IN THE MATTER OF ARTHUR A. PLATZ, ATTORNEY AT LAW.

No. 3299

SUPREME COURT OF NEVADA

60 Nev. 296; 108 P.2d 858;

December 31, 1940, Decided

PRIOR HISTORY:

[***1] ORIGINAL PROCEEDING in the matter of the petitionof Arthur A. Platz, attorney at law, to review the recommendationof the Board of Governors of the State Bar of Nevada that thepetitioner be suspended until further order of the Supreme Court,that his name be stricken from roll of attorneys of the StateBar and from the roll of members of the State Bar, and that hebe prohibited from practice of law during period of his suspension.Order in accordance with opinion suspending petitioner for periodof two months.

DISPOSITION:

Petitioner suspended.

HEADNOTES:

1. ATTORNEY AND CLIENT.

The state bar was not without jurisdiction of proceedings forsuspension of attorney because of fact that the bar was not acourt and could not exercise judicial functions, in view of factthat any decision of the board of governors of the state bar wouldbe merely recommendatory and the only orders which would haveeffect of disbarment or suspension would be the final orders ofthe supreme court. Comp. Laws, secs. 540 et seq., 565.

2. ATTORNEY AND CLIENT--CONSTITUTIONAL LAW.

The statute providing for disbarment proceedings to be broughtbefore the board of governors of the state bar is not violativeof constitutional provision relating to distribution of governmentalpowers, in view of fact that the statute does not invest the boardwith judicial powers and any decision of the board is merely recommendatoryin character and the orders which effectuate disbarment or suspensionare the final orders of the supreme court. Comp. Laws, 565; Const.art. 3, sec. 1.

3. ATTORNEY AND CLIENT--CONSTITUTIONAL LAW.

The state bar act providing for disbarment of attorneys inproceedings before the board of governors of the state bar, thedecision of which is reviewable by the supreme court, is not voidas depriving attorney of property without "due process oflaw." Comp. Laws, sec. 565.

4. ATTORNEY AND CLIENT.

The supreme court had power to order suspension of attorneyfor failure to pay dues for membership in the state bar. Comp.Laws, sec. 540 et seq.

5. COURTS.

An opinion of the supreme court of California construing sectionsof a California statute which were identical to sections of asimilar Nevada statute was entitled to great weight in constructionby the supreme court of Nevada of the sections in the Nevada statute.Comp. Laws, secs. 585, 586.

6. ATTORNEY AND CLIENT.

The effect of statutes requiring suspension of attorneys frommembership in state bar for nonpayment of fees, and providingthat only active members of the state bar may practice law, isto require suspension from practice of law of a member of thestate bar who is in default in membership fees. Comp. Laws, secs.585, 586.

7. ATTORNEY AND CLIENT.

An order of the supreme court suspending attorney from membershipin the state bar because of nonpayment of membership fees suspendedthe attorney from the practice of law and rendered him subjectto disciplinary action for his filing and trying of a divorceaction during the period of suspension. Comp. Laws, secs. 585,586.

8. ATTORNEY AND CLIENT.

The statute relating to suspension of an attorney from membershipin the state bar, for failure to pay membership fees which provideswritten notice and gives reasonable time for an attorney to renewhis good standing in the state bar, is not construable as affordingan attorney a right of a hearing before he can be suspended. Comp.Laws, sec. 585.

9. CONSTITUTIONAL LAW.

Where attorney, who was delinquent in membership fees in thestate bar, received notice concerning delinquency and notice oforder of the supreme court suspending him from membership in thestate bar, the supreme court's order was not invalid on groundthat it was made without notice and therefore denied the attorney"due process of law," since the attorney had no statutoryright to a hearing. Comp. Laws, sec. 585.

10. ATTORNEY AND CLIENT.

The state bar has right under "police power" to collectstate bar membership dues from attorneys. Comp. Laws, sec. 540et seq.

11. STATES--STATUTES.

Under the constitution, the governor is invested exclusivelywith power to determine what occasion shall warrant conveningof legislature in special session and to designate what legislativebusiness shall be transacted thereat. Const. art. 5, sec. 9.

