Opinion
No. 3085
October 1, 1934.
George Springmeyer and Douglas Busey, for Relators:
Gray Mashburn, Attorney-General, and W.T. Mathews and Julian Thruston, Deputy Attorneys-Generals, for Respondent:
N.E. Conklin, for Intervener:
Under a constitutional provision similar to our N.C.L. 618, the Washington supreme court, in State ex rel. Willis v. Monfort, 159 P. 889, L.R.A. 1917B. 801, said: "We think it is clear that the constitution meant to say that no person is eligible to the office of judge of the superior court unless he shall have been admitted to practice in the courts of record in this state, which means that he not only shall have been, but that he is at the time he becomes a candidate or is required to qualify as such judge, entitled to practice in the courts of this state."
A fortiori would it be true that a person must be eligible at the time he becomes a candidate under a statute like the 1931 Nevada statute, which specifically states that "No person shall be a candidate for" such office unless he possesses certain qualifications. See, also, Brown v. Woods, 39 P. 473; Hanson v. Cornell, 12 P.2d 802; State ex rel. Fugina Pierce, 191 Wis. 1, 209 N.W. 693.
The action of the state bar in giving notice to Mr. Pilkington and suspending him in the manner it did was in compliance with the provisions of sec. 46 of the state bar act, sec. 585 N.C.L. It seems plain that the language of section 46, namely, "must suspend," means that there was no alternative for the state bar, and that the suspension was proper. Also, it seems plain that this suspension for nonpayment of fees need not be recommended to or referred to or finally be ordered by the supreme court, for suspension for nonpayment of fees is not dealt with by section 26. Section 26 and section 46 are entirely distinct and separate from and not at all dependent upon each other. Section 26 has to do with discipline, suspension and disbarment for misconduct, which is a matter which should be passed upon finally by the supreme court after examination of the record; while section 46 has to do with suspension for nonpayment of fees only, which is a routine matter and is so clear that no transcript of evidence would help, and evidently the framers of the statute had in mind not to take the valuable time of the supreme court with such a detail. Quite naturally, that quasi-judicial power was delegated to the state bar. In the case of In re Scott, 53 Nev. 25, although it did not directly pass upon section 46 of the state bar act, nevertheless the decision is to the effect that in the quasi-judicial matter of regulating the conduct of lawyers, the legislature, as the direct representative of the people, is supreme and above the courts.
We, as attorneys for respondent, recognize the importance of the office of district judge. We are not unmindful of the fact that a candidate for that office must measure up to the qualifications imposed by our constitution, laws and policy. We therefore refrain from taking sides with respect to the merits of the matter. Our duty is to represent the secretary of state, as we are required to so do by law. Our position is that, under the law as developed by this court in analogous cases, prohibition is not the proper remedy in this case.
The action of the board of governors of the state bar in ordering Mr. Pilkington's suspension was premature, and even then, such order should be treated as a finding of fact and recommendation that the supreme court make such order of suspension, and his suspension should be made by an order of that court. Carpenter, Petnr., v. State Bar of California, 211 Cal. 358.
It is the supreme court alone which has power to enter an effective order of disbarment or suspension, exercising the inherent power of the court; such judicial power has not been, and cannot be, conferred upon the board of governors of the state bar. In re Shattuck, 208 Cal. 6.
OPINION
Invoking our original jurisdiction, relators seek a writ of prohibition to restrain the respondent from certifying the name of H. Pilkington as a candidate for the office of district judge of the Fifth judicial district of the State of Nevada.
At the hearing, upon stipulation of counsel for relators and the attorney-general, Pilkington was permitted to intervene.
Respondent insists that prohibition is not a proper remedy. We find it unnecessary to determine this contention.
1. Two grounds are presented by relators in support of their claim of right to the issuance of the writ.
The first is that intervener is not eligible for said office or to be a candidate for the same because he had been suspended as a member of the state bar of Nevada for nonpayment of dues for the year 1933 and was so suspended on the 4th day of August, 1934, when he filed his declaration of candidacy. The state bar of Nevada, contending that intervener had not paid his dues in the organization after two months' written notice, made an order on June 1, 1934, purporting to suspend him from membership in the state bar. He had not been reinstated as a member thereof on August 4, 1934, when he filed his said declaration of candidacy. This order of suspension was made under the provisions of section 46 of the state bar act (Stats. 1928, Sp. Sess., ch. 13 [section 585, N.C.L.]) which, in part, reads: "Any member * * * failing to pay any fees after the same become due, and after two months' written notice of his delinquency, must be suspended from membership in the state bar. * * *"
The contention that the intervener is ineligible by reason of the facts stated cannot be maintained. The order of suspension made by the state bar was never called to the attention of this court, and consequently no order of suspension was made thereon or at all in this court. The action of the state bar in this respect, if effective, would amount to a suspension of intervener's right to practice law. This would follow as a course by reason of section 47 of the state bar act, section 586, N.C.L., which reads: "No person shall practice law in this state subsequent to the organization meeting of the state bar unless he shall be an active member thereof as hereinbefore defined."
2, 3. It is uniformly held that the power to disbar or suspend an attorney from the practice of law, like the power to admit a person to such practice, is judicial in its nature and can be exercised only by the courts. Ex parte Garland, 4 Wall. 333, 18 L.Ed. 366; Ex parte Secombe, 19 How. 9, 15 L.Ed. 565; In re Durant, 80 Conn. 140, 67 A. 497, 10 Ann. Cas. 539; In re Opinion of the Justices, 279 Mass. 607, 180 N.E. 725, 81 A.L.R. 1059. This being so, the case is ruled by the decision in In re Scott, 53 Nev. 24, 292 P. 291, in which it is held that the decision of the board of governors of the state bar relating to the disbarment or suspension of an attorney is merely recommendatory and not final, and does not and cannot amount to a judgment of disbarment or suspension. The decision in In re Scott, construing section 26 of the state bar act (N.C.L. sec. 565), follows the decision in In re Shattuck, 208 Cal. 6, 279 P. 998, construing section 26 of the state bar act of California (St. 1927, p. 41). Both sections are in the same language.
Counsel for relators dispute the rule and contend further that as the instant case is governed by section 46 of the state bar act, a different rule is applicable, and that a board of governors may suspend for the nonpayment of dues, which suspension will be effective without an order of the supreme court.
The same contention that counsel for relators make was made in Carpenter v. State Bar of California, 211 Cal. 358, 295 P. 23, 24, which involved the suspension of an attorney by the board of governors for the nonpayment of dues. The court, quoting portions of sections 46 and 47 of the state bar act of California (St. 1927, pp. 44, 45), which are identical in language with the same sections of our state bar act, said: "It is clear, therefore, that the sum total or aggregate effect of these provisions is to suspend the right of petitioner to practice law, which suspension will terminate only upon his compliance with the law. It is to be noted, however, that the act does not in so many words say that the board of governors shall make the order of suspension from membership. It occurs to us that, as this really amounts to suspension from the right to practice law, and further that, inasmuch as an attorney is an officer of the court, it would seem to have been the legislative intent that his suspension should be made by an order of this court, and that the action of the board of governors in the matter should be treated as a finding of fact and recommendation that this court make such order. This, too, is in consonance with our holdings in matters of admission and discipline of attorneys."
We are in accord with this opinion.
The second ground presented to us is without merit and will not be discussed.
As intervener, H. Pilkington, had not been suspended by this court, an order was heretofore made dismissing the proceeding.
I concur on authority of the cases of In re Shattuck, 208 Cal. 6, 279 P. 998, and Carpenter v. State Bar, 211 Cal. 358, 295 P. 23.