Baker v. Varser , 240 N.C. 260 ( 1954 )

82 S.E.2d 90 (1954) 240 N.C. 260

BAKER
v.
VARSER et al.

No. 459.

Supreme Court of North Carolina.

May 19, 1954.

R. P. Upchurch, Raleigh, for plaintiff, appellant.

Bennett H. Perry, Henderson, for defendants, appellees.

PARKER, Justice.

This case was predicated, and tried in the former appeal on the theory that the plaintiff had shown by evidence compliance with Rule 5 of the Rules Governing Admission to Practise of Law in North Carolina. These rules are printed in 208 N.C. 857 et seq.; in 221 N.C. 608 et seq.; and in G.S.N.C. Vol. 4, p. 65 et seq. In his brief of 39 pages in the former appeal, he did not question the constitutionality of the statute giving authority to the defendant Board of Law Examiners to make Rule 5.

We held in our former opinion that there was in effect at that time no provision for an appeal from the Board of Law Examiners, and therefore under G.S. § 1-269 authorized a writ of certiorari "to the end that the record of pertinent proceeding in respect to question of rule applied in determining residence of plaintiff within the State in connection with his application for bar examination, may be judicially reviewed." [239 N.C. 180, 79 S.E.2d 764.] It clearly appears by the language of our former opinion, which we here emphasize, that the matter was to be heard in the Superior Court solely upon the Record, and the hearing should be limited to the question of residence of plaintiff within the State in connection with his application to take the examination. Therefore, many interesting questions discussed in plaintiff's brief are not relevant—e. g. his exceptions to the refusal of the trial judge to permit him to introduce in evidence his oral examination of Edward L. Cannon, Secretary of the Board of Law Examiners of the State, before Judge Fountain.

For the first time on this appeal the plaintiff seeks to raise the constitutionality of that part of Ch. 210, Public Laws of North Carolina 1933 (now codified as G.S. N.C. § 84-15 et seq.), by virtue of which Rule 5 was adopted and approved, on the ground that the General Assembly was without power to delegate its law making power. The plaintiff contends that Rule 5 is void, which leaves C.S. § 196 in force, and that under that section the sole requirement as to residence of an applicant to take an examination to practise law in this jurisdiction is that the "applicant must be a bona fide resident of North Carolina".

C.S. § 196 has been deleted from G.S.N.C. 1943—see G.S.N.C. 1943, Vol. 4, p. 130, where it is said C.S. §§ 194-196 superseded by G.S.N.C. § 84-24. C.S. § 196 not being contained in General Statutes of North Carolina 1943 was thereby repealed by virtue of G.S.N.C. § 164-2; it not coming within the exceptions and limitations set forth thereafter in Ch. 164, G.S.N.C. See Kirby v. Stokes County Board of Education, 230 N.C. 619, 55 S.E.2d 322.

An appeal ex necessitate follows the theory of the trial. In re Parker, 209 N.C. 693, 184 S.E. 532; Sawyer v. Staples, 224 N.C. 298, 29 S.E.2d 892; Lyda v. Marion, 239 N.C. 265, 79 S.E.2d 726. As the plaintiff did not raise the question of constitutionality of that part of Ch. 210, Public Laws 1933, giving the defendant Board of Law Examiners authority to make Rule 5, it may not be raised for the first time in this Court on the second appeal. Bank of Wadesboro v. Caudle, 239 N.C. 270, 79 S.E.2d 723; Phillips v. Shaw, 238 N.C. 518, 78 S.E.2d 314; Wachovia Bank & Trust Co. v. Waddell, 237 N.C. 342, 75 S.E.2d 151; State v. Lueders, 214 N.C. 558, 200 S.E. 22; 11 Am.Jur., Constitutional Law, Sec. 93.

A person does not have a natural or constitutional right to practise law; it is a privilege or franchise to be earned by hard study and compliance with the qualifications for admission to practise law prescribed by law. Seawell v. Carolina Motor Club, 209 N.C. 624, 184 S.E. 540; 7 C.J.S., Attorney and Client, § 4(b). By virtue of its police power a state is authorized to establish qualifications for admission to practise law in its jurisdiction. In re Applicants for License, 143 N.C. 1, 55 S.E. 635, 10 L.R.A.,N.S., 288. An attorney at law is a sworn officer of the court with an obligation to the public, as well as his clients, for the office of attorney at law is indispensable to the administration of justice. In re Dillingham, 188 N.C. 162, 124 S.E. 130; 7 C.J.S., Attorney and Client, § 4(a). The purpose of the statute creating the North Carolina State Bar was to enable the bar to render more effective service in improving the administration of justice, particularly in dealing with the problem of admission to the bar, and of discipling and disbarring attorneys at law.

The pertinent part of Rule 5 is as follows: "Citizenship, Character, Age, Residence.—Each applicant at the time of filing his application, must be a citizen of the United States, a person of good moral character, and must have been, for the twelve months next preceding the filing of his application, a citizen and resident of North Carolina * * *."

