

C.S. § 196 has been deleted from G.S.N.C. 1943--see G.S.N.C. 1943, Vol. 4, p. 130, where it is said C.S. §§ 194-196 superseded by G.S.N.C. § 84-24. C.S. § 196 not being contained in General Statutes of North Carolina 1943 was thereby repealed by virtue of G.S.N.C. § 164-2; it not coming within the exceptions and limitations set forth thereafter in Ch. 164, G.S.N.C. See Kirby v. Stokes County Board of Education, 230 N.C. 619, 55 S.E.2d 322.

An appeal ex necessitate follows the theory of the trial. In re Parker, 209 N.C. 693, 184 S.E. 532; Sawyer v. Staples, 224 N.C. 298, 29 S.E.2d 892; Lyda v. Marion, 239 N.C. 265, 79 S.E.2d 726. As the plaintiff did not raise the question of constitutionality of that part of Ch. 210, Public Laws 1933, giving the defendant Board of Law Examiners authority to make Rule 5, it may not be raised for the first time in this Court on the second appeal. Bank of Wadesboro v. Caudle, 239 N.C. 270, 79 S.E.2d 723; Phillips v. Shaw, 238 N.C. 518, 78 S.E.2d 314; Wachovia Bank & Trust Co. v. Waddell, 237 N.C. 342, 75 S.E.2d 151; State v. Lueders, 214 N.C. 558, 200 S.E. 22; 11 Am.Jur., Constitutional Law, Sec. 93.

A person does not have a natural or constitutional right to practise law; it is a privilege or franchise to be earned by hard study and compliance with the qualifications for admission to practise law prescribed by law. Seawell v. Carolina Motor Club, 209 N.C. 624, 184 S.E. 540; 7 C.J.S., Attorney and Client, § 4(b). By virtue of its police power a state is authorized to establish qualifications for admission to practise law in its jurisdiction. In re Applicants for License, 143 N.C. 1, 55 S.E. 635, 10 L.R.A.,N.S., 288. An attorney at law is a sworn officer of the court with an obligation to the public, as well as his clients, for the office of attorney at law is indispensable to the administration of justice. In re Dillingham, 188 N.C. 162, 124 S.E. 130; 7 C.J.S., Attorney and Client, § 4(a). The purpose of the statute creating the North Carolina State Bar was to enable the bar to render more effective service in improving the administration of justice, particularly in dealing with the problem of admission to the bar, and of discipling and disbarring attorneys at law.

The pertinent part of Rule 5 is as follows: 'Citizenship, Character, Age, Residence.--Each applicant at the time of filing his application, must be a citizen of the United States, a person of good moral character, and must have been, for the twelve months next preceding the filing of his application, a citizen and resident of North Carolina * * *.'

Whether the term 'resident' as used in Rule 5 means that 'residence' is synonymous with 'domicile' depends on the purpose of Rule Five, the nature of the subject matter, as well as the context in which the term is used. 28 C.J.S., Domicile § 2(b); 17 Am.Jur., Domicil, Sec. 9.

The North Carolina Constitution provides in art. VI, Sec, 2, as a prerequisite to the right to vote that an elector 'shall reside in the State of North Carolina for one year and in the precinct, ward or other election district in which he offers to vote four months next preceding the election'. This Court has held 'without variation that residence within the purview of this constitutional provision is synonymous with domicile, denoting a permanent dwelling place, to which the party, when absent, intends to return.' Owens v. Chaplin, 228 N.C. 705, 47 S.E.2d 12, 15 (where the authorities are cited). In Roberts v. Cannon, 20 N.C. 398, Gaston, J., speaking for the Court said: '* * * by a residence in the county the Constitution intends a domicil in that county.'

Hannon v. Grizzard, 89 N.C. 115, was a quo warranto proceeding. At a regular election held in November 1882 in and for Halifax County, the relator was chosen by a majority of the votes cast to the office of register of deeds, and it was so declared by the county canvassers. The board of county commissioners refused to permit him to qualify upon the ground of his want of qualification required by the Constitution in that he had not 'resided in the State twelve months next preceding the election, and ninety days in the county.' The relator was in the service of the federal government at Washington, D. C., as watchman under the Treasury Department, but continued to pay poll tax and vote in Halifax County, and spent a part of each year at his home in Halifax. This Court held that his constitutional residence remained unchanged in Halifax.

Winborne, J., speaking for the Court in In re Hall's Guardianship, 235 N.C. 697, 71 S.E.2d 140, 145, 32 A.L.R.2d 856 said: '* * * as a general rule, a student, although an adult, does not acquire a legal domicile at an educational institution where he resides with the ultimate intention of returning to his original home. 28 C.J.S., Domicile § 12(g) 3, p. 28.' But an adult student, independent of parental control and support, may acquire a domicile at the place where a university or college is situated, if he regards the place as his home, or intends to stay there indefinitely, without any intention of resuming his former home. Berry v. Wilcox, 44 Neb. 82, 62 N.W. 249, 48 Am.St.Rep. 706; 28 C.J.S., Domicile, § 12, p. 29; 17 Am.Jur., Domicil, Sec. 74.

'The rule is settled that a student who goes to a college town with the intention of remaining there simply as a student, and only until his education is completed, and who does not change his intention does not acquire a domicil there.' 17 Am.Jur., Domicil, Sec. 74. See also Annotation 37 A.L.R. 138.

If we should hold that the term 'resident' as used in Rule 5, means that a person is a resident of the place where he has his actual place of abode, it would mean that a young man born, raised and domiciled in North Carolina, who went to Charlottesville, Virginia, with the intention of remaining there as a student in the Law School of the University of Virginia, and only until his education was completed, and who does not change his intention, upon his graduation in June could not take the examination to practise law in North Carolina the following August. Such a narrow construction is not consistent with the purpose of Rule 5. In our opinion, the term 'resident' as used in Rule 5 means that 'residence' is synonymous with 'domicile.'

One may be a resident of one state, although having a domicile in another. Wheeler v. Cobb, 75 N.C. 21; Sheffield v. Walker, 231 N.C. 556, 58 S.E.2d 356; Penfield v. Chesapeake, O. & S. W. R. Co., 134 U.S. 351, 10 S.Ct. 566, 33 L.Ed. 940; 17 Am.Jur., Domicil, p. 594.

The burden of showing that he had the qualifications to comply with the requirements of Rule 5 rests upon the plaintiff. In re Farmer (Applicants for Licenses) 191 N.C. 235, 131 S.E. 661; Spears v. State Bar, 211 Cal. 183, 294 P. 697, 72 A.L.R. 923 and Annotation; Rosencranz v. Tidrington, 193 Ind. 472, 141 N.E. 58, 28 A.L.R. 1136 and Annotation; 7 C.J.S., Attorney and Client, § 11, p. 717.

If the proof offered by the plaintiff failed to satisfy the defendant Board of Law Examiners that he had the qualifications required by Rule 5, it was their duty to deny his application to take the examination in August 1953. Spears v. State Bar, supra.

In our opinion, there is sufficient competent evidence to support the detailed findings of fact made by the defendant Board of Law Examiners that the plaintiff has not been for the twelve months next preceding the filing of his application a citizen and resident of North Carolina, as required by Rule 5. Although one member of the...