
    COURT OF APPEALS.
    In the Matter of the application of Henry W. Cooper.
    An order of the general term of the supreme court, denying an application for admission to practice as an attorney and counsellor at law9 is appealable to this court. (Comstock, Ch. J.; Denio and Wright, Judges dissenting.)
    
    It is a general rule, that, whenever the law confers a right9 and authorises an application to a court of justice to enforce that right, the proceedings upon such an application are to be regarded as of a judicial nature; (not executive or administrative ;) and, according to the definition of the Code of Procedure, an application to enforce such right is a remedy; and remedies being divided into “ actions” and “ special proceedings,” the application must be considered a special proceeding.
    
    The act entitled “An act relative to the Law School of Columbia College,” passed April 7, I860, providing for the examination by a law committee, of graduates, and their admission to practice as attorneys and counsellors at law in all the courts of this State, held to be valid and constitutional. (Comstock, Ch. J. dissenting. This decision reverses the decision of the supreme court; S. C.9 19 How. Pr. R.9 136; and also the decision in the case of the graduates of the N. Y. University, id. page 97. See the protest of the supreme court at the close of this case.)
    
    
      September Term, 1860.
    Appeal from an order of the New York general term of the supreme court.
   Selden, J.

This is an appeal from an order made at a general term of the supreme court, in the first judicial district, denying the application of the appellant to be admitted to practice as an attorney and counsellor at law, pursuant to the provisions of the act relative to the law school of Columbia College, passed April 7, 1860 ; and the first question to be considered is whether an appeal will lie to this court from such an order.

It is suggested as an objection to the appeal, that such an application is not a judicial proceeding; that the power of appointing or admitting attorneys and counsellors is executive or administrative rather than judicial, and might be conferred upon any other branch of the government as well as upon the judiciary. It is urged, therefore, that the action of the courts in the exercise of this specially delegated power, cannot be regarded as of a judicial nature, and hence that no appeal will lie.

It must be conceded that this objection, if well founded in respect to the nature of the order appealed from, would be fatal to the appeal. It is indispensable to the validity of an appeal to this court, that it be from some judicial determination of the court below. But is not the proceeding here judicial? Although in the general distribution of powers and duties among the great departments of the government, many are found the characteristics of which are so marked, that they can with certainty be referred to the appropriate department, yet this is by no means the case with all. The lines between the various departments are not and cannot well be very precisely defined, and there are many duties which may be with equal propriety referred to either. Duties of this class, and they are very numerous, necessarily take their character from the departments to which they are respectively assigned. The same power which, when exercised by one class of officers not connected with the judiciary, would be regarded and treated as purely administrative, becomes at once judicial when exercised by a court of justice. This is shown by the definitions uniformly given of the word judicial. Webster defines it thus: “ Pertaining to courts of justice, as judicial powerand again, “ proceeding from a court of justice, as a judicial determination.” In Bouviere’s Law Dictionary, it is defined as follows: “ Belonging to or emanating from a judge as such, the authority vested in the judgeswhatever emanates from a judge as such, or proceeds from a court of justice is, according to these' authorities judicial. This, precise principle was involved in some of the cases which have been from time to time presented to our courts under the acts for opening streets in the cities of New York and Brooklyn. The judges at first considered themselves, in the exercise of their powers under those laws, as acting not strictly as judges, but in a sort of administrative capacity as commissioners; but subsequently changed their views in this respect, and took the ground which has since been repeatedly confirmed, that the power was conferred not upon the judges as individuals, but upon the court; that their action in the matter was to be regarded as judicial, and that all the ordinary incidents of judicial proceedings were applicable to such cases.

In the case of Patchin agt. The Trustees of Brooklyn, (2 Wend., 377,) which was carried from the court of common pleas to the supreme court by certiorari, chief justice Savage said : “ This is a specially delegated power to the court of common pleas as a court, and not to the judges as an ex-officio duty; and when such a power is committed to a court, all the ordinary powers of such court, so far as they are applicable to the discharge of the particular duty, may be exercised as in ordinary cases.” The same judge in a subsequent case, viz., In the matter of Canal street, (11 Wend., 154,) said: “ If they misbehave we punish them by attachment, as we might referees in a case committed to them. If for any cause persons appointed as commissioners are shown to be improper, we may, by virtue of the power of appointment, remove them and appoint others. We are not the mere conduits of conveying authority to the commissioners. They become officers of our court, the proceeding is a proceeding in our court, &c.”

It will be seen that the chief justice in these extracts spoke not of the action of the court in reviewing and confirming the reports of the commissioners which might be considered as more especially of a judicial nature, but of the appointment of the commissioners themselves, and the substance of what is said is, that as the power was conferred upon and exercised by the court as such, and especially as the officers when appointed were in some sense officers of the court, the cases were to be regarded as subject to those incidents which ordinarily attend judicial proceedings. That the court in appointing these commissioners act judicially was also asserted by Gardiner, president of the senate, in the case of Striker agt. Kelly, (2 Denio, 323). He says: “It might be objected with equal plausibility that the appointment of referees was an executive and not a judicial act. The referees it is true are officers of the court; but these commissioners are quasi officers, and may be compelled to perform their duty by attachment.”

The same judge in a subsequent case in this court, viz., In the Matter of Canal and Walker streets, (2 Kernan, 406,) used in reference to the same class of proceedings, the following language : “ If the law of 1813 enlarged the jurisdiction of the supreme court, which in effect was decided in Striker agt. Kelly, no other change was produced. The powers incident to its general jurisdiction so far as applicable, at once attached to the new subject. In administering this law as every other, the court would require the services of its officers, punish for contempt, issue attachments, use the buildings appropriated to the ordinary business of the. court, and set aside the' proceedings on sufficient cause.”