Whether the term "resident" as used in Rule 5 means that "residence" is synonymous with "domicile" depends on the purpose of Rule Five, the nature of the subject matter, as well as the context in which the term is used. 28 C.J.S., Domicile § 2(b); 17 Am.Jur., Domicil, Sec. 9.

The North Carolina Constitution provides in art. VI, Sec. 2, as a prerequisite to the right to vote that an elector "shall reside in the State of North Carolina for one year and in the precinct, ward or other election district in which he offers to vote four months next preceding the election". This Court has held "without variation that residence within the purview of this constitutional provision is synonymous with domicile, denoting a permanent dwelling place, to which the party, when absent, intends to return." Owens v. Chaplin, 228 N.C. 705, 47 S.E.2d 12, 15 (where the authorities are cited). In Roberts v. Cannon, 20 N.C. 398, Gaston, J., speaking for the Court said: "* * * by a residence in the county the Constitution intends a domicil in that county."

Hannon v. Grizzard, 89 N.C. 115, was a quo warranto proceeding. At a regular election held in November 1882 in and for Halifax County, the relator was chosen by a majority of the votes cast to the office of register of deeds, and it was so declared by the county canvassers. The board of county commissioners refused to permit him to qualify upon the ground of his want of qualification required by the Constitution in that he had not "resided in the State twelve months next preceding the election, and ninety days in the county." The relator was in the service of the federal government at Washington, D. C., as watchman under the Treasury Department, but continued to pay poll tax and vote in Halifax County, and spent a part of each year at his home in Halifax. This Court held that his constitutional residence remained unchanged in Halifax.

Winborne, J., speaking for the Court in In re Hall's Guardianship, 235 N.C. 697, 71 S.E.2d 140, 145, 32 A.L.R. 2d 856 said: "* * * as a general rule, a student, although an adult, does not acquire a legal domicile at an educational institution where he resides with the ultimate intention of returning to his original home. 28 C.J.S., Domicile § 12(g) 3, p. 28." But an adult student, independent of parental control and support, may acquire a domicile at the place where a university or college is situated, if he regards the place as his home, or intends to stay there indefinitely, without any intention of resuming his former home. Berry v. Wilcox, 44 Neb. 82, 62 N.W. 249, 48 Am. St. Rep. 706; 28 C.J. S., Domicile, § 12, p. 29; 17 Am.Jur., Domicil, Sec. 74.

"The rule is settled that a student who goes to a college town with the intention of remaining there simply as a student, and only until his education is completed, and who does not change his intention does not acquire a domicil there." 17 Am.Jur., Domicil, Sec. 74. See also Annotation 37 A.L.R. 138.

If we should hold that the term "resident" as used in Rule 5, means that a person is a resident of the place where he has his actual place of abode, it would mean that a young man born, raised and domiciled in North Carolina, who went to Charlottesville, Virginia, with the intention of remaining there as a student in the Law School of the University of Virginia, and only until his education was completed, and who does not change his intention, upon his graduation in June could not take the examination to practise law in North Carolina the following August. Such a narrow construction is not consistent with the purpose of Rule 5. In our opinion, the term "resident" as used in Rule 5 means that "residence" is synonymous with "domicile."

One may be a resident of one state, although having a domicile in another. Wheeler v. Cobb, 75 N.C. 21; Sheffield v. Walker, 231 N.C. 556, 58 S.E.2d 356; Penfield v. Chesapeake, O. & S. W. R. Co., 134 U.S. 351, 10 S. Ct. 566, 33 L. Ed. 940; 17 Am.Jur., Domicil, p. 594.

The burden of showing that he had the qualifications to comply with the requirements of Rule 5 rests upon the plaintiff. In re Farmer (Applicants for Licenses) 191 N.C. 235, 131 S.E. 661; Spears v. State Bar, 211 Cal. 183, 294 P. 697, 72 A.L.R. 923 and Annotation; Rosencranz v. Tidrington, 193 Ind. 472, 141 N.E. 58, 28 A.L.R. 1136 and Annotation; 7 C.J.S., Attorney and Client, § 11, p. 717.

If the proof offered by the plaintiff failed to satisfy the defendant Board of Law Examiners that he had the qualifications required by Rule 5, it was their duty to deny his application to take the examination in August 1953. Spears v. State Bar, supra.

