Lewkowitz, In re

• Decision Date: 16 January 1950
• Docket Number: No. 5235,5235
• Parties: In re LEWKOWITZ et al.
• Court: Arizona Supreme Court

Page 690

213 P.2d 690

69 Ariz. 347

In re LEWKOWITZ et al.

No. 5235.

Supreme Court of Arizona.

Decided Jan. 16, 1950.

Alfred C. Lockwood, of Phoenix, for State Bar of Arizona.

Fred C. Struckmeyer, of Phoenix, Louis B. Whitney, of Phoenix, for respondent, Herman Lewkowitz.

Mark Wilmer, of Phoenix, for respondent, Raymond R. Wein, Fred A. Ironside, Jr., of Phoenix, of counsel.

PHELPS, Justice.

The questions of law here involved are presented to us in support of motions to vacate, quash and dismiss an order to show cause directed against respondents, issued out of this court in the above entitled cause. In view of the importance of the matter presented we deem it advisable to depart from our usual practice and to record our views in a written decision.

The first claim of respondents is that is so far as the provisions of the State Bar Act deal with rules of professional conduct, disbarment and discipline, breach of rules, local administrative committees, and proceedings and procedure of disbarment, such provisions are violative of article 4, part 2, section 13 of the Arizona constitution and are therefore void.

Article 4, part 2, section 13, of our constitution provides: 'Every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title; but if any subject shall be embraced in an act which will not be expressed in the title, such act shall be void only as to so much thereof as shall not be embraced in the title.'

The title to the Arizona State Bar Act, A.C.A.1939, § 32-301 et seq., here under consideration reads as follows: 'An act relating to the state bar, and creating a public corporation to be known as 'The State Bar of Arizona.' Laws of 1933, ch. 66, [p. 251].'

Query: Considering the portions of the act to which the assignment is directed, is the title thereof sufficient to meet the requirements of the above provisions of the constitution?

In arriving at an answer to the question, we will assume as a premise well-established rules of statutory construction to which this court is definitely committed:

1. That the court must give full weight to the law making power of the legislative branch of government and that no court should declare legislation invalid if there can be found a legal basis for its validity. Hernandez v. Frohmiller, 68 Ariz. 242, 204 P.2d 584. The rule that every intendment must be indulged by the courts in favor of the validity of a statute is applicable to statutes claimed to be unconstitutional as in violation of the constitutional provision requiring but one subject and matters properly connected therewith, to be stated in the title. 50 Am.Jur., Statutes, section 170.

2. Constitutional provisions requiring the subject of legislative acts to be embraced in the title will not be given a strained and narrow construction for the purpose of nullifying legislation but must be liberally construed. Hancock v. State, 31 Ariz. 389, 254 P. 225; Van Dyke v. Geary, 244 U.S. 39, 37 S.Ct. 483, 61 L.Ed. 973.

3. That any provision of the act directly or indirectly relating to the subject expressed in the title and having a natural connection therewith, and not foreign thereto, should be held to be embraced in it. Hancock v. State, supra; State v. Pelosi, 68 Ariz. 51, 199 P.2d 125.

4. Article 4, part 2, section 13 of the constitution, supra, does not require that the title be an index to the contents of the act but is satisfied if it states the subject in general terms without disclosing the details of the legislation. In re Miller, 29 Ariz. 582, 244 P. 376.

5. That this court, following the almost universal rule will not declare an act of the legislature unconstitutional unless satisfied thereof beyond a reasonable doubt. State v. Davey, 27 Ariz. 254, 232 P. 884; Black & White Taxicab Co. v. Standard Oil Co. et al., 25 Ariz. 381, 218 P. 139.

6. The title of the act however should be sufficiently full and comprehensive as to indicate, in a general way at least, what is to follow in the way of legislation. It should not be so meager as to mislead or attempt to avert inquiry into the contents thereof. Board of Control v. Buckstegge, 18 Ariz. 277, 158 P. 837.

7. A title must fairly set forth the subject of legislation with sufficient clearness to give notice of the legislative intent and purpose to those interested therein or affected by the terms of the act without the aid of any suggestions or inferences which may be drawn from knowledge de hors the language used. 59 C.J., Statutes, section 387.

