(Dissenting). In ordering the integration of the lawyers of Arkansas, the majority of this Court is taking a long step down the road toward a judicial regimentation of the legal profession in this State; and I cannot agree to that step. Hence this dissent, and some of the reasons that impel it.
The attempted justification for such integration is found in the first sentence of the majority opinion, which reads:
“A substantial majority of all of the actively practicing lawyers in the State have petitioned this Court to create an integrated bar association.”
The fact — if it be a fact — that a majority of the actively practicing lawyers in the State have asked for this integration is indeed a poor justification for judicial action. Courts do not decide cases according to popular will; nor may Courts submit pending problems to voting to determine how a case should be decided. (Elston v. Wilborn, 208 Ark. 377, 186 S. W. 2d 662, 158 A. L. R. 179.) Even when both parties desire a decree annulled, the Court still has discretion to refuse the prayed relief. (Dunn v. Dunn, 222 Ark. 85, 257 S. W. 2d 283.) Even when the Attorney General of Arkansas offers to confess error in a criminal case, this Court still examines the record to see if the confession is well taken, and in some instances, has refused to receive the confession of error. Skaggs v. State, 88 Ark. 62, 113 S. W. 346.
So, if all the lawyers licensed to practice by this Court had requested integration, nevertheless this Court should consider whether discretion would be abused in granting the request, even assuming the Court has the constitutional right to decree integration. In short, this Court cannot, like Pilate, wash its hands of responsibility by saying a “substantial majority” has asked that we do this.
When we consider this matter on its merits, stripped of the alleged “majority petition” argument, we find that this Court, by a majority of the Justices, is now compelling all licensed attorneys in this State to join a compulsory bar association. Under the sugar-coated word “integration,” the majority is accomplishing a judicial regimentation of the legal profession. We have never had such a compulsory bar association in Arkansas, so this is certainly a drastic change. In considering any change, it is wise to always consider the proposal under three points:
(a) the existing evil;
(b) the proposed remedy; and
(c) will the proposed remedy alleviate the existing evil without causing other and greater evils? Unless any proposed change can pass the test of the three points above, then the change should not be made; so I present my views under these three points.
(a) “The Existing Evil.” The majority opinion states that we have 2,371 attorneys licensed by this Court.1 The proponents of integration say that all the licensed lawyers should be required to contribute to the support of the bar association. My investigation discloses that there are 1,070 lawyers who are, at the present time, members of the voluntary bar association.2 So really the “existing evil” is that only 1,070 lawyers are supporting the voluntary bar association, and, therefore, that association cannot extend its activities as much as some desire.
(b) “The Proposed Remedy.” To remedy the aforesaid “evil,” it is proposed that the Arkansas Supreme Court compel every lawyer licensed by this Court to pay an equal pro rata part of all of the expenses of the compulsory bar association. Polish and paint the proposal as much as you will, the hard fact remains that this “integration” is a form of taxation which will be required for the privilege of being a licensed attorney; and the tax money is to go for enlarging and expanding of various activities.3
I am a member of tbe present voluntary bar association, and have paid my dues ever since becoming a member, shortly following World War I. I have paid my dues voluntarily; and I do not think that others should be required to pay who do not so desire. Compulsion is a poor substitute for voluntary action, regimentation is the direct antithesis of Democracy: yet compulsion and regimentation constitute the proposed remedy in this case.
(c) “Will the Proposed Remedy Alleviate the ‘Existing Evil’ Without Causing Other and Greater Evils?” The proposed remedy will alleviate the “present evil”: yes, it will get the money to operate a greatly expanded machine, because when the Supreme Court orders every licensed attorney to pay a certain amount of money at stated intervals, then the attorney must pay such amounts or lose his license: so it is clear that the compulsory tax will bring in the money. But that is only a small part of the question we now are considering.
The large question is, “... will the proposed remedy cause other and greater evils?” I am convinced that it will. The very word “compulsory” bar is obnoxiouto the legal profession, and the fact that it is a compulsory bar is sufficient in itself to be a preponderating evil.
