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In re Lewkowitz

Supreme Court of Arizona

June 29, 1950

In re LEWKOWITZ et al

Order heretofore entered granting respondents' motions to quash and dismiss vacated and ordered that motions to vacate, quash and dismiss in order to show cause in the matter be denied.

Alfred C. Lockwood, of Phoenix, for State Bar of Arizona.

Fred C. Struckmeyer, of Phoenix, Louis B. Whitney, of Phoenix, for respondent Herman Lewkowitz.

Mark Wilmer, of Phoenix, for respondent Raymond R. Wein.

Fred A. Ironside, Jr., of Phoenix, of counsel.

Wm. H. Westover, of Yuma, amicus curiae.

Udall, Justice. La Prade, C. J., and Stanford and De Concini, JJ., concur. Phelps, Justice (dissenting).


Udall, Justice.

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[70 Ariz. 327] This court on January 16, 1950, in the case of In re Lewkowitz, 69 Ariz. 347, 213 P.2d 690, by unanimous decision granted motions to vacate, quash and dismiss an order to show cause directed against respondents. The basis for the decision was that the title to the State Bar Act, Laws 1933, ch. 66, -- now appearing as Art. 3, Ch. 32, A.C.A.1939, under which the disciplinary proceedings against respondents were brought, violated the constitutional provision, Art. 4, pt. 2, sec. 13, requiring that every act shall embrace but one subject and matters properly connected therewith, and that such subject shall be expressed in the title.

The State Bar of Arizona timely filed a motion for rehearing, the gist of which was [70 Ariz. 328] "that the court in its opinion laid down some eight rules of statutory construction as definitely established and then reached a conclusion in regard to the sufficiency of the title of the State Bar Act which is non sequitur as to those premises and inconsistent therewith." Because of the far reaching effect of its decision, and being somewhat in doubt as to its correctness, the motion for rehearing was granted. The matter was again thoroughly briefed by counsel for the respective parties, as well as by amicus curiae, and the case was then orally argued before the court. The judges, after each making a painstaking review of the entire matter, are divided in their opinions as to the correctness of our former holding, the majority being now convinced that the motions to quash and dismiss were improvidently entered.

To avoid repetition we adopt, without reiterating, the first portion of the original opinion down to and including the eight rules of statutory construction set forth therein save and except as to rule No. 7.

Before discussing the precise objections raised to the sufficiency of the title to the act in question or considering the other technical objections to the preliminary steps so far taken in these disciplinary proceedings, we deem it advisable to set forth briefly a recital of the history and purpose of the national movement to integrate the

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bar. Our source material, in the main, is taken from the Journals of the American Judicature Society, which is recognized as an authority on the matter as it took the lead in the movement for integration. The word "integration" is defined as: "Act or process of making whole or entire". Websters New International Dictionary, 2d Edition.

The voluntary state bar organizations in existence proved to be impotent to carry on the high purposes and noble aspirations of the legal profession for the simple reason that they were composed only of a small minority of those eligible to its membership. This weakness was readily apparent to the leaders in the legal profession and a program was initiated shortly after the turn of the century to secure the adoption of the principle of a unified bar as a means of correcting the ills existing within the profession. It was a long hard battle that involved educating both the laity and the individual lawyer to the necessity for a virile state bar, one that could speak authoritatively, as Charles Evans Hughes expressed it with a "commanding voice". Such a body if it was to have alike the confidence and respect of the profession and the laity, necessarily had to be self-governing, all-inclusive and unified. Partial victory has crowned these efforts, for since the year 1920, integration had been accomplished in twenty-one states, either (a) by legislative enactment such as occurred in Arizona with the adoption of the State Bar Act, (b) by rule of court, without statutory authority, in the exercise of its inherent power, or (c) by enactment of a statute conferring [70 Ariz. 329] authority upon the highest court of the State to integrate the bar.