12. STATUTES.

Under constitutional provision authorizing governor on extraordinaryoccasions to convene legislature for special session, and providingthat legislature in such case shall transact no business exceptthat for which it is specially convened or "such other legislativebusiness as the governor may call to the attention of the legislature,"the quoted words were used in their natural and ordinary senseand proposed legislation that is not of an urgent nature may becalled to the attention of the legislature and transacted at specialsession. Const. art. 5, sec. 9.

13. CONSTITUTIONAL LAW.

The presumption is always in favor of constitutionality ofa statute.

14. STATUTES.

Any piece of legislation should be held within the call ormessage of the governor to the legislature in special sessionif it can be done by any reasonable construction. Const. art.5, sec. 9.

15. STATUTES.

The language of constitutional provision authorizing governorto call extra sessions of the legislature must be strictly construedin favor of the power of the legislature to enact legislationpursuant to the constitutional authority. Const. art. 5, sec.9.

16. STATUTES.

The state bar act, which was not included within the legislativebusiness for which the legislature which enacted it was convenedin special session, but which was called to the attention of thelegislature by the governor in a supplemental message, was notvoid on ground that it was not of an urgent nature and of sucha type as to admit of no delay. Comp. Laws, sec. 540 et seq.;Const. art. 5, sec. 9.

17. STATUTES.

Where the governor called to attention of special session ofthe legislature proposed state bar act, which was subsequentlypassed by such legislature, the alleged fact that the governordid not show such interest in the matter as to urge the passageof legislation and fact that the act did not fall within the sphereof legislation that was circumscribed by the original executivemessage calling the legislature into special session did not invalidatethe act. Comp. Laws, sec. 540 et seq.; Const. art. 5, sec. 9.

18. ATTORNEY AND CLIENT.

The sections of the state bar act relating to creation andmembership of the state bar, to membership fees, to requirementthat only active members practice law, and to unlawful practice,are not unconstitutional on ground that they are mandatory andcoercive and consequently deprive attorneys of vested rights andprivileges in the practice of law. Comp. Laws, secs. 541-547,581, 582, 584, 586, 588.

19. ATTORNEY AND CLIENT.

The legal profession is a proper subject of legislative regulationand control.

20. STATUTES.

The sections of the state bar act relating to creation andmembership of the state bar, to membership fees, to requirementthat only active members practice law, and to unlawful practice,are not unconstitutional on ground that they are not uniform andequal as to the classes affected thereby. Comp. Laws, secs. 541-547,581, 582, 584, 586, 588.

21. ATTORNEY AND CLIENT--CONSTITUTIONAL LAW.

The sections of the state bar act relating to creation andmembership of the state bar, to membership fees, to requirementthat only active members practice law, and to unlawful practice,are not void on ground that they operate as a bill of attainder.Comp. Laws, secs. 541-547, 581, 582, 584, 586, 588.

22. ATTORNEY AND CLIENT.

Where attorney filed and tried divorce action while he wassuspended from membership in state bar for failure to pay membershipfees, but subsequently he paid the fees and was reinstated, andthe board of governors of the state bar recommended suspensionof attorney because of his unlawful practice of law but did notrecommend definite period of suspension, the attorney, who hadbeen under cloud of suspension proceedings for some time, wassuspended from membership in the state bar for period of two months,and, until reinstated by order of the supreme court, his licenseto practice law was revoked and he was enjoined from practicinguntil he should be reinstated. Comp. Laws, secs. 565, 585, 586.

COUNSEL:

Arthur A. Platz, pro se, and D. W. Priest, for Petitioner.

Alan Bible, for State Bar of Nevada.

JUDGES:

DUCKER, J.

