The opinion
JACKSON, Justice
(concurring in part and dissenting in part).
I concur in the view that injunctive relief should be denied and that prohibition should be granted.
I am of the opinion that the Legislature did not intend to leave a vacuum when it repealed its Integrated Bar Act in 1939 for unlicensed practitioners, but I do not believe we should assume the duty of writing law to control all those unlicensed businesses and occupations such as title companies, real estate brokers, automobile clubs, collection agencies, tax counsel, adjusters, banks and trust companies, accountants, architects, and bond merchants, whose activities are primarily unrelated to the administration of justice. I do agree that this court may lawfully suppress the preparation of pleadings and wills and other documents by unlicensed practitioners that are destined for consideration in the courts. I also agree that this court may direct the Oklahoma Bar Association to initiate in-junctive procedures to prevent disbarred and suspended lawyers from engaging in the practice of law, since a contrary holding would be in conflict with this court’s power to suspend and disbar. I would not authorize the Oklahoma Bar Association to file any action in a district court for the suppression of an unlicensed practitioner without the prior approval of this court.
I am well aware that most other states have held that the courts may prohibit the practice of law by unlicensed practitioners. Some have done so by statutory authorization: Connecticut by Title 51, Secs. 87 and 88; Hawaii by Rev.Sts., Vol. 7, Sec. 605-14, in pocket part, page 37, Georgia, Code of Georgia 9-402, pages 98 and 99, and 9-407 in pocket part, page 58; Illinois, Ill.Sts., Title 13, Sec. 1; Alabama, Title 46, Sec. 42; Alaska, Alaska Sts., Business and Professions, Sec. 08.08.230; Arkansas, Ark. Sts., Legal Admissions and Unauthorized Practice, Secs. 25-205 — 25-217; Arizona, Professions and Occupations, Title 32, Sec. *422 261; California, Cal.Sts., Article 7, Secs. 6125, 6126, and 6127; Idaho, Idaho Sts., Attorneys and Counselors at Law, 3-418 — 3-104; Indiana, Burns Ind.Sts., Attorneys, 4 — 7401; Kentucky, Ky.Rev.Sts.1971, Sec. 30.010, page 467; and Maine, Maine Rev. Sts.Ann., Vol. 2, Sec. 4-807, pages 263 and 264. Other courts have held that a license to practice law is in the nature of a franchise, a property right, and entitled to protection from competition by an unlicensed person. See Anno. Competitor— Illegal Acts — Injunction, 90 A.L.R.2d at page 63. Under that view any lawyer or group of lawyers would be authorized to file actions to enjoin the unlicensed competitor.
My views suggesting judicial restraint stem from early constitutional concepts. In State ex rel. Haskell, Governor v. Huston, Judge, 21 Okl. 782, 815 , 97 P. 982, 995 (on rehearing), this court said:
“ * * * Judicial legislation is not in accord with popular institutions. Everything in nature legislative, when not incidental to judicial administration, is by express organic provision denied.to the judiciary. Section 1, art. 4 (Bunn’s Ed.) § 50 [Const.].” Now Article 4, § 1, Oklahoma Constitution.
In the fifth paragraph of the syllabus in In re County Com’rs of Counties Comprising 7th Judicial District, 22 Okl. 435 , 98 P. 557 , this court held:
“This court has no authority to exercise legislative power that is neither a means appropriate nor necessary to the judicial or supervisory powers granted to it by the Constitution.”
In the second paragraph of the court’s syllabus in In re Assessment of Kansas City Southern Ry. Co., 168 Okl. 495 , 33 P.2d 772 , this court held:
“The legislative branch of government is not authorized to confer upon this court powers which are primarily legislative or administrative and not incidental to the discharge of any legitimate judicial functions except as provided by the Constitution.”
