In re Integration of Neb. State Bar Ass'n

• Decision Date: 20 September 1937
• Docket Number: 30179.
• Citation: 275 N.W. 265,133 Neb. 283
• Parties: IN RE INTEGRATION OF NEBRASKA STATE BAR ASS'N.
• Court: Nebraska Supreme Court

275 N.W. 265

133 Neb. 283

IN RE INTEGRATION OF NEBRASKA STATE BAR ASS'N.

No. 30179.

Supreme Court of Nebraska.

September 20, 1937

Syllabus by the Court.

1. The Constitution of this state does not, by express grant, vest the power to define and regulate the practice of law in any of the three departments of government.

2. In the absence of an express grant of this power to any one of the three departments, it must, when the occasion demands, be exercised by the department to which it naturally belongs.

3. The term " inherent power of the judiciary" means that power which is essential to the existence, dignity and functions of the court from the very fact that it is a court.

4. The supreme court of this state has the inherent power to regulate the conduct and qualifications of attorneys as officers of the court.

5. The proper administration of justice is the main business of a court, and whatever obstructs or embarrasses its chief function must naturally be under its control.

6. The practice of law is so intimately connected and bound up with the exercise of judicial power in the administration of justice that the right to define and regulate its practice naturally and logically belongs to the judicial department of our state government.

7. This court, having the inherent power to define and regulate the practice of law, has authority, in the exercise of a sound judicial discretion, to promulgate rules providing for the integration of the bar of the state.

Proceeding in the matter of the Integration of the Nebraska State Bar Association. On petition of David A. Fitch and others praying that the Nebraska State Bar Association be integrated by rule of the Supreme Court.

Petition granted.

The Nebraska Supreme Court, having inherent power to define and regulate the practice of law, had authority, in exercise of sound judicial discretion, to promulgate rules providing for integration of bar of the state.

Heard before GOSS, C. J., ROSE, EBERLY, DAY, PAINE and CARTER, JJ., and SPEAR, District Judge.

CARTER, Justice.

This matter comes before the court upon the petition of David A Fitch and others praying that the bar of the state of Nebraska be integrated by rule of this court. The petition recites that petitioners are a committee of lawyers of the Nebraska State Bar Association appointed to investigate and report concerning the integration of the bar of the state of Nebraska; that the committee made its report to the Nebraska State Bar Association and that it was duly approved by said association; that the report as approved provided for its submission to all members of the bar of the state and for the taking of a referendum by a secret mail vote thereon; that said report has been submitted and the vote taken with the result that 595 members of the bar voted for bar integration by supreme court rule and 155 against; that petitioners feel that a large majority of the members of the bar of this state, as well as informed public opinion, favor bar integration by supreme court rule as a means of providing better service to the public by the legal profession, of effectively combating the unauthorized practice of law, and of improving the ethical standards of the profession and giving to it the high public esteem that it should enjoy.

The presentation of this petition to this court immediately raises the question of the power of the court to proceed in the manner suggested by the petitioners.

Section 1, art. 2 of the Constitution of Nebraska, provides: " The powers of the government of this state are divided into three distinct departments, the legislative, executive and judicial, and no person or collection of persons being one of these departments, shall exercise any power properly belonging to either of the others except as hereinafter expressly directed or permitted." It is clear that this constitutional provision requires that the three departments of government must be kept separate and that each must operate only within its own sphere .

Section 1, art. 5 of our Constitution, vests the judicial power of the state in this and other courts named therein in the following language: " The judicial power of the state shall be vested in a supreme court, district courts, county courts, justices of the peace, and such other courts inferior to the supreme court as may be created by law; but other courts may be substituted by law for justices of the peace within such districts, and with such additional civil and criminal jurisdiction as may be provided by law."

