CARTER, J. I dissent. The majority opinion in this case evades the material issues and disregards pertinent authorities which should control the disposition of the case. While giving lip service to the so-called Hardy case (State Bar v. Superior Court, 207 Cal. 323 [278 P. 432]), it utterly disregards the holding in that case and emasculates the doctrine therein enunciated. It fails to even mention the numerous cases which hold that a violation of a statute relating to the duties of justice of the peace is an offense against the judicial office and not against the legal profession or practice of law. It does not attempt to differentiate or suggest any basis for a [673]distinction between a violation by a justice of the peace of the provisions of section 170 of the Code of Civil Procedure and a violation of the provisions of section 171 of that code. It fails to suggest any basis for its holding that petitioner’s acts involved moral turpitude.
In my opinion the offense of a justice of the peace in violating section 171 of the Code of Civil Procedure, if proven, may amount to such misconduct in office as would subject him to removal from office in the manner provided by law. It is now held by the majority that it also places him in peril of proceedings which may destroy his eligibility to practice his profession or remove him from his membership in The State Bar and thus accomplish by indirection his disqualification to hold, and hence, necessarily, his removal from office for which the Legislature has set up a direct, if not exclusive, mode of procedure. (Pen. Code, § 758 et seq.) A justice of the peace of a Class A township must be an attorney at law. (Code Civ. Proc., § 159a.)
In State Bar v. Superior Court, 207 Cal. 323 [278 P. 432], sought to be distinguished by the majority opinion, attention was directed to the foregoing dangerous and untoward consequences. It was there held that The State Bar was without jurisdiction to proceed against a judge of the superior court for the reason that the right of such judge to practice law was suspended during his continuance in office. In the course of the opinion this court stated: ‘ ‘There would seem to exist many reasons, rooted in public policy, why this public and, it may well be said, powerful corporation, considering its membership and the relation thereof to the administration of justice through the judicial arm of the state government should not lightly be held to be invested with the power and authority over judicial officers which in the instant case it has sought to exercise.” Notwithstanding this declaration, I am disposed to hold that inasmuch as a justice of the peace may act in the capacity of a lawyer with certain restrictions it may be desirable that The State Bar be not completely shorn of regulatory powers over him. However, I cannot agree with the majority, that this court should not be astute to heed any demarcation between an offense committed against a judicial office and one that may be committed against the profession of an attorney at law. In our system of government, the independence of the judiciary is fundamental. It is essential in all courts that the judges who are appointed or elected to. administer the law [674]should be permitted to administer it under the protection of the law, independently and freely, without favor and fear. The proper method for ridding the people of any district, county, township, or municipal officer, for misconduct in office is set forth in sections 758 et seq. of the Penal Code. A justice of the peace is in need of protection similar to any other judge or justice, hence, should a disciplinary proceeding against an incumbent justice of the peace come before us, I do not want to be foreclosed by the instant decision from considering the applicability and propriety of the holding in the case of State Bar v. Superior Court, supra, that the regulatory power of The State Bar over a justice of the peace be deemed suspended, at least, to the extent that his right to practice law has been suspended. Thus, if what is charged against him is a violation of that suspension, it would not be a matter for State Bar action, but would leave the matter of his qualification to hold office to be determined in the manner provided by law.
In some jurisdictions it is held as a logical sequence of the rule that a judge cannot be disciplined, as a lawyer, during his tenure of office because of misconduct, that such acts cannot be made the basis of disbarment proceedings afterwards. (In re Jones, 202 La. 729 [12 So.2d 795] ; In re Meraux, 202 La. 736 [12 So.2d 798].) However, it has been determined otherwise in this state (See In re Craig, 12 Cal.2d 93 [82 P.2d 442]). Under this rule it would seem to follow that petitioner being no longer a justice of the peace, The State Bar has jurisdiction over his person and of the acts committed by him while he was a justice of the peace. Notwithstanding this rule it does not follow that cause, for discipline has been made out in this case.
The majority opinion seeks to obviate the necessity of finding moral turpitude in the conduct attributed to petitioner by holding that the violation of section 171 of the Code of Civil Procedure constitutes an offense against the profession or practice of law. Local Administrative Committee #8 for the County of Los Angeles, before whom the disciplinary proceedings in the .instant matter were initiated found that petitioner had committed the acts - charged against him, but did not find any moral turpitude. The Board of Bar Governors (by a vote of 12 to 3) made an additional finding and conclusion to the effect that the conduct charged and found to have taken place involved moral turpitude. The theory of respon[675]dent, The State Bar, is that petitioner should be disciplined pursuant to section 6106 of the Business and Professions Code (State Bar Act), which provides that an attorney may be disbarred or suspended “for the commission of any act involving moral turpitude, dishonesty or corruption, whether the act is committed in the course of his relations as an attorney or otherwise. ’ ’ Petitioner has vigorously attacked the conclusion that his conduct constitutes moral turpitude. The majority opinion makes no effort to meet this attack but as aforesaid seeks to obviate the necessity thereof. In order to arrive at their conclusion that petitioner may be .disciplined irrespective of the discovery of moral turpitude “as a separate and distinct element of the act,” the majority have by-passed numerous authorities which distinctly hold that an offense such as charged against petitioner is an offense against the judicial office which he holds, only, and not an offense against the profession or the practice of law. (State Bar v. Superior Court, 207 Cal. 323 [278 P. 432] ; Baird v. Justice’s Court, 11 Cal.App. 439 [105 P. 259]; Connecticut M. Life Ins. Co. v. Most, 39 Cal.App.2d 634 [103 P.2d 1013] ; In re Silkman, 88 App.Div. 102 [84 N.Y.S. 1025]; In re Strahl, 201 App.Div. 729 [195 N.Y.S. 385].)
