concluding that the State Bar’s Board of Commissioners was created by the Alabama legislature “as an arm to” the Alabama Supreme Court, subject to its review and approval
How later courts described this case
- concluding that the State Bar’s Board of Commissioners was created by the Alabama legislature “as an arm to” the Alabama Supreme Court, subject to its review and approval
- canvassing state and federal eases in considering the question whether the regulation of admission to practice law is a “judicial function,” and answering in the affirmative
- attorney general filed an action in the Montgomery Circuit Court seeking, in part, a judgment declaring that a Bar rule was unconstitutional
Written by the judges who cited it.
The opinion
MADDOX, Justice
(concurring specially.)
I concur. specifically in that portion of the majority opinion which holds that this Court has the inherent power to govern admission to the Bar.
By concurring specially, however, I do not wish to be understood as saying that I believe that the policy expressed by the legislature of allowing an applicant to take the examination more than three times is necessarily unreasonable. The applicants here, however, do bottom their right to take the examination the fourth time solely on the provisions of Act 750, and the Act does, in fact, conflict with the Bar rule. Consequently, it is my opinion that this Court must ultimately determine whether the Bar rule, or its application, denies an applicant equal protection of the laws or due process.
If the majority opinion denied the applicants the right to continue to show themselves qualified to practice law, I would have to disagree with that conclusion. But since the applicants are given an opportunity to apply again to take the examination, the way is still open for them to test not only the rule, but also its application in their individual cases, and it is my own personal opinion that if they are rejected, they may then petition this Court to review the matter in the same manner in which we review disciplinary proceedings. Cf. Ex parte Weinberg, 281 Ala. 200 , 201 So.2d 38 (1967).
Another reason why I concur specially is that I believe that the new Judicial Article, (Amendment 328, Constitution of Alabama, 1901, carried as Article VI in Vol. I of Michie’s Code of Alabama 1940, Recompiled 1958, 1973 Cumulative Supplement) is controlling. In other words, the new Judicial Article restructured the court system and redistributed the “judicial power” of this state, and I believe that this case and future cases must be governed by the Article’s provisions.
I also feel compelled to point out, gratuitously, I suppose, that I believe that these intervenors have certain inalienable rights and that one of these is the right to practice law, if they are qualified. Justice Collier, In Matter of Dorsey, 7 Porter 293, 381 (1838), discussed the free choice of a citizen to practice law if he so desires. He wrote:
“It may be again said, that there is no deprivation of life, liberty or property, *111 consequent on a refusal to take the oath. I answer, that the law itself presumes the right to practice law, a valuable right, as it confers it as a boon, on those who can, and are willing to take the oath. Can it be seriously contended, that it is not a valuable right, and as deserving of protection as property? Suppose the right to practice law, was confined to a particular class or order of men, by law, would it not be esteemed a most valuable privilege? And if the right of entering this fraternity could be purchased with money, would it not command a high price? I think there can be no doubt of it; and if so, exclusion from it must be the privation of a valuable right; as worthy of the protection of the law, as property? I think, therefore, that in this view, the law in question, is contrary to the spirit, the plain intent, and meaning of that part of the tenth section of the bill of rights, which provides, that ‘no one shall be deprived of life, liberty, or property, but by due course of law.’
“I am also of opinion, that the act in question, so far as it prescribes an ex-purgatory oath, as a condition to the practice of law in this State, (though passed with the most laudable motives,) is contrary to the very scope and design of a free government. The most arbitrary and vexatious inventions of tyranny, are those regulations of law, which interfere with the domestic concerns of society, by preventing the citizen from the pursuit of happiness in his own mode. The ‘pursuit of happiness’ is asserted in the Declaration of Independence, to be an inherent right; and is promulgated as a self-evident truth. And certainly if that expression means anything, it must include the right to select which of the various avocations or pursuits in life, a young man will engage in; his future destiny, and his value to the State, as one of its members,- demands the utmost freedom of choice; and it is, therefore, of the highest importance, in a free government, that this right of choice should not be impaired.
I agree with Justice Collier, that any law or rule must not unreasonably impair a citizen’s right to make his choice of a profession.