Sams v. Olah

• Decision Date: 15 September 1969
• Docket Number: No. 25292,25292
• Citation: 225 Ga. 497,169 S.E.2d 790
• Parties: Garvis L. SAMS et al. v. Stephen L. OLAH.
• Court: Georgia Supreme Court

Page 790

169 S.E.2d 790

225 Ga. 497

Garvis L. SAMS et al. v. Stephen L. OLAH.

No. 25292.

Supreme Court of Georgia.

Sept. 15, 1969.

Rehearing Denied Sept. 29, 1969.

Syllabus by the Court

The attacks made on the validity of the Act proposing the creation of the State Bar of Georgia (Ga.L.1963, pp. 70-72), and the rules and regulations adopted for the government of the State Bar (219 Ga. 878-917), were without merit, and the trial judge erred in declaring them unconstitutional and void, and in restraining and enjoining the disciplinary action against the appellee.

(a) The complaint stated a claim on which relief could be granted in alleging illegal expenditures of the funds obtained from license fees, and the judge properly held that the complaint was not subject to the motion to dismiss.

Donald D. Smith, Marietta, Charles L. Gowen, William G. Grant, Atlanta, Mallory C. Atkinson, Macon, Alexander Cocalis, Atlanta, for appellants.

George G. Finch, Atlanta, Randall Evans, Jr., Thomson, Herman H. Buckner, Duard R. McDonald, Marietta, for appellee.

Arthur K. Bolton, Atty. Gen., Atlanta, George D. Busbee, Albany, Claude Christopher, Griffin, Paul Hanes, Robert E. Hicks, Carl E. Sanders, Atlanta, for parties at interest not parties to record.

William C. Turpin, Jr., Charles J. Bloch, Maurice C. Thomas, Frank C. Jones, Macon, Joseph B. Cumming, Augusta, Robert B. Troutman, F. M. Bird, Henry L. Bowden, Hugh M. Dorsey, Jr., David H. Gambrell, Atlanta, Albert J. Henderson, Sr., Canton, Howell Hollis, Columbus, Robert M. Heard, Elberton, H. H. Perry, Jr., Albany, Will Ed Smith, Eastman, Omer W. Franklin, Valdosta, amicus curiae.

MOBLEY, Presiding Justice.

This appeal is from an order denying a motion to dismiss an equitable complaint; declaring Ga.L.1963, pp. 70-72, to be unconstitutional, null, and void; and granting an injunction.

Stephen J. Olah, an attorney licensed to practice law in Georgia, brought an action against disciplinay officials of the State Bar of Georgia and against the State Bar of Georgia. He alleged that they are proceeding against him without authority of law in a disciplinary matter because the law under which the State Bar of Georgia was created (Ga.L.1963, pp. 70-72), and the rules of the State Bar (219 Ga. pp. 878-917), violate the Constitution of Georgia and the Constitution of the United States, for stated reasons, and are contrary to certain laws of the State. He sought injunction against the prosecution of the disciplinary action against him and against other alleged illegal actions of the State Bar.

The order of the trial judge, entered after a hearing on the issues involved in the pleadings, held that (1) the complaint stated a claim for equitable relief because of the unconstitutionality of the statute, and because of the alleged illegal expenditure of funds by the State Bar to foster legislation and promote ideologies, political issues, and candidates which the complainant opposes. (2) Ga.L.1963, pp. 70-72, is unconstitutional, null, and void on a number of grounds alleged in the complaint, examples of which are stated. (3) The defendants are restrained and enjoined from proceeding with the disciplinary action against the complainant under rules and regulations adopted pursuant to the 1963 Act.

1. The complaint made numerous constitutional attacks on the Act proposing the creation of the State Bar of Georgia. (Ga.L.1963, pp. 70-72). The trial judge's order holds that the Act is unconstitutional, null, and void 'for a considerable number of grounds alleged' and only specifies a few of the grounds on which the Act is held unconstitutional. It is therefore necessary that we consider all constitutional attacks to determine if any of them are meritorious.

