dissenting.
The defendant is charged with the unauthorized practice of law. To sustain that charge these . facts are set out in the bill:
“6. The respondent is and for some years has been engaged in the real estate business; that as a part of the said business, it regularly prepares for others deed and deeds of trust.
“(a) That on the 19th day of June, 1944, the respondent prepared a deed of bargain and sale, wherein Robert L. Go wen and Lillie Jones Go wen conveyed certain real estate to Franklin Davis Corporation, the said deed being filed in the clerk’s office of the Chancery Court of the city of Richmond on July 5, 1944, it now bearing clerk’s number 94 for the month of July, 1944, but not yet recorded.
“(b) That on the 1st day of July, .1944, the respondent prepared a deed of bargain and sale, wherein Franklin Hold*45ing Corporation conveyed certain real estate to George N. Minson and Maud C. Minson, the said deed being filed in the clerk’s office of the Chancery Court of the city of Richmond on July 5, 1944, it now bearing clerk’s number 95 for the month of July, 1944, but not yet recorded.
“(c) That on the 1st day of July, 1944, the respondent prepared a deed of trust, wherein George N. Minson and Maud C. Minson conveyed certain real estate to L. C. Jones and Franklin Robins, trustee, to secure the holder and/or holders of notes described therein the sum of $928.00, the said deed of trust being filed in the clerk’s office of the Chancery Court of the city of Richmond on July 5, 1944, it now bearing clerk’s number 96 for the month of July, 1944, but not yet recorded.”
Such practice is a crime, made so by Code, section 3422. Since it is a crime, it must be proven, as other crimes are proven—beyond a reasonable doubt.
No warrant or indictment has issued, but we have been asked by a declaratory judgment to say that a certain practice is unlawful although it is made so by statute; and in this wise petitioners have sought to detour the hazard of a jury trial and a judgment if for the defendant would be unappealable. As a matter of fact, appellants here are the Commonwealth of Virginia and the Virginia State Bar.
In Code, section 3430a, this court was authorized to prescribe, adopt and promulgate rules and regulations:
“(a) Defining the practice of law,—
“(b) Organizing and governing an association to be known as the Virginia State Bar composed of the attorneys at law of this State, to act as an administrative agency of the Supreme Court of Appeals of Virginia for the purpose of investigating and reporting the violation of such rules and regulations as are adopted by the Supreme Court of Appeals under this act to a court of competent jurisdiction for such proceedings as may be necessary, and requiring all persons practicing law in this State to be members thereof in good standing.”
*46That was done. They are set out in Virginia Reports, 173, beginning at page xviii. Their caption reads:
“Rules For Integration of The Virginia State Bar
Adopted and Promulgated By The Supreme Court of Appeals of Virginia
October 21, 1938
Amended February 17, 1939”
These rules originated with the Integrated Bar and were adopted and promulgated by this court. The relation of client and attorney is declared to exist whenever these conditions obtain:
“(1) One undertakes for compensation, direct or indirect, to advise another, not his regular employer, in any matter involving the application of legal principles to facts or purposes or desires.
“(2) One, other than as a regular employee acting for his employer, undertakes, with or without compensation, to prepare for another legal instruments of any character, other than notices of contracts incident to the regular course of conducting a licensed business.”
And it is the Integrated Bar which is now in substance asking that its own rules be construed and enforced. Under well recognized principles, if there be any doubt as to their meaning, that burden the Integrated Bar must bear.
The Legislature and this court has the power to define unauthorized practice of law. But that power itself is limited by our Bill of Rights. Such regulations as are adopted must deal with the practice of law. Neither „ of them could by fiat declare that to shuck corn is to practice law.
The Integrated Bar has some of the indicia of a closed shop. We are all members of the union, and as such we are the ultimate arbitrators. This responsibility is great but unavoidable. We are to make haste slowly—festinamus lente *47—and should give such judgment as should be expected from a jury of just men and realtors whose single purpose was to do what is right. *>
Because this case turns upon what is and is not unauthorized practice of law, I recopy this definition:
“(a) One, other than as a regular employee acting for his employer, undertakes, with or without compensation, to prepare for another legal instruments of any character, other than notices 'or contracts incident to the regular course of conducting a licensed business." (Italics supplied.)