OPINIONBY:

DUCKER

OPINION:

[*300] [**860] OPINION

By the Court, DUCKER, J.:

This is a proceeding to review the action of the board of governorsof the state bar of Nevada. Petitioner was an attorney at lawlicensed to practice law in the courts of this state when thestate bar act, Comp. Laws, sec. 540 et seq., went into effect.By virtue of the provisions thereof he became a member and fora time after its organization paid dues as an active member. Hebecame delinquent in the payment of dues, and on the 18th dayof September [***2] 1937, by an order of the supreme court,was suspended from membership in the state bar for failure topay the same. He paid these dues and on March 29, 1939, was dulyreinstated by order of the court. During his suspension, on October18, 1938, he filed and tried a divorce action in the first judicialdistrict court of the state of Nevada, in and for Storey County.On this account the local administrative committee of the properdistrict took action against him for a violation of section 47of the state bar act. Petitioner filed an answer to the noticeto show cause and appeared before the committee. In his answerhe admitted, among other things, his failure to pay dues, hissuspension therefor by order of the supreme court, and his conductin filing and trying the divorce action during the time of hissuspension. In his answer he questioned [*301] the jurisdictionof the state bar and also set up matters in extenuation. Aftera full hearing the local administrative committee concluded thathis conduct in reference to the divorce action was in violationof said section and recommended that the board of governors institutethe proper proceedings for the [**861] suspension of [***3]petitioner for six months, or for his punishment for contemptin practicing law in violation of the court's order and in violationof said section. At a meeting of the board of governors held onNovember 18, 1939, petitioner appeared and was heard orally. Theboard of governors concluded that petitioner's said conduct violatedsaid section 47 of the state bar act of Nevada, and recommendedthat he be suspended until the further order of this court; thathis name be stricken from the roll of attorneys of the state barof Nevada and from the roll of members of the state bar of Nevada;that he be prohibited from the practice of law during the periodof his suspension. This proceeding is before us by his petitionfor review.

It is conceded by petitioner that no questions of fact areinvolved. He bases his defense upon issues of law.

1. Petitioner raises many questions which have beenelaborately argued in briefs and orally. Some of them have beenforeclosed by decisions of this court, such as the contentionthat the state bar had no jurisdiction to take the proceedingsagainst him because it is not a court and cannot exercise judicialfunctions. See In re Scott, 53 Nev. 24, 292 P. 291; [***4]State ex rel. McCloskey v. Greathouse, 55 Nev. 409, 36P.2d 357; Haviland v. Foley et al., 55 Nev. 455, 39 P.2d198.

2. In the former case we held on the authority of Inre Shattuck, 208 Cal. 6, 279 P. 998, construing section 26of the state bar act of California, identical in language of thatof section 26 of our bar act, that any decision which the boardof bar governors may be empowered to make in a proceeding pendingbefore it is merely recommendatory in character, and the only[*302] orders which have the effect of disbarment or suspensionof a person are the final orders of the supreme court, and thatthe section does not violate article 3, section 1, of the constitutionrelative to the distribution of governmental powers, as the statutedoes not invest the board with judicial powers. The subsequentdecisions of this court cited above recognized and affirmed theholding in Re Scott, supra. We find nothing in the argumentof petitioner or his counsel to induce us to reexamine these cases,or the case of In re Shattuck, supra. In addition we citeBrydonjack v. State Bar, 208 Cal. 439, 281 P. 1018, 66 A. L.R. 1507. [***5] See State Bar v. McGhee, 148 Okla.219, 298 P. 580.

3. The same authorities are conclusive against the contentionthat the power to discipline, suspend or disbar attorneys fromthe practice of the law has been unlawfully conferred upon thestate bar contrary to article 3, section 1 of the state constitution.No such power is conferred or could be conferred. It rests withthe supreme court alone, as has been repeatedly held by this andother courts. The contention that the state bar act is unconstitutionalin that it deprives petitioner of a valuable property right withoutdue process of law, may be similarly disposed of. In re Scott,supra; In re Petersen, 208 Cal. 42, 280 P. 124.