State Bar v. Superior Court, supra, involved an application by The State Bar for a writ of mandate to compel the Superior Court of Los Angeles County to require Carlos Hardy, a judge thereof, to testify before a committee of the Board of Governors of The State Bar investigating charges against him involving the practice of law and acceptance of $2,500 in fees while a judge of the Superior Court of Los Angeles County. Article VI, section 22 of the state Constitution then provided that: “No judge of a court of record shall practice law in any court of this state during his continuance in office.” The writ was denied. During the course of the opinion this court stated: “An attorney and counselor at law who may be the incumbent of a judicial office, by essaying to practice law, does not by so doing violate any particular principle of legal ethics to which our attention has been directed. This is shown by the fact that the occupants of judicial positions in the courts of this state not of record, who are otherwise eligible so to do, may and in most instances do practice law without any suggestion that in so doing they are violating either former or existing laws defining and regulating the ethical practices of the legal profession. The offense of a judge of a court of rec[676]ord who violates the foregoing provision -of the constitution is not an offense against his profession, but against his office. ’ ’
In Baird v. Justice’s Court, supra, a judgment of a justice’s court ordering a police judge ‘ ‘ disbarred from practicing law in the Justice Court of Riverside Township, so long as he shall remain Police Judge of said city, ’ ’ was annulled. One ground of decision was that if as a matter of fact the police judge had violated the law by engaging in the practice of his profession before a justice of the peace, when at the same time he was occupying a judicial position, his offense is that of a judicial officer and not that of an attorney, and that if he subjected himself to any penalty by reason of misconduct, it was that provided by section 758, Penal Code (removal from office).
In In re Silkman, supra, it was urged that the New York Supreme Court, Appellate Division, had “inherent” power to discipline lawyers, and “that an offense committed by a Judge in practicing, when prohibited, is likewise an offense committed by him as a lawyer, which calls for the exercise of the inherent power.” It was held that if the accused “has violated the injunction of the Constitution, he has offended as surrogate, and not as an attorney. As an attorney his right to practice law is undoubted, and it is only as surrogate that it is or can be questioned, and it follows that the violation of the Constitution, if it has been violated, has been committed by him in his judicial or official, rather than in his professional capacity.” A similar holding was made in In re Strahl, 201 App.Div. 729 [195 N.Y.S. 385].
The place occupied by section 171 in the Code of Civil Procedure discloses similarly that it is a disqualification or prohibition against the conduct of judges and was never intended to be a statute regulating the conduct of attorneys as such. It is found under the chapter heading: “Disqualifications of Judges.” The section of the code immediately preceding, and a part of the same chapter, is the more commonly known section 170, prescribing grounds for disqualification of a “justice, judge, or justice of the peace” for personal interest, interest by relationship, prior service as attorney and bias or prejudice. The chapter containing sections 170 and 171 is a part of part I, title II of the code. Part I is titled, ‘ ‘ Courts of Justice,” and title II bears the title, “Judicial Officers.” On the other hand, chapter I, title V of part I of the Code of Civil Procedure as originally enacted related to attorneys as such and bore the heading, “Attorneys and Counselors at [677]Law.” The sections therein contained have for the most part been repealed and reenacted as chapter IV of the Business & Professions Code, under the heading, “Attorneys.” These headings or titles being a part of the codes as originally enacted or amended by the Legislature may be consulted in interpreting the sections of the codes, so that they may be given effect according to their true import. (Sharon v. Sharon, 75 Cal. 1, 16 [16 P. 345] ; In re Forthmann, 118 Cal.App. 332, 336 [5 P.2d 472] ; 23 Cal.Jur. § 147, p. 772.)
It is manifest from the foregoing authorities and what has been said that section 171 of the Code of Civil Procedure does not purport to regulate the duties of a lawyer. Its obvious purpose is to prevent reciprocity in the administration of justice that might result if justices of the peace in the same county were allowed to practice law before each other. The consequences of the instant decision are far-reaching. If a justice of the peace may be disciplined by The State Bar for a violation of section 171 of the Code of Civil Procedure, then he may be similarly disciplined for sitting in a ease in which he is interested in violation of section 170 of that code.
