Button v. Day

• Citation: 132 S.E.2d 292,204 Va. 547
• Decision Date: 11 September 1963
• Docket Number: No. 5550,5550
• Court: Supreme Court of Virginia
• Parties: ROBERT Y. BUTTON, ATTORNEY GENERAL OF VIRGINIA v. SIDNEY C. DAY, JR., COMPTROLLER OF VIRGINIA. Record

Page 292

132 S.E.2d 292

204 Va. 547

ROBERT Y. BUTTON, ATTORNEY GENERAL OF VIRGINIA v. SIDNEY C. DAY, JR., COMPTROLLER OF VIRGINIA.

Record No. 5550.

Supreme Court of Appeals of Virginia

September 11, 1963.

James H. Simmonds, Special Assistant (Robert Y. Button, Attorney General; Kenneth C. Patty, Assistant Attorney General, on brief), for the petitioner.

Edward L. Breeden, Jr. (Robert R. MacMillan; James H. Flippen, Jr.; Breeden, Howard & MacMillen, on brief), for the respondent.

John C. Parker (John S. Battle; John C. Parker; Samuel H. Williams, on brief), intervenors for the Virginia State Bar.

J. Sloan Kuykendall (Hannibal N. Joyce; Curry Carter; John B. Boatwright, Sr.; Paul M. Shuford; John Alexander; Wayt B. Timberlake, Jr.; George E. Haw, Sr.; J. Sloan Kuykendall, on brief), intervenors as members of the Virginia State Bar.

JUDGE: BUCHANAN

BUCHANAN, J., delivered the opinion of the court.

The Attorney General filed in this court, under § 8-714 of the Code, his petition for a writ of mandamus to require the Comptroller to issue warrants on the State Treasurer for the payment of amounts authorized by the proper official of the Virginia State Bar, pursuant to the Rules for Integration of the Virginia State Bar. The Comptroller had notified the Attorney General by letter that he entertained doubt as to the authority of the Bar to engage in certain activities and hence would decline to issue warrants for payments therefor until there was a final adjudication on the subject by this Court.

The respondent Comptroller, by counsel appointed by this court to represent him, filed his answer and there were presented by these pleadings for adjudication the principal questions whether the State Bar was authorized (1) to participate in a program of continuing legal education; (2) to publish the Virginia Bar News; and (3) to employ counsel and prosecute suits to enjoin the unauthorized practice of law. Other questions to be dealt with proceed from these three issues.

The evidence consisted of written documents received in evidence in accordance with the stipulation of the petitioner and the respondent by their counsel. Briefs were filed by the petitioner and by the respondent and also by intervenors on the side of the petitioner and intervenors on the side of the respondent.

By an Act approved April 1, 1938, Acts 1938, ch. 410, p. 771, the General Assembly enacted a statute known as the State Bar Act (now, as amended, Code, 1958 Repl. Vol., §§ 54-48 through 54-52.1). It provided that the Supreme Court of Appeals of Virginia may, from time to time, 'prescribe, adopt, promulgate and amend rules and regulations' with respect to the matters set out therein. It is copied in full in the margin. ¹

By an Act approved March 28, 1940 (Acts 1940, ch. 314, p. 508, Code, 1958 Repl. Vol., § 54-52), the General Assembly amended and re-enacted the 1938 Act to add thereto Section 3, as follows:

'Section 3. There is hereby established as a special fund in the State treasury a fund to be known as the State Bar Fund. All fees collected from the members of the Virginia State Bar as provided in section one of this act shall be paid into the State treasury immediately upon collection and credited to the State Bar Fund. All moneys so paid into the said fund are hereby appropriated to the Virginia State Bar for the purpose of administering the provisions of this act. All disbursements from the said fund shall be made by the State Treasurer upon warrants of the Comptroller issued upon vouchers signed by such officer or officers of the Virginia State Bar as may be authorized, by or in accordance with rules and regulations prescribed, adopted and promulgated by the Supreme Court of Appeals of Virginia, so to do.'

No other change was made in the 1938 Act except some rearrangement of paragraphs. ²

Following the passage of the 1938 Act this court, at its April 1938 session, appointed a Committee on the Integration of the Virginia Bar, composed of Justices Browning Gregory and Hudgins, which reported to the court the result of its work on September 8, 1938. The report stated that in view of the vital interest of all practitioners in the subject, the active assistance of lawyers from all over the State was sought in preparation of the rules and regulations by which the profession would be governed; that consequently it was arranged that the members of the Bar of each of the thirty-four judicial circuits should elect one member to represent them in drafting such rules and regulations. To these were added by the court's committee with approval of the court six members of the Bar from the State at large, making a total of forty, who met, organized and appointed committees to study various phases of the subject.