In the former case we held, in reply to the contention thatthe state bar act was unconstitutional in that it deprived thepetitioner of his property without due process: "But, iffor the purpose of the State Bar Act, the right to practice lawis to be regarded as a property right, the statute meets everyrequirement of the constitution. Provision is made for a fulland complete hearing of all complaints lodged against a memberof the bar, and for review before [***6] the Board of Governors,coupled with a review by the Supreme Court. The facts and thelaw both being subject to review and final decision by the supremecourt, we do not consider that the petitioner was denied due processof law." [ 53 Nev. 24, [*303] 292 P. 291,295.] Citing In re Petersen, supra; In re Edwards,45 Idaho 676, 266 P. 665; In re Bruen, 102 Wash. 472, 172P. 1152; McVicar v. State Board of Law Examiners, D. C.,6 F.2d 33, 35. In Re Petersen, supra [280 P. 125],the court said: "By section 26 of the State Bar Act *** thepower of disbarment rests finally and solely with this court.*** Nor does a proceeding under the State Bar Act deprive anyone of property or right without due process of law, since noticeand hearing are provided for, and a hearing is given in the courtof last resort."

Petitioner contends that the notice to show cause upon whichthe proceedings before the local administrative committee wasbased does not state facts sufficient to constitute an offenseunder the laws of Nevada, which the state bar could have jurisdictionand power to determine. His first point [***7] in thisregard is based on an [**862] assumption that he committedno offense rendering him liable to disciplinary action in filingand trying the divorce case because the order of the supreme courtsuspending him from membership in the state bar did not carrywith it suspension from the practice of law. This position cannotbe sustained. Section 47 of the state bar act provides: "Noperson shall practice law in this state subsequent to the organizationmeeting of the state bar unless he shall be an active member thereofas hereinbefore defined."

4. By force of the supreme court's order petitionerceased to be a member of the state bar. The power of the supremecourt to make the order cannot be questioned. Petitioner thenwas not a member when he did practice law as charged, and consequentlycame within the prohibition of the section. That such would bethe effect of a valid suspension from membership was recognizedby this court in State ex rel. McCloskey v. Greathouse, supra.We held the order of suspension in that case ineffective to deprivethe intervener therein of membership because made only by thestate bar. In [*304] the course of the opinion the [***8]court said [ 55 Nev. 409, 36 P.2d 357, 358]: "Theorder of suspension made by the State Bar was never called tothe attention of this court, and consequently no order of suspensionwas made thereon or at all in this court. The action of the StateBar in this respect, if effective, would amount to a suspensionof intervener's right to practice law. This would follow as ofcourse by reason of section 47 of the State Bar Act, section 586N. C. L., which reads: [Section quoted]."

Section 46 of the state bar act provides in part: "Anymember *** failing to pay any fees *** and after two months' writtennotice of his delinquency, must be suspended from membership inthe state bar."

5. As we pointed out in the case supra, sections 46and 47 of the state bar act of California are identical in languagewith the same sections of our state bar act. We further pointedout that the supreme court of California in Carpenter v. StateBar of California, 211 Cal. 358, 295 P. 23, was of the opinionthat the effect of those sections was to suspend a member in defaultin membership fees from practicing law. As these sections arethe same as the sections of the state [***9] bar act ofCalifornia, the opinion of the supreme court of that state isof great weight.

6, 7. The fact that the court in its order suspendedpetitioner from the practice of law instead of from membershipin the state bar or from both, is of no importance. Its orderwas merely its ultimate conclusion as to the effect of the sectionquoted. If such is the true effect of the sections, and we areconvinced that it is, the order of the supreme court in the instantcase suspending petitioner from membership in the state bar suspendedhim from the practice of law.

A different effect cannot be given sections 46 and 47 by thefact stressed by counsel for petitioner, that in decisions ofthe supreme courts of California and Nevada under their respectivebar acts, orders were [*305] made suspending or disbarringattorneys from the practice of law for derelictions other thanfor the nonpayment of membership fees. There is nothing in thecase of In re Pilkington, 56 Nev. 295, 49 P.2d 965, andIn re Alward, 59 Nev. 102, 86 P.2d 27, in which orderswere made suspending the accused both from membership in the statebar and from the practice of law for such [***10] otherderelictions, that supports petitioner's contention. Those casesdid not decide or intimate that suspension from membership forthe nonpayment of membership fees does not suspend from the practiceof law.

