Ex Parte Ross , 196 Ga. 499 ( 1943 )

1. A judge of the superior court is neither required nor by law authorized to order issuance of a license to practice law in this State, except to persons licensed to practice law in another State or the District of Columbia, until the applicant has first stood the State bar examination and made at least seventy per cent. On such examination, and the State board of bar examiners has certified to the judge that such applicant is entitled to practice law.

2. Where the petitioner sought admission to the bar of this State, alleging that he had correctly answered all questions in a State bar examination, but that the State board of bar examiners had discriminated against him because of his African descent and had fraudulently certified to the superior court that he was not entitled to practice law in this State, but the evidence failed to show that he had in fact made the requisite grade of seventy per cent. On the examination, or that the board was guilty of any fraud or misconduct towards him, he was not entitled to the relief sought by the petition, whether or not in any event he would be entitled to admission to the bar of this State without a certificate from the State board of bar examiners.

3. The State board of bar examiners is not a quasi judicial board whose action may be reviewed by the writ of certiorari. Whether or not any complaint which the plaintiff has against that board may be determined by the writ of mandamus, the present proceeding is not a mandamus proceeding and is not an available remedy.

No. 14595. SEPTEMBER 9, 1943. STATEMENT OF FACTS BY DUCKWORTH, Justice. An ex parte written motion of George Elmer Ross, filed in the superior court of Richmond County, Georgia, states that the petitioner desires to become a member of the Georgia bar, and to that end seeks an order admitting him to practice in this State, except in the Supreme Court and the Court of Appeals. The motion asserts that the movant is of African descent, a citizen of the United States and of this State, and has resided since February 4, 1936, in Richmond County. The motion states that movant made application for permission to and did take the State bar examinations held in December, 1939, December, 1940, June, 1941, December, 1941, May, 1942, and December, 1942, and that after each of said examinations the State board of bar examiners transmitted their official certificates that movant was not entitled to a license to practice law in this State. The motion refers to the actions of the State board of bar examiners as quasi judicial judgments adverse to the movant.

It is alleged, that on December 28, 1942, the judge of the superior court requested the State board of bar examiners to keep the examination papers bearing date of December 16 and identified by the number 10, and that movant gave timely notice to the State board of his intention to apply for the writ of certiorari, that movant also requested the State board to advise him what grade he made on the examinations taken in May and December, 1942; that the board replied that under its rules the percentage or grade of those taking the bar examination was never made known, and also stated that the examination papers had been destroyed. The motion asserts that movant has been licensed to practice before the Veterans Administration and to prosecute claims against the United States Government, and that he is also entitled to practice in the district court of the United States and in the Supreme Court of the District of Columbia, and that he is a graduate of the Chicago Law School. The motion asserts, that the court should grant movant a license to practice law as prayed, for various reasons set out therein, among which are that under our law courts have inherent power to do so, and that this rule of common law is still of force in this State, and that the statutory provisions are merely guides to assist the court, but that the court is not bound thereby, and has authority to make its own rules in that connection; that in pursuance of this power the court may disregard the recommendations of the State board of bar examiners, and that the board erred in refusing to notify movant of the grade he made on the various examinations upon his request therefor, and erred in destroying movant's examination papers before he could apply for a writ of certiorari to review their quasi judgment to the effect that he was not entitled to a license to practice law; that, although he correctly answered the questions on each of the examinations referred to, the State board, of bar examiners, because of prejudice and discrimination on account of movant's race and color, certified in each case that he was not entitled to a license to practice law. The prayer was (a) "that the quasi-judicial judgments of the Georgia State board of bar examiners rendered adversely to the answers on the bar examinations submitted by your movant under dates of May 13, 1942, and December 16, 1942, may be vacated and set aside and declared void and of no effect; (b) for an order of this honorable court to be admitted to practice law in this State, except in the Supreme Court and the Court of Appeals; (c) that the said order be entered upon the minutes of the Court; (d) that the clerk of the superior court of Richmond County, Georgia, do issue George Elmer Ross, movant herein, upon payment of the costs therefor, a license to practice law in this State, except in the Supreme Court and the Court of Appeals."