The Constitution does not, by any express grant, vest the power to define and regulate the practice of law in any of the three departments of government. In the absence of an express grant of this power to any one of the three departments, it must be exercised by the department to which it naturally belongs because " It is a fundamental principle of constitutional law that each department of government, whether federal or state, ‘ has, without any express grant, the inherent right to accomplish all objects naturally within the orbit of that department, not expressly limited by the fact of the existence of a similar power elsewhere or the express limitations in the constitution.' 1 Andrews' American Law (2d Ed.) § 182, p. 221." In Matter of Richards, 333 Mo. 907, 63 S.W.(2d) 672, 675.And, also, in the case of State v. Washburn, 167 Mo. 680, 67 S.W. 592, 594, 90 Am.St.Rep. 430, the Missouri court aptly stated the rule in the following language: " All governmental powers are in their natures either legislative, executive, or judicial. The constitution does not undertake to define what acts fall within the one class or the other, but leaves every act to be classified according to its nature, recognizing that the essentials which distinguish those that belong to one department from those that belong to the two others are discernible to the learned mind. But in that article of the constitution all the powers of the state government are disposed of, and every one who lawfully exercises any state governmental function is able to trace the source of his authority to one of the three departments there named. The power, whatever its character, can be exercised only by or under authority of the separate magistracy to which by the constitution it is assigned."

There being no express grant of power in the Constitution to any of the three departments of government to define and regulate the practice of law, the question is--to what department does that power naturally belong?

In the case of In re Disbarment Proceedings of Newby, 76 Neb. 482, 107 N.W. 850, 852, this court said:

" Attorneys practicing in the district courts of this state are officers of the courts in which they practice. Their position is an honorable one; they are the trusted advisers of the court. There can be no doubt that the court has ample power to protect itself against dishonorable and corrupt practitioners. * * *

Our statute contains no provision for disbarment proceedings. This matter is left to the common-law power and duty of the various courts. It is a principle of general, if not uniform, application that the court which is entrusted with the power and the duty of determining the qualifications for admission to the bar has, by implication, the power and duty also to determine when those qualifications are wanting, and when the privilege of that high calling has been forfeited. This court has the sole power of admission to the bar, and therefore has sole power to annul such admission when sufficient cause appears. Charges of misconduct and deceit in the district court are properly entertained and dealt with in that court. Charges of criminal or immoral conduct calling for disbarment should be addressed to this court." See, also, State ex rel. Sorensen v. Goldman, 127 Neb. 340, 255 N.W. 32.

In State ex rel. Wright v. Barlow, 131 Neb. 294, 268 N.W. 95, we held that this court was vested with exclusive power to determine the qualifications of persons who may be permitted to practice law in this state, was possessed of the exclusive power to disbar licensed attorneys who have been unfaithful to the trust which the court reposed in them, to define the practice of law and to punish by contempt proceedings persons not licensed to practice law for usurping the privilege of acting as attorneys. See, also, Rhode Island Bar Ass'n v. Automobile Service Ass'n, 55 R.I. 122, 179 A. 139, 100 A.L.R. 226; People ex rel. v. People's Stock Yards State Bank, 344 Ill. 462, 176 N.E. 901; Fitchette v. Taylor, 191 Minn. 582, 254 N.W. 910, 94 A.L.R. 356.

In sustaining the Bar Integration Act passed by the legislature of Kentucky, the supreme court of that state said:

" The power to regulate the conduct and qualifications of its officers does not depend upon constitutional or statutory grounds. It is a power which is inherent in this court as a court--appropriate, indeed necessary, to the proper administration of justice. That we have, in deference to the Bar Integration Act (Ky.St. §§ 101-1, 101-2), set up a standing board of commissioners and machinery to conduct and report on investigations concerning the conduct of attorneys does not alter the fact that we are but exerting an inherent power. * * *

" The argument that this is an arbitrary power which the court is arrogating to itself or accepting from the Legislature likewise misconceives the nature of the duty. It has limitations no less real because they are inherent. It is an unpleasant task to sit in judgment upon a brother member of the bar, particularly where, as here, the facts are disputed. It is a grave responsibility, to be assumed only with a determination to uphold the ideals and traditions of an honorable profession and to protect the public

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