8, 9. There is no merit in the claim that the orderof the supreme court was invalid because made without notice andtherefore denied petitioner due process of law. We are satisfiedthat section 46 cannot be construed as affording a delinquentthe right of a hearing before he can be suspended. The statuteprovides written notice and gives a reasonable time thereafterfor one in default to renew his good standing in the state bar.A hearing would not be of any advantage to the delinquent, andthe statute itself preserves to him the right of reinstatement.In the instant case petitioner admits his delinquency and thathe received the statutory notice as to such delinquency. He alsoadmits that he received notice of the order of the supreme courtsuspending him from membership in the state bar, and that he didthereafter practice law. Under such circumstances the case isclearly in point with Hoodenpyl v. State Bar of Oklahoma, 178Okla. 264, 62 P.2d 980, cited [***11] by respondent.The [**863] state bar act of that state is very like thestate bar act of California. It provides an annual membershipfee of $ 5 for active members. A section corresponding to section46 of our bar act provides: "Any member, active or inactive,failing to pay any fees after the same become due, and after twomonths' written notice by registered mail of his delinquency,must be suspended from membership in The State Bar." 5 Okla.St. Ann., sec. 65.

[*306] In the course of its opinion the court said:"In this appeal, however, the accused does not claim to havepaid the annual dues; neither does he deny that he received thenotice provided by statute, nor does he deny that he engaged inthe practice of law in the interim between the date of his suspensionand his application for and reinstatement, but bases his contentionupon highly technical grounds, one of which is that he had notrial or hearing before he was suspended."

In construing the section corresponding to section 46, thecourt said: "As we view it, the language of the statute isnot susceptible of the construction that a delinquent member ofthe Bar may demand and be granted a hearing before he is [***12]suspended for nonpayment of his annual dues."

We are in accord with this view.

10. Petitioner challenges the power of the state barto collect membership dues, in the exercise of police powers.The claim is not supported by any authority. All authority isto the contrary. Carpenter v. State Bar of California, supra,and cases cited therein. The court said [ 211 Cal. 358, 295P. 23, 24]: "It is true that petitioner disclaims liabilityand denies the power of the board of governors to fix or collectmembership dues or assess penalties, but he offers no argumentor authority germane to the subject. The validity of the StateBar Act as a regulatory measure under the police power has beenrepeatedly upheld by this court. When that fact is conceded, itfollows as a matter of course that the reasonable expenses necessaryto pay the costs of enforcement of the act, in furtherance ofthe purposes thereof, may be imposed upon the membership in theform of fees or dues." (Citing cases.)

The state bar act was enacted at a special session of the legislaturein January 1928. Both petitioner and his counsel assert that theact is void in its entirety because not [***13] withinthe purview of article V, section 9, of the state constitutionby which the governor is empowered to convene the legislaturein special session. [*307] The section reads: "Thegovernor may, on extraordinary occasions, convene the legislatureby proclamation, and state to both houses, when organized, thepurpose for which they have been convened, and the legislatureshall transact no legislative business except that for which theywere especially convened, or such other legislative business asthe governor may call to the attention of the legislature whilein session."

A call for enactment of a state bar act was not included withinthe legislative business for which the legislature was convened.It was called to the attention of the legislature in a supplementalmessage, which was as follows: "I have been asked to recommendthe passage of laws incorporating the American Legion and theState Bar Association, and bills for these purposes will be introduced."

11. It is contended by counsel for petitioner that theact was not within the scope of other legislative business whichthe governor may call to the attention of the legislature in specialsession for these reasons, [***14] (1) the act was notof an urgent nature and of such a type as to admit of no delay;(2) the governor in his message did not show such an interestin the matter as to urge the passage of legislation upon it; (3)the act did not fall within the sphere of legislation that wascircumscribed by the original executive message calling the legislatureinto special session. As to the urgency of the legislation, wethink it was to be determined solely by the governor. The sectionof the constitution invests him with extraordinary powers. Heis invested exclusively with the power to determine what occasionshall warrant the convening of the legislature in special sessionand to designate what subject of legislative business shall betransacted thereat. In re Governor's Proclamation, 19 Colo.333, 35 P. 530. The language "such other legislativebusiness as the governor may call to the attention of the legislature"is not susceptible of a construction that would negate these powers.