According to the majority opinion, there are 1,129 lawyers actively engaged in the practice in this State. We now have 1,070 members of the Bar Association of Arkansas, our present voluntary bar, which has been in existence since 1899.4 Our voluntary bar association has had a steady growth.5 Each year when we meet in annual session — usually at the Arlington Hotel in Hot Springs — we have the feeling that we are attending as voluntary members because we love our profession, and not because some court order has compelled us to be members. If a court can compel a lawyer to join an association, then a court order can compel a lawyer to attend the meetings. What kind of meetings would those be in a free and Democratic country?
When this Court requires every lawyer to join the compulsory bar, then every substantial thing that the compulsory bar may hereafter do will, likewise, be subject to the approval or disapproval of this Court. Thus there may be assumed by this Court the responsibility to see that all those whom we compel to be members of the compulsory bar will be accorded fair and equal treatment. In the light of the foregoing, the following matters occur to me:
(1) The proposed constitution of the integrated bar, after it shall have been adopted by the bar, will undoubtedly be submitted to this Court for final approval.
(2) This Court may make a requirement that all attorneys be afforded an equal opportunity to participate in the drafting of the constitution; or if the constitution be adopted by a few lawyers (appointed in some manner not yet determined) and then submitted to the entire bar for adoption or rejection, even then the constitution will undoubtedly be submitted to this Court for final approval.
(3) This Court should see that a place of meeting be fixed for the compulsory bar at which all members of the compulsory bar may be in attendance without violating any of our racial segregation laws.
(4) This Court should see that all sections of the State are afforded equal representation on the governing board of the compulsory bar.
(5) Finally, this Court should consider what is its wish and pleasure about the continuation of the present voluntary bar of Arkansas. Will the Court forbid lawyers from joining a voluntary bar? What is the advantage of having a compulsory bar if there is also to be a voluntary bar?
When the Court considers every one of these matters and acts on them, where is any freedom left to the lawyers ?
The foregoing are only a few of the evils that are inherent in the “proposed remedy” of integration. I submit that these evils are far greater than the present one, where 1,070 lawyers are in a fine voluntary bar association, and only 592 lawyers of the entire 2,319 licensed by this Court have voted for integration. Under the proposal, the lawyers lose their freedom and become subject to judicial rule. Under the constitution of the present voluntary bar, judges cannot hold office in the association, and that is a wise provision. But, under the integrated bar proposal, the Supreme Court Justices become the rulers of the bar.
I cannot agree to this proposal for an integrated bar.
Some time has elapsed since the petition for integration was filed by 803 lawyers, which petition stated that there were only 1,129 lawyers engaged in the active practice in this State. Some time has also elapsed since the Clerk of this Court mailed ballots to each of the 2,371 attorneys licensed by this Court and received returns from 592 favoring integration and 455 opposing it. But for the purposes of this opinion, I treat all of the figures as current figures, just as did the opinion of the majority of this Court.
I use the term “voluntary bar association” to indicate the present Bar Association, which has been in existence since 1899. I use the term “compulsory bar association” to indicate the one that this Court is about to create in granting this petition for integration.
Part of the argument advanced by the proponents of the integrated bar, as filed in this Court, reads as follows: “Some benefits to be derived are:
“1. A central office can be maintained at Little Rock with a paid, full-time secretary to assist lawyers over the state* in their practice, to eliminate needless trips to Little Rock.
“2. Standard legal forms can be furnished. In Oklahoma, the annual dues of $10.00 cover both the Law Review subscription and weekly advance sheets of the Supreme Court opinions. We pay each year a license fee of $1.00, bar association dues, $6.50, plus $12.50 for the Reporter, or a total of $19.00.
“3. Much can be done to curtail the unauthorized practice of the law. Sound public relations can be developed, to eliminate certain prejudices against lawyers.
“4. Since no segment of lawyers can control the integrated bar, representative officers can speak for a unified bar.
“5. Needed projects can be undertaken. The bar will be able to do its work better, and the public will benefit by an effective organization.
On Page 266 of Vol. 6 of the Arkansas Law Review, there maybe found the name of every President of the Association from 1899 to 1952.
The membership figures of the voluntary bar association, as furnished me, for the past several years are as follows: March 10, 1953, 1,070 members; Jan. 18, 1952, 939 members; June 27, 1951, 925 members.