In Re Parker , 209 N.C. 693 ( 1936 )

Stacy, C. J.

Tbe plea to tbe jurisdiction brings in question tbe power and authority of tbe Council of tbe North Carolina State Bar to disbar tbe respondent, and to take from him bis license and right to practice law in this State.

Tbe basis of respondent’s challenge is fourfold:

1. It is pointed out that by tbe express terms of tbe statute, cb. 210, Public Laws 1933, Tbe North Carolina State Bar is created “an agency of tbe State of North Carolina,” with its government vested in a “Council” of 20 members, one from each judicial district, yet “neither a councillor nor any officer of tbe Council, or of Tbe North Carolina State Bar, shall be deemed as such to be a public officer as that phrase is used in tbe Constitution and laws of the State of North Carolina.” This last limitation, it is contended, deprives tbe “Council” of any judicial or quasi-judicial powers. Ex parte Schenck, 65 N. C., 353; S. v. Johnson, 171 N. C., 799, 88 S. E., 437; S. v. Kiker, 261 Pac. (N. Mex.), 816.

2. It is also advanced by tbe respondent that tbe act contains an unwarranted delegation of legislative powers over tbe subject of discipline, disbarment, and restoration of attorneys practicing law in tbe State. Provision Co. v. Daves, 190 N. C., 7, 128 S. E., 593.

3. It is next suggested that tbe right of tidal by jury, vouchsafed in tbe Bill of Eights, sec. 19, is denied in disbarment proceedings. Ex parte Thompson, 152 So. (Ala.), 229. True, an appeal may be taken from any judgment of suspension or disbarment “to tbe Superior Court judge regularly bolding tbe courts of tbe county ... on tbe record made before tbe Council,” and “upon appeal to tbe judge of tbe Superior Court, tbe accused shall have tbe right to have bis cause beard by a jury,” but it is further provided that in bearings before tbe Council (or Committee), “and in all appeals the procedure shall conform as near as may be to tbe procedure now provided by law for bearings upon tbe report of referees in references by consent.”

It is well settled that, in consent references, the parties waive tbe right to have any of tbe issues of fact passed upon by a jury. C. S., 572; Carr v. Askew, 94 N. C., 194; Green v. Castlebury, 70 N. C., 20. Compare 3 C. S., 6618; Board of Medical Examiners v. Gardner, 201 N. C., 123, 159 S. E., 8; S. v. Carroll, 194 N. C., 37, 138 S. E., 339.

4. Finally, the respondent says his right of appeal to the Supreme Court is left in doubt by the statute: “From the decision of the Superior Court judge hearing the appeal, or the jury, the Council (or Committee) and the accused attorney shall each have the right of appeal to the Supreme Court of North Carolina.” Appeals to the Supreme Court are taken only from the Superior Court. Rhyne v. Lipscombe, 122 N. C., 650, 29 S. E., 57.

It must be conceded that the plea to the jurisdiction presents a grave and serious constitutional question. However, it is not after the manner of appellate courts to pass upon constitutional questions, even when properly presented, if there is also present some other ground upon which the case may be made to turn. Newman v. Comrs., 208 N. C., 675; Wood v. Braswell, 192 N. C., 588, 135 S. E., 529. “It is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case” — Mr. Justice Peckham in Burton v. U. S., 196 U. S., 283. The rule is, that if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of lesser moment, the latter alone will be decided. Siler v. L. & N. R. R., 213 U. S., 175; Light v. U. S., 220 U. S., 523.

An avenue of escape from the constitutional question is afforded by the theory upon which the ease was predicated and tried. The proceeding rests upon the record in “Langdon, Admr., v. Parker,” heard at the March Term, 1933, Johnston Superior Court, which resulted in verdict and judgment against the respondent, and his surety, in his capacity as executor. Indeed, in no other capacity would his surety have been liable.

In the present proceeding, upon the same record, it is sought to hold the respondent liable for breach of trust in his capacity as an attorney. The two verdicts are not alike. Not only is this so, but it also appears that all the matters and things complained of took place before the enactment of ch. 210, Public Laws 1933, which eo nomine repeals the prior subsisting statutes on the subject. For history of prior legislation, see S. v. Johnson, supra. The verdict and findings in the instant proceeding are not supported by the record. Respondent’s motion for a directed verdict should have been allowed, and his exception to the refusal of the “Council” to grant his motion for judgment as of nonsuit should have been sustained.

The other matters, sought to be raised before the judge of the Superior Court were either not determined or continued without prejudice. In re Stiers, 204 N. C., 48, 167 S. E., 382; Bar Association v. Strickland, 200 N. C., 630, 156 S. E., 110. They are not now before us. Nor are we presently called upon to express any opinion upon their merits. In re Shattuck, 279 Pac. (Cal.), 998. On the hearing, the case was limited to a narrow compass. An appeal ex necessitate follows the theory of the trial. Coral Gables v. Ayres, 208 N. C., 426; Weil v. Herring, 207 N. C., 6, 175 S. E., 836; Hargett v. Lee, 206 N. C., 536, 174 S. E., 498; Holland v. Dulin, 206 N. C., 211, 173 S. E., 310.

The case then comes to a single question: Shall the respondent he disbarred by the statutory method? The answer is: Not on this record.

Reversed.