Upon the hearing the movant introduced one witness, Mrs. Katherine S. Wright, who testified, in substance, that she was a legal secretary, and had been for a period of from fourteen to fifteen years, that she lived in Augusta, Georgia; that she held a license to practice law in Georgia; that she stood the bar examination in May, 1942; and that movant took the examination at the same time and place with the witness. She recounted a number of irregularities, acts of misconduct on the part of other applicants together with the monitors in one of the examinations, asserting that such applicants obtained help from the monitors and from law books, and that as to them the examination was dishonest and unfair, but that the movant had no part in and did not participate in any of such cheating and misconduct; and that she considered the movant the only person taking the examination who acted entirely honest. This witness testified that the examination was supposed to close at 12 p. m., and that she left at that time; but, without giving the source of her information, she testified further that some of the applicants stayed until 3 a. m., comparing their answers, and that every one of them passed the examination. No further evidence was offered. The court entered an order or judgment which recited that the only oral testimony submitted by the movant in support of the charges made in his petition was the testimony of the one witness who told of irregularities occurring during the examination held in May, 1942, and that movant had no part in such irregularities, and that there was no other evidence offered by movant in support of his petition; and that "it is therefore considered, ordered, and adjudged that the petition be refused and denied and hereby dismissed." To this judgment movant excepted. No person except licensed attorneys from other States and the District of Columbia, as provided in the Code, § 9-201, shall be permitted to practice law in this State except by examination as is now or may be hereafter provided by law. Code, § 9-101. This statutory provision is controlling, and in the absence of a compliance therewith no person can successfully assert a claim to a license to practice law in this State. The examination referred to is provided for in the Code, § 9-111, and it is declared in § 9-112 that all persons who have successfully passed the examination with a proper certificate from the board of examiners to that effect may be duly licensed to practice law upon taking the oath provided by law and upon payment of the required fee. Code, § 9-115. These are valid provisions of law, designed by the legislature in the exercise of its constitutional authority to protect the public. They may not be set at naught by any action of the courts. They are not subject to alteration or nullification by any rule which may be adopted by the Supreme Court pursuant to the authority conferred by the Code, § 9-114. The Supreme Court is therein empowered "to pass such rules as may be necessary to carry the foregoing [statutory] provisions for admission to the bar into effect" and to amend "such rules" as occasion may require. The State board of bar examiners are appointed by the Justices of the Supreme Court. § 9-105. The meetings of that board are fixed by the rules of the Supreme Court. § 9-108. The authority for the board to hold a bar examination is set forth in § 9-110. That board shall pass upon the merits of each examination, and shall determine whether or not each applicant is qualified. § 9-111. The rules of the Supreme Court adopted pursuant to the provisions of the law require that an applicant must make seventy per cent. On the bar examination before he is entitled to admission to the bar. Rule 7. Rule 8 makes it the duty of the judge of the superior court, upon receipt of a certificate from the State board to the effect that an applicant is entitled to a license to practice law, to deliver to the applicant an order to the clerk of that court to issue to the applicant a license to practice law.

In view of the foregoing provisions of law, it is clear that neither the petition nor the evidence offered in support thereof shows any right of this movant to the relief sought. It shows that the movant is seeking a license to practice law without a certificate from the State board of bar examiners that he is entitled to such license. There is no allegation of fact in the petition showing fraud or misconduct upon the part of any member of the board. The case is planted upon the conclusion of the pleader that he passed the examination. No attempt was made upon the hearing to support this conclusion with any evidence. The only evidence offered was entirely irrelevant to the matters set forth in the petition, and, whether true or not, does not appear to have in any wise affected the right or interest of this movant.

We think it well here to rule that the State board of bar examiners is not a quasi-judicial body; and whether or not any complaint movant might have about the actions of that board may be determined by the writ of mandamus against the board, it is clear that the present proceeding is not an available remedy.

Judgment affirmed. All the Justices concur.