The charges against petitioner not amounting to an offense against the profession or the practice of law, disciplinary proceedings against him are not justified unless his conduct falls within section 6106 of the Business & Professions Code, which provides that an attorney and counselor may be disbarred or suspended for “the commission of any act involving moral turpitude, dishonesty or corruption, whether the act is committed in the course of his relations as an attorney or otherwise. ’ ’ A consideration of the record before us leads to the inescapable conclusion that the additional finding and conclusion of the Board of Bar Governors (not made by the local administrative committee), that petitioner “committed acts involving moral turpitude, dishonesty and corruption within the meaning of section 6106 of The State Bar Act,” cannot be sustained. According to the uncontradicted evidence adduced at the hearings before the local administrative committee, the promissory note sued upon was given for a legal and just claim, and was unpaid in the amount sued for. No attempt was made to show that the makers of the note, the defendants in the action brought upon it, at any time had, or believed they had, a defense to the action. The notice to show cause does not even allege facts showing that petitioner com[678]mitted any acts which were detrimental to the makers of the note or that any advantage was obtained by him contrary to their legal obligations. In Wallis v. State Bar, 21 Cal.2d 322 [131 P.2d 531], it appeared that the petitioner borrowed money from a client on a number of occasions, promising interest and large bonuses, in order to make speculative investments, Representations in regard to the investments not warranted by any information in the possession of the petitioner were made to the client. It was contended that because of the making of these representations petitioner should be suspended for six months. We held that even if the client had a cause of action for fraud against the attorney under the rule stated in section 1572 of the Civil Code, disciplinary action was not justified because there had been no intent to mislead. (Cf. In re Bryant, 21 Cal.2d 285, 296 [131 P.2d 523] ; 3 Cal.Jur. § 122, p. 727.)
At the time of the filing of the suit complained of, July 7, 1939, petitioner actually was not sitting in his court, but was on vacation, and remained on vacation while service of copies of the complaint and summons were made on defendants and beyond the time in which defendants were directed to answer. A visiting justice from another township sat in petitioner’s court during the entire month of July, 1939. Petitioner did not act upon any issue of law or fact in the matter, but on the contrary testified that if any issue of fact or law arose while he was sitting he intended to disqualify himself and call in another justice. The action being in contract for the amount of $75, all the parties residing within San Gabriel Township, and the note being payable within the township, the justice’s court of that township was the proper court for institution of the action. (Code Civ. Proc. (1937), §§ 112, 395.) As heretofore stated, it was not alleged or shown that any ulterior motive prompted bringing the action, or that the makers of the note have beent deprived of a defense. At the time of issuance of execution, petitioner had ceased being a justice of the peace, and the Board of Bar Governors made no finding conforming to the allegations in the notice to show cause that petitioner had caused the issuance of the writ of execution and delivered it to the constable knowing “full well that the judgment rendered in said action theretofore was wholly void and of no legal effect.” The judgment was not void. (Connecticut M. Life Ins. Co. v. Most, 39 Cal.App.2d 634 [103 P.2d 1013].) The matters herein concerned, except the issuance and levy of [679]execution, occurred during the summer of 1939 and were not repeated, yet no action was taken by respondent until May, 1943. Petitioner ceased being justice of the peace and returned to the full time practice of law in January, 1943. Therefore, the delay in instituting proceedings may have been caused by respondent’s doubting whether or not it had jurisdiction while petitioner continued to be a justice of the peace, although according to its argument in this proceeding it had the power to investigate and maintain proceedings at all times. At any rate, in 1940, when the matter was fresh in the minds of everyone, it was investigated by the Los Angeles County grand jury, a body that had the power to present an accusation directed toward removing petitioner from office, “for willful or corrupt misconduct” (Pen. Code, §758 et seq.), which body, after summoning and hearing witnesses, took no action. Evidently it was of the opinion that the offense, if committed, did not include “willful or corrupt misconduct in office.” I am equally convinced that it did not involve moral turpitude and that therefore these proceedings should be dismissed.
The majority apparently attempt to derive some support from a statement made toward the close of the opinion, that “The presence of moral turpitude sufficient to justify disbarment or suspension may be disclosed under varying circumstances. For example, if an attorney is convicted of a felony or a misdemeanor involving moral turpitude the record of a final judgment of conviction is conclusive against him. (Section 6101, State Bar Act.)” Whatever the intended significance of the statement it clearly has no application to the facts of this case. Petitioner has not been convicted of any crime and the majority opinion fails to state any basis for holding him guilty of acts involving moral turpitude. For a definition of moral turpitude see In re O’Connell, 184 Cal. 584 [194 P. 1010] ; In re Craig, supra; In re Rothrock, 16 Cal.2d 449 [106 P.2d 907,131 A.L.R. 226].
The effect of the majority opinion is to overrule the Hardy, Baird and Connecticut Mutual Life Insurance cases, and also the Rothrock case, without giving consideration to the reasoning which formed the basis of those decisions. Certainly if these cases are to be overruled, some mention should be made of them in the majority opinion and some basic reason should exist for such action. I challenge anyone to read the last cited cases and reconcile the views therein expressed with the majority opinion in this case.
[680]From what I have said in the foregoing dissenting opinion it is obvious that the proceeding against the petitioner should be dismissed.
Sehauer, J., concurred.
Petitioner’s application for a rehearing was denied July 26, 1945. Carter, J., and Sehauer, J., voted for a rehearing.