Barger v. Brock

Decision Date30 March 1976
Citation535 S.W.2d 337
PartiesAl S. BARGER et al. v. Ray L. BROCK, Jr., et al. 535 S.W.2d 337
CourtTennessee Supreme Court

This action involves the right or power of the Chancery Court to declare a Rule of the Supreme Court to be violative of the Constitution of Tennessee and enjoin its enforcement.

The plaintiffs, Al S. Barger, Leon W. Davis, Jr., U. L. McDonald, Joe M. Parker and Richard H. Winningham are practicing attorneys in Chattanooga, Hamilton County, Tennessee and are solicitors and officers of this Court.

The defendants, Ray L. Brock, Jr., Robert E. Cooper, William H. D. Fones, William J. Harbison and Joseph W. Henry, constitute the Supreme Court of Tennessee and are sued in their official capacity as such Court. There is no allegation or suggestion that they, or any of them, have any pecuniary or property interest in the issues here presented. 1

The defendant, R. A. Ashley, is sued in his official capacity as the Attorney General of the State of Tennessee and is made a party 'in case the Court should find it necessary to pass upon the constitutionality of any statute of the State of Tennessee.'


Inter alia, the Complaint filed over the signature of Thomas A. Harris, their solicitor of record, and also a solicitor and officer of this Court, alleges:

At some time unknown to the plaintiffs, and without notice to them, the defendant Justices as the Supreme Court of Tennessee undertook consideration of an original 'petition' presented to said Court Under circumstances not fully known to your plaintiffs, calling for the defendants to impose an annual 'license fee' or Tax upon the plaintiffs and all other attorneys practicing within the State of Tennessee. Your plaintiffs are advised that on December 18, 1975, the defendants adopted a So-called 'Rule of Court' called 'Rule 42,' which in Section 20 thereof purports to levy an annual fee or Tax upon all practicing attorneys in this State. (Emphasis supplied).

It is further alleged with respect to this Court:

(T)heir Ex parte action in purporting to Levy a tax on lawyers is wholly without and beyond their authority and is an Exercise of arbitrary power which is prohibited by our Constitution . . . (Emphasis supplied).

They further allege:

The portions of 'Rule 42' purporting to impose a Tax or 'annual fee' on lawyers are void as an Affront to the Constitution of the State of Tennessee . . . (Emphasis supplied).

It is alleged that only Legislature has the power to tax, citing Article 2, § 28, Article 2, § 2, and Article 6, § 2.

The prayer is (1) 'that so much of Rule 42 as purports to levy a tax or 'annual license fee' on the plaintiffs, or to suspend them from the practice of law, be declared void as contravening the Constitution of this State'; (2) that 'the defendant Justices be enjoined from imposing the tax or license fee' and (3) for such other relief as 'the Constitution of the State and the preservation of liberty may require.' There is no prayer for process.


On 9 May 1974, the Tennessee Bar Association filed a petition in this Court requesting and recommending the adoption of a Rule of Court establishing a comprehensive disciplinary procedure to be funded and maintained by an annual license fee payable by members of the Bar.

On 6 November 1974, thirteen (13) members of the Bar of this Court filed an intervening petition urging that this Court promulgate a Rule organizing, unifying or integrating the State Bar of Tennessee.

By supplemental petition filed 12 December 1974, the Bar Association asserted the inadequacy of the then Rule 42 and urged the Court to replace it with Rules of Disciplinary Enforcement exhibited with the petition.

This Court, being acutely aware of the impact of these recommendations upon the members of the Bar and their direct relationship to the public welfare, and being desirous of giving all concerned a full opportunity to be heard, and being unwilling to proceed on an Ex parte basis and without notice, entered an order on 22 November 1974, granting leave to all interested parties to file Amicus curiae briefs and gave notice that oral argument would be heard upon the issues thus presented. Pursuant to this solicitation, numerous briefs, affidavits and letters in support of or opposition to these proposals were filed.

We digress at this juncture to address the matter of whether the profession had notice of these proceedings. First, it should be pointed out that at all stages, the news media, be editorial comment and by news stories, gave these matters massive publicity.

The voluntary Tennessee Bar Association 2 kept its membership fully informed through its most excellent publications.

