Wallace v. Wallace, 25034

• Decision Date: 06 February 1969
• Docket Number: No. 25034,25034
• Parties: A. Ed WALLACE, Jr. v. Albert Bailey WALLACE.
• Court: Georgia Supreme Court

Page 718

166 S.E.2d 718

225 Ga. 102

A. Ed WALLACE, Jr. v. Albert Bailey WALLACE.

No. 25034.

Supreme Court of Georgia.

Feb. 6, 1969.

Rehearing Denied Feb. 20, 1969.

Syllabus by the Court

1, 2. Not having lawfully practiced law for three years next preceding his election, the appellant was ineligible for the office of district attorney.

3. Since the creation by this court of the State Bar of Georgia was the valid exercise of a judicial function, the constitutional attacks here made are not meritorious.

George G. Finch, Wesley R. Asinof, Atlanta, for appellant.

Charles Driebe, Albert Bailey Wallace, Eugene Brown, Jonesboro, Oze Horton, Hapeville, for appellee.

William C. Turpin, Jr., Charles J. Bloch, Maurice C. Thomas, Macon, Frank C. Jones, Mallory C. Atkinson, Joseph B. Cumming, Henry P. Eve, Augusta, Charles L. Gowen, Robert B. Troutman, F. M. Bird, Hugh M. Dorsey, Jr., David H. Gambrell, Alexander Cocalis, 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, Jr., Valdosta, amicus curiae.

GRICE, Justice.

This review involves an election contest which, among other issues, draws into question the validity of the creation of the State Bar of Georgia. The contest, relating to the office of District Attorney for the Clayton Judicial Circuit, is, insofar as this appeal is concerned, between the appellant Albert Edmund Wallace, Jr., and the appellee Albert Bailey Wallace. It arose following appellant's nomination for that office in the 1968 Democratic Primary and the declaration of his election to the same in the general election of November 5, 1968.

The appellee, a qualified write-in candidate and voter, on November 15, 1968, filed in the Superior Court of Clayton County his petition claiming that the appellant was ineligible to hold the office. He asserted, insofar as necessary to recite here, that the appellant did not meet the constitutional requirement of three years of law practice, since he was not a member in good standing of the State Bar of Georgia because he did not register with or pay any license fee to the State Bar of Georgia until June 1968, although he had been admitted to practice law in May 1963.

To this petition appellant filed an answer in which he denied the essential allegations and interposed several defenses. Those which are material here may be summarized as follows: (1) that he is eligible to hold the office under both the Constitution and the laws of Georgia; (2) that he had never been suspended from the practice of law, disbarred or disciplined, and that he had practiced law for more, than three years next preceding his election; (3) that Rule 1-501 of the State Bar of Georgia, providing for payment of license fees on January 1 of each year, is not self executing insofar as suspension is concerned, and provides neither for an 'automatic' suspension nor that the member 'shall stand suspended' for nonpayment of such license fee; and (4) that Georgia Laws 1963, page 70, and Rules of the State Bar of Georgia under which appellee claims appellant to be ineligible, are in violation of the State Constitution for several specified reasons which will be recited later.

The contest came on for hearing before a judge of an adjoining circuit without a jury. After hearing evidence, the essential portions of which are hereinafter referred to, he entered an order holding that appellant was ineligible to hold the office and that the constitutional issues were without merit. The order was superseded pending this appeal.

1. We deal first with Enumeration number 1, which challenges the holding that appellant was ineligible. This enumeration asserts in substance that the trial court erred in holding that appellant, who was admitted to practice by a superior court on May 31, 1963, had practiced law continuously in the courts of Georgia since that date, had never been suspended or disbarred, and was elected to the office of solicitor general (now district attorney) on November 5, 1968, was ineligible to hold that office.

Appellant urges that since he has met the requirements recited in the Constitution and the statute, he is eligible for the office. He contends that the Constitution does not define the practice of law, but that the General Assembly considers that admission to the bar and license to practice in the superior courts is all that is required to constitute the practice of law under the constitutional provision, and that membership in the State Bar of Georgia or payment of dues thereto is not any part of the eligibility requirement.

We cannot agree.