Thereafter the committee of forty met and adopted a complete draft of the proposed rules and regulations which, reported the court's committee, were the result of the conclusions of forty outstanding lawyers representing every section of the State, many of whom had been studying the integration of the Bar for a number of years. The court's committee recommended the adoption of the report 'with a few changes listed on the following pages,' which will be referred to below.

The report of the court's committee, with the report of the committee of forty lawyers attached, was received and filed September 8, 1938, and an order was entered on that date directing that the said reports be released for publication in the newspapers and that 2500 copies thereof be printed for distribution; and leave was granted to any person interested to file written objections to or criticisms of said reports. Later, by order of October 21, 1938, said rules and regulations for integration of the Virginia State Bar were adopted, prescribed and promulgated, and 2500 copies were ordered printed for distribution. They were printed also in 171 Va. beginning at page xvii, and amendments thereof in subsequent volumes. The amendments are not material to the present controversy.

The Rules for Integration of the Virginia State Bar so adopted and promulgated are divided into four sections. Section I defines the practice of law; Section II contains the Canons of Professional Ethics; Section III the Canons of Judicial Ethics, and Section IV provides for the organization and government of the Bar. We are concerned now only with certain provisions of Section IV.

Section IV, after erecting the structure of the Bar, provides in Rule 5 that the powers of the Virginia State Bar shall be exercised by a Council composed of forty members, to be elected and appointed, and to meet in the manner prescribed. Rule 9 provides that the Council 'shall have general charge of the administration of the affairs of the Virginia State Bar, and shall have the power' to do the things set out in paragraphs (a) through (k). These include in (f) the power to employ such assistants as it deems necessary and to fix their duties and compensation and the compensation of the Secretary-Treasurer; and (g) to make allocations of funds within the amounts available; and in (k) the following:

'The Council may, at its discretion or upon a written request of the majority of the members of the Virginia State Bar or pursuant to a resolution duly adopted at a regular or called meeting, exercise the necessary powers:

'To cultivate and advance the science of jurisprudence;

'To promote reform in the law and in judicial procedure;

'To facilitate the administration of justice;

'To uphold and elevate the standards of honor, of integrity and of courtesy in the legal profession;

'To encourage higher and better education for membership in the profession;

'To promote a spirit of cordiality and brotherhood among the members of the Virginia State Bar; and 'To perform all duties imposed by law.'

This Rule 9(k) was recommended to the court by its committee to be added to the report of the committee of forty and was adopted and promulgated by the court as part of the Rules. It is the focus of the present controversy.

The respondent contends, first, that this court intended the Rules for the Integration of the State Bar to be based solely on the State Bar Act, as evidenced by the fact that the court did not act until after the 1938 Act of the General Assembly was passed, and that the Rules follow the sequence of the items covered by the Act. On the other hand, the petitioner argues that this court did not intend the Rules to be based solely on the Bar Act, but had the inherent power to integrate the Bar without regard to any limitations or restrictions in the Act.

The best evidence of what the court intended is what the court did. Death has now sealed the lips of the three members of the court who served so faithfully as its committee. But one of them, Justice Hudgins, later Chief Justice, and probably the leading spirit in the undertaking, afterwards wrote in the case of Commonwealth v. Jones & Robins, Inc., 186 Va. 30, 36, 41 S.E.2d 720, 724:

'The Supreme Court of Appeals of Virginia, pursuant to its inherent power and chapter 410 of the Acts of 1938 (Acts 1938, p. 771), adopted rules and regulations, defining the practice of law and prescribing a code of ethics governing professional conduct of attorneys, a code of judicial ethics and other measures, by which the Bar of this State became integrated.'

Before that, in Norfolk & Portsmouth Bar Ass'n v. Drewry, 161 Va. 833, 836, 172 S.E. 282, 283, this court said that attorneys at law were court officers and may be disciplined. 'This is an inherent power. * * * This power, since the judiciary is an independent branch of government, is not controlled by statute.'

Again, in Richmond Ass'n of Credit Men, Inc. v. Bar Ass'n, 167 Va. 327, 335, 189 S.E. 153, 157, it was said that 'the courts have the inherent power, apart from statute, to inquire into the conduct of any person -- whether an individual, a lay agency, or a corporation -- to determine whether he...