State ex rel. Thorn v. Luff

• Citation: 175 S.E.2d 472,154 W.Va. 350
• Decision Date: 13 July 1970
• Docket Number: No. 12931,12931
• Parties: STATE ex rel. Arle THORN v. Edward T. LUFF, Judge, etc., Paul B. Ware, et al., etc.
• Court: Supreme Court of West Virginia

Page 472

175 S.E.2d 472

154 W.Va. 350

STATE ex rel. Arle THORN v. Edward T. LUFF, Judge, etc., Paul B. Ware, et al., etc.

No. 12931.

Supreme Court of Appeals of West Virginia.

Submitted May 20, 1970.

Decided June 30, 1970.

Dissenting Opinion July 13, 1970.

Syllabus by the Court

1. 'A court of equity has jurisdiction to prevent by injunction the unlawful practice of law by a layman when such relief is sought by attorneys at law acting for themselves and other affected members of the legal profession or by a duly constituted and recognized bar association.' Point 1, syllabus, West Virginia State Bar v. Earley, 144 W.Va. 504 (109 S.E.2d 420).

2. 'Although a court has jurisdiction of the subject matter in controversy and of the parties, if it clearly appears that in the conduct of the case it has exceeded its legitimate powers with respect to some pertinent question a writ of prohibition will lie to prevent such abuse of power.' Point 2, syllabus, State ex rel. State Road Commission v. Taylor, Judge, 151 W.Va. 535 (153 S.E.2d 531).

3. 'The judicial department of the government has the inherent power to define, supervise, regulate and control the practice of law and the Legislature can not restrict or impair this power of the courts or permit or authorize laymen to engage in the practice of law.' Point 7, syllabus, West Virginia State Bar v. Earley, 144 W.Va. 504 (109 S.E.2d 420).

4. Code, 44--3--1, as amended, does not prescribe qualifications for a person appointed as a Commissioner of Accounts. Therefore, a person who is not an attorney at law may be appointed to such position.

5. The duties of a Commissioner of Accounts do not in any manner require or allow such Commissioner to practice law in connection with any matter which is before him as a Commissioner of Accounts, a position in which he acts as a judicial officer in probate matters and settlement of estates.

6. A Commissioner of Accounts acts in a judicial capacity, and if such Commissioner is an attorney at law he is prohibited from practicing law in connection with any matter handled by him as Commissioner, and if he does so he is guilty of unethical conduct.

Franklin W. Kern, Charleston, C. R. Nutter, Clarksburg, for relator.

Steptoe & Johnson, Willis O. Shay, Clarksburg, for respondents.

James C. West, Jr., Clarksburg, for amicus curiae.

BERRY, Judge:

In this original prohibition proceeding instituted in this Court, the petitioner, Arle Thorn, seeks a writ to prohibit the Honorable Edward T. Luff, Judge of the Circuit Court of Barbour County, West Virginia, from proceeding further in an injunction proceeding instituted in the Circuit Court of Barbour County by Paul B. Ware, John A. Mosesso, Caton N. Hill, James H. Ware and Lynne Rexroad, individually and as members of the Barbour County Bar Association, to enjoin the petitioner herein from acting as Commissioner of Accounts for the County Court of Barbour County after having been duly appointed as such Commissioner of Accounts by the County Court of Barbour County on February 2, 1970. A rule was issued on March 2, 1970, returnable April 28, 1970, and then continued until May 19, 1970, at which time the case was submitted for decision by this Court on arguments and briefs by the petitioner and respondents as well as an amicus curiae brief filed by the Committee on Unlawful Practice of Law of the West Virginia State Bar, it having moved for leave to file such brief and such leave having been granted.

The petitioner, Arle Thorn, was appointed as Commissioner of Accounts in Barbour County by the County Court of Barbour County on February 2, 1970, to replace E. Wayne Talbott, an attorney at law, who had held the office of Commissioner of Accounts in that county. Immediately after the appointment of the petitioner a representative of the Barbour County Bar Association appeared before the County Court and protested the appointment of a layman to the office of Commissioner of Accounts. On February 3, 1970, the active members of the Barbour County Bar Association, who are also respondents in this proceeding, instituted the injunction proceeding in the Circuit Court of Barbour County against the petitioner herein seeking to enjoin him from acting as Commissioner of Accounts and stating that Lynne Rexroad, a member of the local bar, would accept the position.