That deed and deeds of trust are contracts is too plain for argument. They often contain covenants of most important and far-reaching effect, both upon the grantor and grantee.
The chancellor below, in the course of his written opinion, well said:
“If a deed is a ‘contract,’ and, if under the circumstances recited the drafting of it is ‘incident’ to the regular course of conducting the real estate business, then it necessarily follow shat the realtor is within his rights in preparing the same.
“In section (2) the court makes no distinction between kinds of contracts. The only condition imposed is that it be incident to the course of conducting the business. It does not say simple contracts or formal contracts, bilateral contracts or unilateral contracts, sealed contracts or unsealed contracts. But it does say contracts, necessarily meaning all contracts, incident to the regular course of conducting the business. It is as forthright and definite a statement of what the court means as can be couched in a short, clear and direct sentence. The succinct statement of Mr. Justice Holt, in Title Ins. Co. v. Howell, 158 Va. 713, at p. 718, 164 S. E. 387, seems here appropriate.—‘Ambiguities may be cleared away and weasel words explained, but that which is clear needs no explanation.’ ”
Indeed, all that is said might be studied with profit.
Two controlling exceptions are to be noted: Regular employees are exempt from these restrictions, as are contracts incident to the regular course of conducting a licensed business. Since the defendant is a corporation, it can only *48act through its agents; but more important still is the provision that contracts incident to the regular course of conducting a licensed business are excluded. What are contracts incident to the regular course of conducting a licensed business?
The Century Dictionary described them as “matters subordinate; casual; incidéntal * * * subordinate to a principal thing.” Webster’s New International Dictionary describes them as something “appertaining to something else, though not an essential part of it.”
Since this qualification was in substance drafted by those who seek to enforce it, it should be liberally construed. But whether construed liberally or not, it is perfectly plain that the main business of the defendant is to buy and sell real estate, and that the writing of deeds therefor and placing of mortgages thereon are subordinate to the" main purpose for which it was chartered and licensed.
Said sub-section (2), which tells us that contracts incident to a licensed business are excluded, governs and is amply supported by authorities.
“General language of a statutory provision, although broad enough to include it, will not be held to apply to a matter specifically dealt with in another part of the same enactment.
* * * ” Ginsberg & Sons v. Popkin, 285 U. S. 204, 52 S. Ct. 322, 76 L. Ed. 704, 705.
But beyond all peradventure, in the very language of the rule itself, extra-curricular activities, which are but “incidents” to a legitimate major activity for which the defendant was chartered and licensed, are to be excluded.
Under modern conditions neither professions nor business can function successfully in a straight-jacket. As the court well said in Cowern v. Nelson (1940), 207 Minn. 642, 290 N. W. 795:
“The line between what is and what is not the practice of law cannot be drawn with precision. Lawyers should be the first to recognize that between the two there is a region wherein much of what lawyers do every day in their practice *49may also be done by others without wrongful, invasion of the lawyers’ field. We think that ordinary conveyancing, part of the every day business of the realtor, is within that region and consequently something of which the legal profession cannot under present circumstances claim that the public welfare requires restraint by judicial decree.”
Hospitals are something more than boarding houses. Nurses prepare charts which tell at a glance the progress of patients up or down. Technicians tell us the color of their blood. All of this is of great value to physicians. They take their art from empiricism into the atmosphere of science, yet no court, State or Federal, with or without a statute, has ever held that these instrumentalities are practicing medicine.
The educational qualifications of doctors is certainly not less exacting than those required by lawyers, while public interest touching qualifications of doctors is not less vital than that which attaches to lawyers.
In Stuart Circle Hospital Corp. v. Curry, 173 Va. 136, 3 S. E. (2d) 153, 124 A. L. R. 176, Mr. Justice Spratley said:
“The object, aim and purpose of a hospital,—the reason for its establishment and operation, is to render and perform medical treatment and nursing of a skilled character. It is the facility for affording the patient a higher and greater degree of nursing and medical attention than would be ordinarily possible outside of a hospital that makes it desirable. The opportunity to render such service enables a hospital to make a higher charge than a hotel or boarding house. The desirability of securing the needed service provides inducement for the patient to enter the hospital. The patient comes to the hospital for advice, aid and treatment,— not to give either.”
