Kelley v. State Bar of Oklahoma

This is an original proceeding in this court asking for an adjudication of the constitutionality of the act known as the State Bar Act., Sess. Laws 1929, c. 264, and asking for an order restraining the State Bar from undertaking to investigate the conduct of the petitioner, or to disbar him from the practice of law.

A brief has been filed in this case on behalf of the petitioner and in support of the petition. A demurrer has been filed to the application by the State Bar of Oklahoma on account of the insufficiency of the petition to warrant the relief asked for. The brief of the petitioner attacks the State Bar as being a private association. We hold that it is not, that it is a body created by the Legislature for the purpose of enabling this court to better carry out its functions with reference to its own officers and those that are privileged to represent litigants in the courts of this state.

Another attack is made on the act because in the attempt at regulation of the officers of the court, and those who are permitted to practice law, a membership fee is required of five ($5.00) dollars. We see nothing in the Constitution that would prohibit the Legislature, under its constitutional power and duty, from requiring a privileged class, such as licensed attorneys are, to pay a small fee, such as this is, toward the expenses of the regulation of the profession to which they belong.

The further contention is made in this brief that to allow the Board of Governors to investigate the charges made against the petitioner, and to make a recommendation to this court preparatory to his exoneration or condemnation, violates his fundamental rights under the Constitution of this state. We do not think so. The power must rest somewhere to pass upon the fitness of the petitioner in this case to be admitted to the practice of law, and also the power must rest somewhere to prohibit him from further practice. That power, as it now stands, is vested in this court, and an arm of this court is the State Bar, and when the matter comes before us, upon a recommendation, along with the proof, submitted by the Governors of the State Bar, it will be time to pass upon the matter.

The attack is made upon the organization of the State Bar, as defined in the act, upon the ground of mingling legislative, executive, and judicial functions. We do not think that the act is subject to the criticism offered.

The further attack is made that to require the plaintiff to pay the fee prescribed in the act, under the penalty of disbarment, would be a bill of attainder, and is therefore forbidden by law. We do not think that the simple requirement of a member of a class, privileged such as an attorney is in this state, that he should pay a small fee of five ($5.00) dollars a year into the treasury, for the purpose of carrying on the regulating of the profession to which he belongs, could by any means be held to be a bill of attainder.

As to whether or not the right to practice law is a property right, in the sense of it being one that entitles the holder of the license to practice a profession, we do not care to consider, as it is clear that under the police power of this state, and under the necessary power given to this court to perpetuate its existence, the petitioner's right to practice law before the courts of this state is a matter subject to regulation and inquiry.

We find nothing in the act, that is complained of by this petitioner, that would justify us in holding it unconstitutional. We have more fully considered the matters and things complained of in this case in the case of State Bar of Oklahoma v. Q.P. McGhee and Frank R. Burns, No. 21206,148 Okla. 219, 298 P. 580, and are satisfied that the act is not subject to the attacks made on it in this case.

The injunction, therefore, will be denied, and the Governors of the State Bar are directed to proceed with the inquiry, with a view of getting the evidence and making all necessary orders.

RILEY, HEFNER, CULLISON, SWINDALL, ANDREWS, and McNEILL, JJ., concur. LESTER, C. J., concurs in the conclusions. CLARK, V. C. J., dissents.