In re Integration of Bar

Citation11 N.W.2d 604,244 Wis. 8
PartiesINTEGRATION OF BAR CASE.
Decision Date09 November 1943
CourtUnited States State Supreme Court of Wisconsin

OPINION TEXT STARTS HERE

FOWLER, J., dissenting.

This is an original proceeding in this court instituted by order of the court for the reasons stated in Goodland v. Zimmerman, 1943, 243 Wis. 459, at page 472, 10 N.W.2d 180. The order is as follows:

“The appeal in the case of Goodland v. Zimmerman having been heard, the issues determined and judgment entered, and the original record remitted to the circuit court, this Court having retained a certified copy thereof-

“It Is Now Here Ordered: That said certified copy shall constitute the basis of a proceeding in the nature of an original action for the purpose of enabling the court to determine the validity of ch. 315 of the Laws of 1943.

“At the request of the Court, Daniel H. Grady, Esq., and Messrs. Holmes and Shuttleworth have consented to continue as counsel in support of the contention that the act is invalid; for convenience those supporting that view will be referred to as the petitioners. The Attorney General, upon request of the Court, has consented to continue to support the contention that the act is valid and for convenience will be referred to as respondent.

“The matter will be set down for argument at 1:30 P.M. on the 13th day of September, 1943, in the Supreme Court Room. Petitioners will serve their briefs on opposite counsel on or before the 31st day of July, 1943. Counsel for respondent will serve and file their briefs on opposite counsel on or before the 28th day of August, 1943.

“The Court will receive briefs amicus curiae from all persons who are interested in this proceeding. Those filing briefs amici curiae in support of petitioners' contention shall serve and file their briefs on counsel on each side on or before July 31, 1943. Those who support respondent's contention will serve and file their briefs on counsel on each side on or before August 28, 1943.

“All briefs to be printed, served and filed in accordance with the rules of the Court.

Petitioners will be heard first on oral argument. The respondents will answer. Each side will be allowed two hours in which to present their side of the case.

“In order to promote a helpful presentation of the questions hereinafter to be determined in respect of the validity of ch. 315 of the Laws of 1943, the following order of treatment is requested in briefs submitted to the Court. In presenting this order of treatment we do not claim to have exhausted the questions that might reasonably be raised or to foreclose further questions. It is desirable, however, that these questions be put into what appears to the briefer the proper relation to the suggested outline.

“A. Was Chapter 315 validly enacted?

“1. Is a Court bound by the legislative declaration that Bill 56, S., was concurred in, notwithstanding objections of the Acting Governor, or may it go to the journals?

“2. May a Court go back of the journals of the senate and assembly in an effort to discover whether the law was validly enacted?

“3. If it may not, then should members of the assembly shown by the journal of that house not to have been counted because they were paired have been counted as present?

“4. If the court may go behind the journals, then,

(a) Is a member of the assembly who is on the floor of the assembly but does not vote, present within the meaning of that term as used in Article V, section 10 of the Constitution?

(b) If the journal does not show whether one or both of the members paired were absent with leave as required by rule 83 of the assembly rules should evidence be taken to ascertain whether in the case of any pair both members so paired were absent without leave, or were at the time of the taking of the vote by which the bill was concurred in on the floor of the assembly?

“5. In a matter in which concurrence of the members of the house of the Legislature by a 2/3 vote is required by the Constitution, may the Legislature adopt or apply a rule relating to pairs which results in the pairing of a single member against a single member or must the pairs be in the ratio of 2 to 1?

“B. Would chapter 315, assuming that it was validly enacted, if put into operation be invalid?

“1. As unconstitutionally delegating legislative power to the Supreme Court?

“2. Does the act invalidly impose burdens upon members of the bar with respect to their occupation?

“3. Is the act invalid on any other grounds?

“Dated June 17, 1943.”

Briefs were filed by attorneys for the petitioners as well as by attorneys for the respondent. In addition thereto, briefs amici curiae were filed by members of the Bar both in favor of and against the validity of ch. 315 of the Laws of 1943. The matter was set down for argument on September 13, 1943, at 1:30 P.M. For cause the hearing was adjourned to Saturday, September 18, at 9 A.M., at which time the case was argued orally by Daniel H. Grady, Esq., for the petitioners, James Ward Rector, Esq., Deputy Attorney General, and Edmund B. Shea, Esq., for the respondents. Mention should be made of a brief filed by William H. Spohn, Esq., of the Madison Bar, which presents a new aspect of the matter, which will be later referred to.