One may ask his bank for a letter of credit. Many lawyers have never seen one. The bank, instead of calling in a lawyer, calls upon an expert member of its own staff to draft it. It is not contended that the bank or' this staff member are practicing law.
A cotton mill at Danville, in the purchase of raw materials *50and in the sale of its products, enters into unnumbered contracts, many of which no lawyer ever saw. It is not practicing law.
We may come nearer home. Many lawyers, particularly in rural communities who have found their clients involved, thought it well that they convert their assets into cash and pay their debts, and have so advised them. Sometimes it might be necessary to sell their lands. In such circumstances, and as incident to the major purpose for which they were retained, they might aid them in finding purchasers. No court, State or Federal, with or without a statute, has ever undertaken to penalize them for doing an unauthorized business as real estate agents.
Doctors and dentists daily tread upon each other’s heels.
In Lowell Bar Ass'n v. Loeb (1943), 315 Mass. 176, 52 N. E. (2d) 27, is a case in which it was charged that those who made out Federal income tax returns were practicing law. The court said:
“There are instruments that no one but a well trained lawyer should ever undertake to draw. But there are others, common in the commercial world, and fraught with substantial legal consequences, that lawyers seldom are employed to draw', and that in the course of recognized occupations other than the practice of law are often drawn by laymen for other laymen, as has already been shown. The actual practices of the community have an important bearing on the scope of the practice of law.”
The case of Commonwealth v. Rucker, Corporation Court of Buena Vista, decided by Judge Beverly Berkeley of the Law and Chancery Court of the City of Roanoke, July 7, 1941, and found in Third Annual Report of the Virginia State Bar year 1941 at page 48, sheds a flood of light upon this case.
Mr. Rucker was clerk of the circuit court of Buena Vista and prepared for pay deeds, deeds of trust, wills, contracts, homestead deeds; he examined titles, furnished abstracts thereof, together with opinions upon their validity. He was charged with the unauthorized practice of law and was *51rightly convicted. He was not a lawyer and not a licensed real estate broker. Paragraph 2 of the final decree in that case reads:
“That the defendant, not being a duly licensed attorney at law, customarily prepared for others deeds, deeds of trust, wills, contracts, homestead deeds and other legal instruments, examines titles, furnishes abstracts of title, and renders opinions upon the validity of the title to real' estate, other than as a regular employee acting for his employer and other than notices or contracts incident to the regular course of conducting a licensed businessItalics supplied.
He would not have been convicted for doing some of the things which he did had he been a regular employee acting for his employer; and he would not have been convicted had he been a licensed real estate broker and had he prepared a deed of bargain and sale on the 19th day of July, 1944, as incident to the business of a real estate broker, had he been such so chartered and licensed. For the same reason, he would not have been convicted of preparing the deed of trust executed as we have seen on July 1, 1944.
In passing, it is interesting to note that the title to Mr. Rucker’s case runs Commonwealth v. Rucker. Had Mr. Rucker won, there would have been no appeal, and, as heretofore noted, that hazard in the instant case was detoured by joining individuals with the Commonwealth as complainant.
The net result of it all is this: Businesses and professions now overlap each other, and each may do those things which are ancillary to and reasonably necessary in the successful prosecution of their several callings.
All that defendant has done is set out in some detail in our Code, chapter 209. We have never charged that Federal income tax experts are practicing law. Their work is immensely more complicated than executing a deed of bargain and sale or a trust deed securing unpaid purchase money.
Under modern conditions, callings, and particularly professional callings, do, at times, incidentally trench upon each *52other and overlap. Real estate agents, as but incident to the purpose for which they are chartered and licensed, do some things which might be done equally well by lawyers; and lawyers, in their turn, do things incidental to their profession which might have been left to real estate agents.
Dissenting opinions may serve as a safety valve. All too often they áre but a voice crying in the wilderness—vox et praeterea nihil—gone with the wind, as have been many other worthy efforts.
Spratley, J., concurs in this dissent.