Our State Constitution provides in material part that '* * * no person shall be hereafter elected Solicitor General, unless at the time of his election he * * * shall have practiced law for three years next preceding his election.' Art. VI, Sec. XIII, Par. I; Code Ann. § 2-4801. An act of the General Assembly provides: 'No person is eligible to the office of solicitor general * * * who has not been duly admitted and licensed to practice law in the superior courts for at least three years * * *' Code § 24-2901, amended by Ga.L.1964, p. 362.

The statute's denial of eligibility to one 'who has not been duly admitted and licensed to practice law in the superior courts for at least three years' (Code Ann. § 24-2901, supra), must be read in the light of the higher requirement of the Constitution, 'shall have practiced law for three years' (Art. VI, Sec. XIII, Par. I, supra). The language 'shall have practiced' means actual practice and, of course, contemplates lawful practice. No one would seriously argue that the Constitution intended to sanction or approve the unlawful practice of law.

Admittedly, appellant was engaged in the practice of law during the three years immediately preceding his election. But the question is whether it was lawful practice.

The undisputed evidence adduced upon the hearing shows that although the appellant was admitted to the practice of law in May 1963 and the State Bar of Georgia was created in December 1963, he never registered with or paid any license fee to it until June 1968, 'right before' he entered the race for solicitor general.

Rule 1-203 of the rules and regulations for the organization and government of the State Bar of Georgia (219 Ga. 878, 879), approved by this court on December 6, 1963, states that 'No person shall practice law in this State unless he is an active member of the State Bar of Georgia in good standing * * *'

The appellant contends that since he has never been suspended for any reason he is a member in good standing of the State Bar. He points to Rule 1-204 (219 Ga. 878, 879) which provides that 'No person shall be deemed a member in good standing: (a) While suspended for nonpayment of the license fee prescribed * * * (b) While suspended for disciplinary reasons * * *' and asserts that no affirmative action suspending him having been taken, he was authorized to practice law during the years 1964-June 1968.

This contention is wholly without merit. What appellant overlooks is that he had never achieved the status of a member of the State Bar in good standing so as to require any suspension, affirmative or otherwise, to deprive him of it. Thus the question of suspension is not even relevant. A person cannot be suspended from a status he does not occupy and has never occupied.

We fully agree with the learned trial judge that 'It is crystal clear that no person can legally practice law without first registering and paying the license fee required.' Besides Rules 1-203 and 1-204 quoted in part above, it is apparent from paragraph 7 of the Order of this court creating the State Bar (219 Ga. 873, 876) that this result was intended.

The appellant's practice of law during the years 1964, 1965, 1966, 1967 and approximately one-half of 1968 having been unlawful, he does not meet the constitutionality eligibility requirement of having practiced law for three years next preceding his election, and the trial court's holding that he was ineligible for the office of district attorney was correct.

2. Enumeration of error number 2, asserting in essence that the trial court erred in construing Rule 1-204 of the State Bar of Georgia insofar as suspension of the appellant is concerned, is controlled adversely to him by the ruling in Division 1, supra, of this opinion.

3. This brings us to the enumeration complaining of the overruling of appellant's attacks on the constitutionality of Georgia Laws 1963, page 70, which authorized this court to create the State Bar of Georgia.

Before going into the issues some prior events should be noted.

The movement seeking the establishment of unified, or integrated as they also are called, state bar organizations began throughout the United States about 1920. From the reported cases and legal periodicals it is apparent that the efforts were fraught with controversy. The arguments for and against have been thorough, and need no reiteration here.

The nature of this type of organization has been well defined: 'This means that all practicing attorneys in the state are required to be members of the state bar, that they are subject to the rules of the bar, including provisions for the payment of an annual fee to administer the purposes of the integrated bar, and that they are required to adhere to a code of ethics and are subject to disciplinary proceedings for infractions of the code. Whether created by or pursuant to statutes or by court rules, integrated bars have common characteristics of being organized by or under the direction of the state, and of being under its direct control; and in effect such bars are governmental bodies * * *' 7 Am.Jur.2d 47, Attorneys at Law, § 7.

A number of purposes of such organizations have been stated. With varying emphasis they include such matters as improving the admininstration of justice, assisting in the...