The December 1974 issue of the Tennessee Lawyer (Vol. 23, No. 4) devoted the entire front page to a story headlined INTERVENING PETITION TO UNIFY T.B.A. FILED BY GROUP OF LAWYERS. The ensuing story pointed out that this petition was filed 'in the pending matter of: In Re: The Petition of the Tennessee Bar Association, Ex Parte.' The concluding paragraph reads as follows:

The Court has granted interested parties leave to file amicus curiae briefs. Those supporting the petitions are to be filed on or before December 27, 1974, those in opposition on or before January 17, 1975. The Court will hear oral arguments on Thursday, January 23, 1975. Proponents will be heard from 9:00 a.m. until noon. Those opposing will be heard from 1:30 p.m. to 4:30 p.m. Lawyers desiring to present oral argument should notify the Clerk of the Court at Nashville. 3

Oral argument was heard on 23 January 1975, and at this time the Court was the beneficiary of numerous presentations and all issues were fully and ably discussed. It is of significance that among those appearing at the Bar of this Court was the then President of the Chattanooga Bar Association. It is of further significance that the Chattanooga Bar Association filed an intervening petition.

Again realizing that these were issues of overriding professional and public concern, the Court 4 conducted numerous conferences and proceeded with deliberation in its consideration of these vital matters. Finally, after all concerned had been afforded full opportunity to be heard in person, by petition, letter, affidavit and brief, the Court on 18 December 1975, three hundred and twenty-nine (329) days after argument, released its opinion, which Inter alia announced the adoption of Rule 42, relating to Disciplinary Enforcement. See In Re: Petition of Tennessee Bar Association, etc., 532 S.W.2d 224 (Tenn.1975).

The basic legal issue presented to the Court was its right, power and authority to unify the Bar and/or adopt a disciplinary rule. The Court's ruling was clear:

We respectfully overrule all issues raised in this proceeding questioning the authority of the Court to unify the bar of this state or to require annual registration and license fees as a condition to the continued practice of law.

The holding in this case, is the established law of Tennessee and is binding upon all the courts of the state.


Tennessee's judicial structure is established by our constitution and statutes on a three-tiered basis. In ascending order of power and authority they are: (1) Nisi prius or trial courts (circuit and chancery); (2) intermediate appellate courts (Court of Appeals and Court of Criminal Appeals) and (3) a Supreme Court.

The Constitution of Tennessee obviously contemplates the supremacy of the Supreme Court.

The judicial power of this State shall be vested in one Supreme Court and in such Circuit, Chancery and other inferior Courts as the Legislature shall from time to time, ordain and establish; . . . (Art. 6, Sec. 1).

Thus the Supreme Court is a direct creature of the Constitution and constitutes the supreme judicial tribunal of the state and is a court of last resort. All other courts are constitutionally inferior tribunals subject to the actions of the Supreme Court. Its adjudications are final and conclusive upon all questions determined by it, subject only to review, in appropriate cases by the Supreme Court of the United States. Railroad v. Bryne, 119 Tenn. 278, 104 S.W. 460 (1907).

Chancellor Gibson lists the Great Duties of the Supreme Court. See § 1376, Gibson's Suits in Chancery, Fifth Edition (1956). One of these 'great duties', to the extent here applicable, is:

To keep . . . the courts . . . within their constitutional and lawful jurisdiction.

In the ensuing section he discusses the objects of the people in ordering and establishing the Supreme Court. He suggests that the first object was:

(T)o have a tribunal to supervise all the other Courts of the State; to keep them within the limits of the law and the Constitution . . .

Then by footnote 17 to the same section he lists the considerations prompting the Court. Among these:

To so rule that all inferior courts will be kept within the orbits of their respective jurisdictions.

Judge Abraham Caruthers, in History of a Lawsuit, Sec. 20 (Eighth Edition 1963) expresses it thusly:

The power to enforce its judgments includes the power to protect them from interference, and the Court may use any process to secure that protection and enforcement; The court is supreme in fact as well as in name. (Emphasis supplied).

It is a controlling principle that inferior courts must abide the orders, decrees and precedents of higher courts. The slightest deviation from this rigid rule would disrupt and destroy the sanctity of the judicial process. There would be no finality or stability in the law and the court system would be chaotic in its operation and unstable and inconsistent in its decisions. Personal and property rights would be insecure and litigation would know no end.

Fortunately our courts recognize and apply the rule that lower courts are bound by the decisions of higher courts. As held in Bloodworth v. Stuart, 221 Tenn. 567, 428 S.W.2d 786 (1968) 'the Court of Appeals has no authority to overrule or modify Supreme...

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