It is a matter of which we take judicial notice that here in Arizona, prior to the passage in the year 1933 of the act in question, considerable spade work was done looking toward integrating the bar. The matter was perennially discussed at meetings of the old bar association with attendant publicity. A measure to accomplish this purpose was introduced but failed of passage in the Tenth Legislature (1931). The title to that proposed act read: "An Act to Create a Public Corporation to Be Known as 'The State Bar of Arizona.' To Provide for Its Organization, Government, Membership, and Powers, to Regulate the Practice of Law and Provide Penalties for Violation of Said Act", and this identical title appeared on the similar measure when introduced in the Eleventh Legislature (1933). Why the title was subsequently changed to read as it now appears in the enacted measure can only be a matter of conjecture.

It is highly significant that without exception where the integration of the bar has been accomplished, irrespective of which route was followed in accomplishing that purpose, one of the principal provisions, found either in the rules or the act, provided a method for the admission and discipline of members of the bar. It should also be noted that the power to admit to practice or to disbar is not made absolute in any bar act. The bar is given power to "determine the qualifications for admission to practice", A.C.A.1939, § 32-327, and to conduct examinations, but the Supreme Court continues, as it has always done, to have the ultimate say as to who shall be admitted to practice law. The same is true of disbarment and lesser disciplinary actions. The integrated bar, acting through its grievance committees, conducts hearings, summarily dismisses charges found to be without merit, and certifies up to the board of governors the record in those cases in which it deems the evidence justifies further action. The board of governors then conducts further proceedings before such matter is brought before the Supreme Court for final hearing and determination. In the final analysis this court becomes the ultimate triers of the issues of fact as well as of law. In re Sweeney, 51 Ariz. 9, 73 P.2d 1349; In re Greer, 52 Ariz. 385, 81 P.2d 96.

The title in question, reading, "An act relating to the state bar, and creating a public corporation to be known as 'The State Bar of Arizona'", when read in the light of its historical purpose takes on added significance. True, the title is brief and concise but the question posed is this: Is it sufficiently broad to permit in the body of the act provisions which, in aid of the

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powers and duties of said incorporated bar, states a method for the discipline of members of the bar? In other words, is this matter of discipline germane to the subject expressed in the title? Germane is defined [70 Ariz. 330] as "closely allied, appropriate, relevant". Webster's International Dictionary, Second Edition. This excellent statement appears in 23 Cal.Jur. 649: "* * * A provision which conduces to the object of the act, or which is auxiliary to and promotive to its main purpose, or has a necessary and natural connection therewith is germane, * * *." Also see Evans v. Superior Court, 215 Cal. 58, 62, 8 P.2d 467; Dolese v. Pierce, 124 Ill. 140, 16 N.E. 218, 220.

We agree that the subject of the title is "an act relating to the state bar", which term we construe to be synonymous with "an act relating to attorneys at law", see In re Miller, 29 Ariz. 582, 244 P. 376, and that the subsequent clause in said title reading, "and creating a public corporation to be known as the 'State Bar of Arizona'", is a limitation upon the first part of the title. State v. Pelosi, 68 Ariz. 51, 199 P.2d 125; Valley Nat. Bank of Phoenix v. Glover, 62 Ariz. 538, 159 P.2d 292. Hence it follows that the scope of legislation in the body of the act is limited to the same extent as the title, i. e., to the incorporation of the State Bar of Arizona. Statutory rule of construction numbered (3) set forth in the original opinion provides: "That any provision of the act directly or indirectly relating to the subject expressed in the title and having a natural connection therewith, and not foreign thereto, should be held to be embraced in it." (Citing cases.) [213 P.2d 690, 692.]

The title to the Arizona State Bar Act is probably one of the shortest and broadest in its terms of any such acts. However the following titles of similar acts from other states have been held sufficient: "An Act to create [No.] 256.31 of the statutes, providing for the organization and government of the state bar of Wisconsin." Re ...

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