This court’s power, whether legislative or judicial, must be exercised within the limitations imposed by our Constitution. Article 2, § 2, Okl.Const., provides that “All persons have the inherent right to * * * the gains of their own industry.” In State ex rel. Short, Atty. Gen. v. Riedell, 109 Okl. 35 , 233 P. 684 , 42 A.L.R. 765 , we held:
“House Bill No. 204, Session Laws of 1917, c. 5, known as the Accountancy Act * * * in so far as it prohibits uncerti-fied accountants from holding themselves out as professional or expert accountants or auditors for compensation or engaging in the practice of that profession, is in conflict with the spirit and express provision of the Constitution and void, in this, that it abridges the right of private property, and infringes upon the right of contract in matters purely of private concern bearing no perceptible relation to the general or public welfare, and therefore tends to create a monopoly in the profession of accountancy for the benefit of certified accountants, and denies to un-certified accountants the equal protection of the laws and the enjoyment of the gains of their own industry.”
See also Whetsel, County Attorney v. Wood, 207 Okl. 193 , 248 P.2d 612 (licensing watch repairmen), and Greene v. McElroy, 360 U.S. 474 , 79 S.Ct. 1400 , 3 L.Ed.2d 1377 , (involving “liberty” and “property” concepts of the Fifth Amendment), and 36 Am. Jur.2d Franchises, § 3.
Other provisions of our Constitution suggest caution in the decisions of this court. In the Preamble it is said that we establish this Constitution in order “to promote our mutual welfare and happiness * * In Article 2, § 1 it is provided:
“All political power is inherent in the people; and government is instituted for their protection, security, and benefit, and to promote their general welfare; and they have the/right to alter or reform the same whenever the public good may require it: Provided, such change not be repugnant to the Constitution of the United States.”
*423 Since our decision in this case authorizes court action to regulate the unlicensed practitioner which could arise in connection with numerous legitimate occupations and businesses we should be guided in the de-cisional process by what is promotive of the mutual welfare and happiness of the people, whose government we serve. In this connection the decision in State Bar of Arizona v. Arizona Land Title & Trust Co., 90 Ariz. 76 , 366 P.2d 1 , and the reaction of the people one year later, reflected by the adoption of Article 26, § 1, Arizona constitution, is in point.
In Article VII of the Rules Creating and Controlling the Oklahoma Bar Association, 5, Ch. 1, App. 1 (Vol. 1, O.S.1971, page 439) provision is made for a budget committee, hearings, and review by this court. It is provided therein that “The Supreme Court shall review said proposed budget to determine if the proposed items of expenditure are within the Court’s police powers and necessary in the administration of justice.” This provision was intended to confine our use of court imposed bar dues to those activities which are necessary in the administration of justice. If actions to suppress the unlicensed practitioner are necessary in the administration of justice it is appropriate to require lawyers to finance them. However, if the actions are for the benefit of the public and not related to the administration of justice it is only fair that the public should finance the operation. On the other hand if the actions are for the benefit of lawyers and not related to the administration of justice it is only fair and proper that lawyers provide the finances outside the framework of the Oklahoma Bar Association.
In the Legislature’s Integrated Bar Act (enacted 1929 — repealed in 1939) it was provided in Sec. 46 (Sec. 4255 O.S.1931) that no person shall practice law in Oklahoma unless he is an active member of the State Bar. In Sec. 48 (Sec. 4257 O.S.1931) it was provided that any person, not an active member of the Bar, who practiced law in Oklahoma would be guilty of a misdemean- or. Opinions of this court written during that period (1929-1939) would necessarily be influenced by those provisions.
The procedure herein suggested would not leave the public entirely helpless. If an unlicensed practitioner is so incompetent as to become a public nuisance his activities may be enjoined. Kenyon v. Edmundson, 80 Okl. 3 , 193 P. 739 ; Balch v. State, 65 Okl. 146 , 164 P. 776 ; Mackey v. Aycock, 83 Okl. 175 , 201 P. 365 ; and 12 O.S.1971, § 1397. We have held that an unlicensed practitioner for hire is liable to his employer for damages caused by his negligent preparation of notes, deeds, and mortgages. Latson v. Eaton, Okl., 341 P.2d 247 .