A number of the grounds of attack were dealt with by this court in Wallace v. Wallace, 225 Ga. 102, 166 S.E.2d 718, adversely to the contentions of the complainant (appellee) herein. These attacks are as follows: (1) The State Bar Act violates Art. I, Sec. I, Par. XXIII of the Constitution of Georgia (Code Ann. § 2-123), in that it delegates legislative power to the Supreme Court of Georgia and to the Georgia Bar Association. (2) The State Bar Act delegates to the Supreme Court of Georgia the right to create the State Bar of Georgia contrary to Art. VI, Sec. II, Par. IV of the Constitution of Georgia (Code Ann. § 2-3704), which provides that: 'The Supreme Court shall have no original jurisdiction but shall be a court alone for the trial and correction of errors of law * * *.' (3) The State Bar Act is a special law respecting the Supreme Court for which provision has already been made by general law, Code § 24-3901, enumerating the powers of the Supreme Court, and this violates the Constitution of Georgia, Art. I, Sec. IV, Par. I (Code Ann. § 2-401), prohibiting the passage of a special law in any case for which provision has been made by existing general law. (4) The State Bar Act deprives the appellee and other lawyers of their right to have their rights, duties, and obligations as lawyers defined by an Act of the General Assembly of Georgia, and not otherwise, contrary to Art. III, Sec. I, Par. I (Code Ann. § 2-1301) and Art. III, Sec. VII, Par. XX (Code Ann. § 2-1920) of the Constitution of Georgia. (5) The State Bar Act is unconstitutional because it creates a private corporation in violation of Art. III, Sec. VII, Par. XVII (Code Ann. § 2-1917) of the Georgia Constitution, which provides that the General Assembly shall have no power to grant corporate powers to private companies.

Two Justices dissented from the Wallace case on grounds other than the constitutional grounds, which would not be reached under their theory of the case, and one Justice did not participate because of illness. The appellee has argued these grounds of constitutional attack decided in the Wallace case, and asks that we overrule the Wallace case. After careful consideration of the Wallace case, we adhere to the rulings made therein.

2. It was asserted by the appellee that the State Bar Act violates the Constitution of Georgia, Art. III, Sec. VII, Par. XVI (Code Ann. § 2-1916), which provides that no law or section of the Code shall be amended or repealed by mere reference to its title, or to the number of the section of the Code, but the amending or repealing act shall distinctly describe the law to be amended or repealed, and the alteration to be made, in that the State Bar Act purports to repeal all laws and parts of laws in conflict with it, but does not describe the law or laws to be repealed, or the alterations to be made.

The Act proposing the creation of the State Bar does not purport to amend any law or section of the Code. If the Act should have the effect of repealing any law or Code section by implication, it is a a well settled principle that repeals by implication do not come within the provisions of Art. III, Sec. VII, Par. XVII of the Constitution. Fortson v. Fortson, 200 Ga. 116, 119, 35 S.E.2d 896; Leonard v. State ex rel. Lanier, 204 Ga. 465(1), 50 S.E.2d 212.

3. The trial court held that the State Bar Act violated the Constitution, Art. III, Sec. VII, Par. VIII (Code Ann. § 2-1908) in that it contained matter in the body of the Act different from that expressed in the title, in allowing the administrative arm of the court (the State Bar) 'to control its own rules and prevent the Supreme Court from creating rules not presented it (1) by the Georgia Bar Association; and (2) thereafter, the State Bar * * *'

The title of the Act gives notice that the Act is 'to authorize the Supreme Court of Georgia to establish, as an administrative arm of the Court, a unified, self-governing bar * * *' and 'to provide for the adoption of rules and regulations by the Supreme Court for the organization and government of the unified bar * * *.' Further, it gives notice that the Act is 'to provide the method of making application to the Supreme Court for the establishment of the 'State Bar of Georgia' and the method of establishing and amending rules and regulations governing the same; * * *.'

The title of the Act stating that it provides a method of making application to the Supreme Court for establishment of the State Bar gives notice that application for creation of the State Bar may be made by some group, and that the Act will set out the conditions of the application. The statement in the caption that the Act will provide 'the method of establishing and amending rules and regulations governing the same,' would be notice that the Act could contain the provision (in § 5) that the 'rules and regulations may be amended only upon recommendations of the 'State Bar of Georgia' under such rules and proceedings as shall be prescribed by the Court.'

The Act is not subject to the attack that it violates the constitutional prohibition against an act containing matter different from that expressed in the title. See Sheppard v. DeKalb County Board of Education, 220 Ga. 219, 220(1), 138 S.E.2d 271; Nash v. National Preferred Life Ins. Co., 222 Ga. 14(1), 148 S.E.2d 402.

4. While the appellee argues strongly that the Act proposing the creation of the State Bar was an improper delegation of a legislative function to the Supreme Court, he further contends that the Act improperly restricts the power given the court by providing that it might create a unified bar only on petition by the Georgia Bar Association, could initially adopt only those rules and regulations for the government of the unified bar which had been approved by the Georgia Bar Association, and upon the establishment of the State Bar could amend the rules and regulations only upon recommendations of the State Bar.

In Wallace v. Wallace, 225 Ga. 102, 166 S.E.2d 718, supra, it was held that the creation of a unified state bar is a judicial function. In proposing that the Supreme Court create a unified bar, the General Assembly did not have the authority to circumscribe the court by...