They then think that, because their objective is commendable, any method of attaining it is justifiable. In other words, they assume that the end justifies the means. But that theory can never be sustained in a court of law. If it were approved, the law would lose its virtue as a social and political bond. We would cease to have a government of and by law. We would then be ruled by the capricious, arbitrary and tyrannous conduct of majorities and those in office.
Discipline is an inherent requirement of human nature -- in the individual and in the body politic. History reveals that when discipline is not self-imposed, it must be super-imposed. The life of democracy depends on its observance of the law. In determining its judgment, a court of law must consider its effect, not only on the instant case, but also on all similar cases. The affirmance of a voice vote in the circumstances of this case would reduce to a nullity the provisions for two-thirds votes in the By-Laws of all associations and corporations.
This Court is not unmindful that the provision for a two-thirds vote in by-laws or constitution has been severely criticized as impractical, more harmful than beneficial, and a means by which an arbitrary minority may thwart the will of the majority. Such criticism has been most prevalent against the provision in our Federal Constitution which requires a two-thirds vote for Senate approval of treaties. Const. art. 2, § 2, cl. 2. It has been referred to by respected authority as 'an outmoded flaw in our Constitution', 'a fatal defect'. Edward S. Corwin, in 'The Constitution and World Organization', has said, 'The two-thirds rule was an anomaly before it was ever put into operation, and everything that has happened since 1789, both within the constitutional system and outside of it, has contributed to aggravate its abnormity. For further discussion and authorities, see 'The United States and The World Court', by Denna Frank Fleming, Chapter X.
This consideration was not advanced in this case. It is mentioned here merely to say that if those who are irked by the two-thirds rule will not move to repeal it, they should not try to evade it. As long as it is the law, it should be observed and obeyed, especially by lawyers.
The allegations of the Answer that this court lacks jurisdiction and will not interfere in the affairs of a private corporation were disposed of by the ruling on the defendant's motion for summary judgment, but it seems well for the Court to state here that this defendant Association is an organization of members of the Bar of this court. From earliest times, the courts of England and of this country have assumed, and exercised, a supervisory jurisdiction over organizations and assemblies of persons licensed by the Court to practice law. It was judicially determined by Lord Mansfield that, while the courts had no jurisdiction over the Inns of Court 'according to the general law of the land', yet, 'in every instance their conduct is subject to the control of the Judges as visitors.'
This Court, and the Court of Appeals of this judicial district, have taken jurisdiction of other cases questioning the action of the Bar Association. United States ex rel. Robinson v. Bar Association of District of Columbia, 91 U.S.App.D.C. 5, 197 F.2d 408; United States ex rel. Noel v. Carmody, 80 U.S.App.D.C. 58, 148 F.2d 684.
While it may be conceded that the plaintiffs have sustained no pecuniary loss or direct property damage from the action complained of, yet it is the view of this Court that they have acquired, by joining and paying dues to the defendant Association, an interest in the Association and its property, and privileges which entitle them to assert that the character or membership of the Association shall not be changed except in accordance with the By-Laws of the Association (said to be the oldest in America).
It is the opinion of this Court that the assertion of such rights and interests does not violate rights protected by the Fifth Amendment of the Constitution or the public policy of the United States. The Legal Register for the District of Columbia lists a number of bar associations besides the defendant, which have limited or restricted membership. In addition to the defendant Bar Association, there is the Washington Bar Association, the Women's Bar Association, the Federal Bar Association. There is also a Patent Bar Association and a Barristers Club or Association. The legality and propriety of such associations have not been questioned, and members who have joined such associations have a right to insist that they continue to represent the special interests for which they were organized until their purpose and objective are changed in accordance with the basic law of the organization. Ross v. Evert, 275 Wis. 523, 82 N.W.2d 315.
People of any race, religion, or political faith may assemble and associate for the advancement of their interests. No sound public policy would destroy the interesting diversity of life. If the aim and end of democracy should be to reduce all men to the same shape and shade and common opinion, then it could and should not survive. It would counter one of the fundamental principles of evolution.
It is apparent to any person of fair mind that, if the defendant Association wishes to represent and to speak for all the lawyers of the District, then in all fairness it ought to make all lawyers eligible for membership. If it does not do so, then members of the bar who champion the proposed amendment ought to unite with other members of like mind and organize an all-inclusive bar association for the District which would be authorized to speak and act for all persons admitted to practice before the United States District Court.
The defendant Association, for a long time, has restricted its membership, and some of its members emphasize that object and purpose of the Association which is 'to increase the mutual improvement and social intercourse of its members'. If they feel that the social purposes of a limited membership are of more importance than being the agency of the entire bar of the District, their wishes and desires should not be overridden or denied except by action of the Association taken in accordance with the By-Laws.
Judgment for plaintiffs. This opinion may serve as findings of fact and conclusions of law, and counsel may prepare and submit a final order.
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