Holmes & Shuttleworth, of Madison, and Daniel H. Grady, of Portage, for plaintiff.

John E. Martin, Atty. Gen., James Ward Rector, Asst. Atty. Gen., and Peter Paul Woboril, of Madison, and Edmund B. Shea, of Milwaukee, for respondent.

ROSENBERRY, Chief Justice.

History.

In view of the nature of the subject matter dealt with and its importance to the people of the State of Wisconsin as well as to the members of the Bar of this state, it seems appropriate to begin the discussion with a short outline of the steps that have been taken in this and other jurisdictions relating to the integration of the bar.

For more than twenty years in one form or another the matter has been before the Wisconsin State Bar Association and so far as the record discloses it has met with the approval of the Association. By 1935, consideration of the matter had reached such a stage that it seemed appropriate to present it to the Legislature. A bill was introduced into the Senate known as Bill No. 119, S. By the terms of that bill the Bar was to be completely integrated by act of the Legislature itself. The bill passed both Houses but was vetoed by the Governor. A similar bill introduced into the Assembly was indefinitely postponed. In 1937, two bills were introduced into the Senate, one of which was withdrawn. A companion bill, No. 424, A., was introduced into the assembly, was ordered engrossed and read a third time but no further action was taken due to the sine die adjournment of the Legislature. In 1939, Bill No. 462, A., was introduced into the Assembly and passed but was nonconcurred in by the Senate. Bills were introduced into the Senate and Assembly in 1941,-Bill 153, A., was passed by the Assembly and considered by the Senate but final action was not taken because of the sine die adjournment of the Legislature.

The bills introduced in 1937, '39, '41 and '43 while not identical, were substantially the same. Each created an association to be known as the State Bar of Wisconsin and conferred upon the Supreme Court power to provide by order for the organization of the association.

Since discussion of the matter was begun in Wisconsin, the matter of integration has been considered in other states. The Bar has been integrated in twenty-one states.1

Integration was accomplished by three different methods: (1st) By the enactment of detailed statutes; (2d) By the enactment of a short statute conferring authority upon the highest court of the state to integrate the Bar; and (3d) By rule of court without statutory authority in the exercise of its inherent power.

With a single exception no state which has integrated the Bar either by act of the Legislature or order of the court, has returned to the former practice. In 1929, the Legislature of Oklahoma passed what was known as the State Bar Act. This act in effect unified or integrated the Bar of that state. It was repealed by the Legislature of 1939, 5 O.S.1941 § 12 et seq. whereupon the supreme court in the exercise of its inherent power upon the petitions of the Board of Governors of the State Bar and various bar associations within the state entered an order October 10, 1939, providing for the organization of the Oklahoma Bar Association. That order has ever since remained in force. In re Integration of State Bar of Oklahoma, 1939, 185 Okl. 505, 95 P.2d 113.

Enough has been said to indicate that the matter of bar integration is not a sporadic or evanescent movement. The movement was called into being to meet situations in the various jurisdictions which could not be dealt with efficiently under presently existing laws. Scattered as the states are from the Atlantic to the Pacific and from Canada to the Gulf of Mexico, the extent of the movement is strong evidence of the fact that there is a general widespread recognition of the fact that the conduct of the Bar is a matter of general public interest and concern. We shall postpone to a later time a discussion of the merits and demerits of bar integration.

Was Ch. 315 of the Laws of 1943 validly enacted?

It is the contention of the petitioners that ch. 315, which was Bill No. 56, S., was not validly enacted because it was not concurred in in the Assembly by a two-thirds vote of all those present. Bill No. 56, S., originated in the Senate where it was duly and regularly passed, messaged to the Assembly, which concurred therein, was duly authenticated and sent to the Governor who vetoed it and returned it to the Senate with his reasons therefor. When it reached the Senate it was passed over the Governor's veto and no question is raised in regard to that.

On Wednesday, May 5, 1943, at 9 o'clock A.M., the Assembly met. The roll was called,-89 members were present, 11 absent. Thereafter Assemblymen Graf and Vogel asked to be recorded...

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