A temporary injunction was issued by the Circuit Court and the matter was set for hearing on February 10, 1970, at which time the petitioner moved to dismiss the injunction on the ground that the Circuit Court had no jurisdiction to hear the matter and that a proper bond had not been given. On motion of the plaintiffs in the injunction proceeding, which was objected to by the petitioner, the matter was continued until February 24, 1970, and apparently a proper bond was given. The petitioner for prohibition was filed in this Court on the same day to which the injunction proceeding was continued in the Circuit Court, and it stated that the Circuit Court did not have jurisdiction in the injunction proceeding because the appointment of the petitioner as Commissioner of Accounts was authorized by law to be made by the County Court and that no qualifications were required by the statute or otherwise, and that consequently the matter could not be inquired into by the Circuit Court.

A motion to dismiss the petition for a writ of prohibition was filed by the respondents which asserted that the Circuit Court had inherent power to review the appointments of the County Court for the office of Commissioner of Accounts to determine whether or not such appointee was qualified to hold said office. An answer was also filed by the respondents to the same effect.

It is contended by the respondents and the brief filed by the Committee on Unlawful Practice of Law by the West Virginia State Bar that the statutory provisions creating and outlining the duties of Commissioners of Accounts require that any person holding such office must engage in activities constituting the practice of law, and that regardless of the failure of the legislature to specify a license to practice law as being a qualification to hold such office, such qualification is implicit in the statute.

The sole issue, therefore, in this proceeding is whether or not a Commissioner of Accounts is engaged in the practice of law in the performance of his duties as such. If the performance of such duties as Commissioner of Accounts constitutes the practice of law, then a layman could not be appointed to such office because the performance of such duties cause the performance of such dities would amount to the unauthorized practice of law which it is prohibited for any layman to engage in, and a court of equity has jurisdiction to enjoin such practice. West Virginia State Bar v. Earley, 144 W.Va. 504, 109 S.E.2d 420. This is clearly stated in the first syllabus point in the Earley case in the following language: 'A court of equity has jurisdiction to prevent by injunction the unlawful practice of law by a layman when such relief is sought by attorneys at law acting for themselves and other affected members of the legal profession or by a duly constituted and recognized bar association.'

However, if the duties of a Commissioner of Accounts do not involve the practice of law the appointment of a layman as such Commissioner rests exclusively with the County Court of Barbour County. Code, 44--3--1, as amended. Therefore, even though the Circuit Court has jurisdiction in injunction proceedings, it would exceed its legitimate power in interfering by enjoining and thus indirectly supervising the appointing of a Commissioner of Accounts authorized under the statute to be appointed by the County Court. State ex rel. Linger v. County Court of Upshur County, 150 W.Va. 207, 144 S.E.2d 689; State ex rel. St. Clair v. Marinari, Judge, 150 W.Va. 373, 145 S.E.2d 464; State ex rel. State Road Commission v. Taylor, Judge, 151 W.Va. 535, 153 S.E.2d 531. This principle is adequately stated in the case of State ex rel. State Road Commission v. Taylor, Judge, 151 W.Va. 535, 153 S.E.2d 531, point 2 of the syllabus, wherein it is stated: 'Although a court has jurisdiction of the subject matter in controversy and of the parties, if it clearly appears that in the conduct of the case it has exceeded its legitimate powers with respect to some pertinent question a writ of prohibition will lie to prevent such abuse of power.' It was also held in the case of State ex rel. Linger v. County Court of Upshur County, 150 W.Va. 207, 144 S.E.2d 689, that a prohibition proceeding against the county court in connection with appointments made by such court constitutes a collateral attack upon appointments authorized to be made by the county court. Code, 44--3--1, as amended, provides for the appointment of Commissioners of Accounts, but imposes no qualifications for the office.

It is the contention of the State Bar that the provisions of Code, 44--3--7, requiring the Commissioner of Accounts to advise the county court on the law with regard to matters referred to the Commissioner, require a Commissioner of Accounts to engage in the practice of law by virtue of this section. When the Code of West Virginia was revised and the 1931 Official Code of West Virginia was adopted by the legislature the revisers' note to section 7 states that the section is new and the purpose was to furnish a menas of handling controverted matters in the county court by an officer trained in the law. However, the legislative note to said section states that modifications were made in this section in conformity with the change mentioned in the legislative note to section 1 of this article. The revisers' note to section 1 (44--3--1) provides for one commissioner instead of four and requires him to be a lawyer of certain qualifications. The legislative note when the section was approved and...