8. The purpose of constitutional provisions such as ours, adopted in most states of the Union, is to prevent surprise and the evils of omnibus bills and surreptitious and hodge-podge legislation that were frequent in legislation prior to their adoption. Board of Control v. Buckstegge, supra. The question of the sufficiency of title: '* * * is not one of intent on the part of the lawmakers in phrasing the title, but of its significance and meaning to those who might read it at that stage of its history when it was only a bill going through the process of its enactment into law.' Wilmington Trust Co. v. Highfield, 4 W.W.Harr. 394, 34 Del. 394, 153 A. 864, 867.

With this premise in mind let us consider whether the title of the State Bar Act is sufficient to have given notice to any person interested therein or affected thereby, during the process of its enactment, that the bill would provide an entirely new procedure for the disciplining, suspension and disbarment of members of the State Bar of Arizona, hereinafter called the Arizona State Bar, based upon such rules and regulations as might be adopted by the board of governors (created by said act), not inconsistent with law; that the board would be granted powers in said act to provide additional grounds for suspension, disbarment or discipline of its members than those theretofore existing under the provisions of law. Is the title sufficient to apprise interested persons reading it that the act contains a provision giving to the board of governors power to appoint administrative committees, vesting said administrative committees and the board of governors with concurrent powers to initiate and conduct investigations, with or without complaint, of all matters relating to the Arizona State Bar, or its affairs, or the practice of law, or the discipline of the members of the Arizona State Bar or any other matter within the jurisdiction of the Arizona State Bar? Does the title indicate in any way that the administrative committee or the board of governors is to be vested with power to take and hear evidence touching matters under investigation, administer oaths, to compel the attendance of witnesses and production of books, papers and documents pertaining to such matters? Or to give said administrative committees and board of governors summary recourse to the superior courts of the state, to punish as for contempt any person for failure to appear in answer to a subpoena issued by either the board or committee and upon appearance for his failure to conform with the orders and requirements of said board or committee?

It is argued by the Arizona State Bar that the language, 'an act relating to the state bar' is synonymous with 'an act relating to attorneys at law' and cites In re Miller, supra, in support of its claim that the title in the instant case meets the constitutional requirements. Frankly we find no comfort in that case in support of the position of the Arizona State Bar. It is admitted in its argument that the clause 'and creating a public corporation to be known as the 'State Bar of Arizona" is a limitation upon the first part of the title. With this proposition we agree. This being true, it irresistibly follows that the scope of legislation in the body of the act is likewise limited to the same extent as the title, thus limiting the scope of the proposed legislation primarily to the incorporation of the State Bar of Arizona. With this in mind, let us examine the Miller case.

The title to the litigation involved in that case reads as follows: 'An act to amend paragraph 263, chapter 1, title 3 Revised Statues of Arizona, 1913 Civil Code, as amended by chapter 43, Session Laws of Arizona, 1919, entitled 'Attorneys at Law'; and repealing paragraph 262 of the Revised Statutes of the state of Arizona, 1913 Civil Code, and all acts and parts of acts in conflict herewith.' Laws 1925, c. 56.

While the court said that the title 'attorneys at law' advises any one who reads it: '* * * that the act deals with the general subject 'attorneys at law,' and when this term as a subject of legislation is spoken of those aspects of the question legislative bodies ordinarily concern themselves with, namerly, the admission and disbarment of attorneys, naturally come to mind. * * *' [29 Ariz. 582, 244 P. 378]

But the court points out that paragraph 263, chapter 1, title 3, supra, was originally enacted as section 2, chapter 76, Laws of 1907, Territory of Arizona, under the title: 'An act to regulate admission to the practice of law' and that it was re-enacted as section 2 of chapter 24 of the Acts of the First State Legislature, 3rd Special Session, under the title: 'An act to regulate the admission to practice of attorneys at law and the disbarment of attorneys and defining the rights, duties and privileges of attorneys at law.' and carried forward into the Civil Code of 1913 as paragraph 263 where it appears in title 3 thereof which is devoted solely to 'attorneys at law.'

The court then cites authorities sustaining the proposition that a title which simply names or describes an amended act as such without stating the special character or substance of the amendment is sufficient and that [29 Ariz. 582, 244 P. 379]: 'The matters treated in the amending act, however, must be germane to the subject expressed in the title of the original act and such that they could have been properly...