In our opinion, there is sufficient competent evidence to support the detailed findings of fact made by the defendant Board of Law Examiners that the plaintiff has not been for the twelve months next preceding the filing of his application a citizen and resident of North Carolina, as required by Rule 5. Although one member of the defendant Board during the hearing stated that he considered residence to mean actual residence in North Carolina, it seems clear that the orders of the defendant Board of Law Examiners, acting as a Board, considered residence as used in Rule 5 to be synonymous with domicile, for otherwise they would not have found that during the years 1951 and 1952 the plaintiff filed no State income tax return, and for the years 1951, 1952 and 1953 paid no poll tax. It is significant that the plaintiff offered no evidence that he ever registered to vote or voted in North Carolina. The findings of fact made by the defendant Board amply sustain the Board's conclusion that the plaintiff has not met the requirements of Rule 5, and their orders denying his application to take the 1953 examination. The Record is bare of anything tending to show that the findings and rulings of the defendant Board of Law Examiners are arbitrary or capricious, or that the same are erroneous and contrary to law, as asserted by the plaintiff. The Record shows that the plaintiff and his attorney were granted hearings before the defendant Board on 25 July and 3 August 1953.

The plaintiff in his brief contends that the action of the defendant Board of denied him due process of law and the equal protection of the law in violation of the 14th Amendment to the U. S. Constitution. Even if that question were presented for decision, the Supreme Court of the United States in Bradwell v. Illinois, 16 Wall. 130, 83 U.S. 130, 21 L. Ed. 442 (quoted with approval in Re Lockwood, 154 U.S. 116, 14 S. Ct. 1082, 38 L. Ed. 929) held that the right to practise law in the State Courts is not a privilege or immunity of a citizen of the United States within the meaning of the first section of the 14th Amendment of the Constitution of the United States. See interesting article "Myra Bradwell: First Woman Lawyer." 39 ABA Journal 1080 (1953).

The plaintiff contends in his brief that the action of the defendant Board Law Examiners violated his rights under art. I, Sec. 17, of the North Carolina Constitution. Even if that question were presented for our decision, we know of no rights of plaintiff given under that part of our Constitution or any other part that have been violated; and plaintiff's counsel has cited us no case in our Reports to support his assertion.

In the former opinion in this case, 239 N.C. 180, 79 S.E.2d 757, 764, we said: "In this connection the Court will not review or reverse the exercise of discretionary power by an administrative agency except upon a showing of capricious, unreasonable or arbitrary action, or disregard of law." This statement of the law is in accord with the authorities elsewhere. 7 C.J.S., Attorney and Client, § 12, p. 719; Spears v. State Bar, supra; 42 Am.Jur., Public Administrative Law, Sec. 209 et seq., where hundreds of cases of the U. S. and State Courts are cited.

In the former opinion we stated that plaintiff's complaint, liberally interpreted, seems to allege that the Board of Law Examiners acted under a misapprehension of what is in law "residence" within the purview of Rule 5. On the former appeal the record evidence of plaintiff's application, with supporting papers, to take the examination, and the evidence before the Board of Law Examiners was not before us. All that evidence is now before us on this appeal.

From what we have said above, it is our opinion that the Board "acted in the true light of the meaning of the term resident," and did not act under any misapprehension as to its meaning.

It may not be amiss to add that by virtue of Ch. 1012, Session Laws 1953, that in January 1954 Rule 20 in respect to Appeals, was added to the Rules and Regulations of the North Carolina State Bar. This rule has been published in the Advance Sheets of the Supreme Court, Vol. 239, No. II, and will be published in 239 N.C.

The General Assembly of North Carolina has entrusted to the Board of Law Examiners of the State of North Carolina by statutory enactment the duty of examining applicants and providing rules and regulations for admission to the Bar. G.S.N.C. § 84-24.

The findings of fact made by the Board of Law Examiners supported by the evidence are conclusive upon us as a reviewing Court, and are not within the scope of ourreviewing powers. 42 Am. Jur., Sec. 211, where great numbers of cases from the Federal and State Courts are cited. The fact that a statute provides for the judicial review of administrative decisions makes it evident that such decisions are conclusive as to properly supported findings of fact. Social Security Bd. v. Nierotko, 327 U.S. 358, 66 S. Ct. 637, 90 L. Ed. 718.

The conclusiveness of findings of fact by an administrative agency is not affected by the fact a minority of its members disagreed. Baltimore & O. R. Co. v. U. S., 298 U.S. 349, 56 S. Ct. 797, 80 L. Ed. 1209; Interstate Commerce Commission v. Delaware, L. & W. R. Co., 220 U.S. 235, 31 S. Ct. 392, 55 L. Ed. 448.

This Court cannot substitute its judgment for that of the Board of Law Examiners in making findings of fact, and when the evidence warrants the conclusions of the Board of Law Examiners, we cannot review. National Labor Relations Board v. Virginia E. & P. Co., 314 U.S. 469, 62 S. Ct. 344, 86 L. Ed. 348; U. S. v. New River Co., 265 U.S. 533, 44 S. Ct. 610, 68 L. Ed. 1165; 42 Am.Jur., Public Administrative Law, pp. 632-3.

Quaere: Can an examination given under compulsion of a void order or orders have any possible life or virtue?

It is ordered that the judgment of the lower court be

Affirmed.