12. Counsel for petitioner relies on Jones v. Theall,[*308] 3 Nev. 233, to sustain his position thatonly legislation of an urgent nature may be transacted at a specialsession, [***15] and such as would admit of no delay, andquotes freely therefrom. It is true the [**864] court inthat case did state that such was the character of proposed legislationwhich would authorize the governor to invoke a special session,but it did not hold, or say, or intimate, that such must be thenature of other legislative business the governor might deem properto call to the attention of the legislature while in session.On the other hand, the court said: "The powers of the Legislatureat its special sessions are expressly and clearly limited to thetransaction of the business for which it may be convened, or suchother business as the Executive may call to its attention whilstit is in session." And again: "*** we are confirmedin the opinion that it is the purpose of the Constitution to forbidconsideration of any but such business as the Governor may deemnecessary to be transacted at such sessions * * *."

13-16. We are also of that view and presume the words"such other legislative business as the Governor may callto the attention of the Legislature" have been employed intheir natural and ordinary meaning. The general rule that thepresumption is always in favor [***16] of the constitutionalityof an act is applicable here, and any piece of legislation shouldbe held within the call or message of the governor to the legislaturein special session if it can be done by any reasonable construction.25 R. C. L. 806. The language must be strictly construed in favorof the power of the legislature to enact the legislation underit. As declared in Baldwin v. State, 21 Tex. App. 591, 3 S.W.109, 111: "Legislative power, except when the constitutionhas imposed limits upon it, is practically absolute; and, whenlimitations upon it are imposed, they are to be strictly construed,and are not to be given effect as against the general power ofthe legislature, unless such limitations clearly inhibit the actin question. Cooley, Const. Lim. 204."

[*309] 17. As to the second contention, it is sufficientthat the governor called the proposed legislation to the attentionof the legislature. It is equally so as to the third contention.Legislation enacted under the latter clause of the section ofthe constitution need not be the same general nature or have anyrelation to the type of legislation for which the legislaturewas especially convened. [***17] State v. Dishman, 64Mont. 530, 210 P. 604. The language is too plain and too comprehensivein its scope, to be restricted by the qualification contendedfor. The doctrine of ejusdem generis, elaborately discussed bycounsel in that connection, has no application.

18, 19. Petitioner contends that sections 2, 3, 4, 5,6, 7, 8, 42, 43, 45, 47, and 49 of the state bar act are unconstitutional.The first contention in this respect is that they are mandatoryand coercive and consequently deprive petitioner of his vestedrights and privileges in the practice of law. This contentionwas decided adversely to petitioner's view in Re Scott, supra,and we will not reiterate or amplify the ruling of that case.Suffice it to say that the legal profession has long been helda proper subject of legislative regulation and control. Carpenterv. State Bar, supra; In re Gibson, 35 N. M. 550, 4 P.2d643, and Kelley v. State Bar of Oklahoma, 148 Okla. 282,298 P. 623, are likewise referred to as ruling on this subject.

20, 21. The sections referred to are not unconstitutionalas claimed, because they are not uniform and equal [***18]as to the classes affected thereby. See State Bar v. SuperiorCourt, 207 Cal. 323, 278 P. 432; In re Scott, supra.The contention that these sections deprive petitioner of a vestedproperty right has already been disposed of. There is no meritin the contention that they operate as a bill of attainder. Kelleyv. State Bar of Oklahoma, supra.

Petitioner makes other contentions, but they are so obviouslywithout merit as to require no special mention.

22. The board of governors recommended no definite [*310]period of suspension and we are inclined to be lenient inour judgment. Petitioner has paid his dues and has been reinstatedto the practice of the law. He has been under the cloud of theseproceedings for some time and we feel that suspension for a shorttime will be sufficient punishment.

It is therefore ordered that petitioner be and he is herebysuspended from membership in the state bar of Nevada for a periodof two months, and until he be reinstated by order of this court;that his license to practice law in this state be and is herebyrevoked; and that he be enjoined from practicing law, directlyor indirectly, until he [***19] is ordered reinstated bythis court.