The principle to be deduced from these extracts obviously is, that where any. power is conferred upon a court of jus-' tice, to be exercised by it as a court in the manner and with the formalities used in its ordinary proceedings, the action of such court is to be regarded as judicial, irrespective of the original nature of the power. The legislature, by conferring any particular power upon a court, virtually declares that it considers it a power which may be most appropriately exercised under the modes and forms of a judicial proceeding. If, therefore, there were nothing whatever to characterise the proceedings in this case as in any respect judicial, except that they were had in the exercise of a power conferred upon the supreme court as a court, I should not hesitate to hold that they were subject to all the ordinary incidents of other proceedings in courts of justice.

But I regard the nature of the office as of no little importance in determining the question which arises here. In the cases to which I have referred, the courts have laid stress upon the fact, that the commissioners when appointed become officers of the court, and as such subject to its direction and control. This is an argument which applies with far greater force to the present case. Attorneys and counsellors are not only officers of the court, but officers whose duties relate almost exclusively' to proceedings of a judicial nature. And hence their appointment may with propriety be entrusted to the courts, and the latter in performing this duty may very justly be considered as engaged in the exercise of their appropriate judicial functions.

By a statute- of the state of Missouri, the supreme court of that State was authorized to strike from the rolls any attorney guilty of contempt, malpractice, &c. And the circuit court was empowered to suspend from practice any attorney guilty of any misconduct which, in the opinion of that court should be such as to justify his being stricken from the rolls. Under this statute, George Strothen, an attorney, was suspended by the circuit court of St. Louis county, for six months, by an order entered in the minutes of the court. Strothen brought a writ of error to the supreme court, and that court sustained the writ, and reversed the order of the circuit court. (Strothen agt. The State of Missouri, 1 Mi. R., 605.)

Again, the supreme court of the territory of Minnesota, before its admission as a state, was authorized by a statute of the territory to remove an attorney for wilful misconduct. Under this law, one David A. Secombe was removed by an order of the court, reciting the cause. Secombe thereupon presented a petition to the supreme court of the United States, praying for a mandamus to be directed to the territorial court, commanding such court to vacate the order. The mandamus was- denied upon the sole ground that the act of removal was a judicial act. Chief Justice Taney said : “ We are not aware of any case where a mandamus has issued to an inferior tribunal, commanding it to reverse or annul its decision when the decision was in its nature a judicial act.” (19 How. U. S. R., 15.) If the removal or suspension of an attorney be, as was held in these cases, a judicial act, it is difficult to see how the admission of an attorney is any the less so; especially when, as here, the court in the act of admission is required to pass not only upon the sufficiency of the evidence of certain facts, but upon the constitutionality and validity of a statute, and thus to exercise the highest judicial function ever entrusted to a court.

But in addition to the arguments and authorities already presented, there is another consideration which serves, as I think, very conclusively to show that the action of the supreme court in this case is not executive but judicial. There are no doubt certain governmental powers and functions which, although exercised by a court of justice, would nevertheless be purely administrative in their character. Such for instance is the power conferred by the Revised Statutes upon courts of common pleas, to grant licenses for keeping ferries; and such no doubt would be a power merely to select and appoint officers with duties having no connection with the courts, and who would not by their appointment become in any sense officers of the court appointing them. But there is a marked distinction between' such cases and that under review. In the act of licensing ferries the court does not pass upon a right, but simply exercises a discretion. The statute confers no right to á ferry upon any individual, whatever may be the circumstances. If it did, and the court was authorized to adjudicate as to the existence of the facts entitling the party to the right, its act in so doing would clearly be judicial. In regard to attorneys, the constitution confers the absolute right of admission upon every one possessing the requisite qualifications. The court is called upon to determine as to the existence of this right. It being ascertained that the applicant possesses the requisite qualifications, his admission follows as a legal necessity. It is certainly clear as a general rule, that whenever the law confers a right, and authorises an application to a court of justice to enforce that right, the proceedings upon such an application are to be regarded as of a judicial nature, and I am unable to perceive any just ground upon which the present case can be considered as an exception.

But it does not necessarily follow that the order is appealable. That depends upon the provisions of the Code authorizing appeals to this court. By sub. 3, of sec. 11, taken in connection with the previous portions of the section, it is declared that this court shall have jurisdiction' to review every actual determination made at a general term of the supreme court, “in a final order affecting a substantial right made in a special proceeding.” That the order under review is an actual determination of the court, that it is final, and that it affects a substantial right, will not be doubted. The only question which can arise upon this part of the case is, whether it was made in a “ special proceeding.”

By section 1 of the Code, remedies in courts of justice are divided into actions and special proceedings. Section 2 defines an action to be an ordinary proceeding, in a court of justice, and section 3 declares that every other pro- • ceeding is a special proceeding. As the application in this case could not by possibility be an action, it is of course a special proceeding, provided it is a remedy at all under section 1. What, then, is a remedy? The only judicial exposition of the subject appears to be that contained in a remark of Johnson, J., in Belknap agt. Waters, (1 Kernan, 477.) He says, “ The Code unfortunately has not furnished us a definition of a remedy, except in so far as one can be drawn from its distribution of all remedies into actions and special proceedings. It seems to regard every original application to a court of justice for a judgment or an order as a remedy. According to this interpretation, which I deem just, the application of the appellant to the supreme court was clearly a remedy. If we take the definition of the word remedy given by lexicographers, the result is the same. Bouviere defines remedy to be “ the means employed to enforce a right, or redress an injury.” This definition would clearly embrace the present proceeding; since every applicant has, as we have seen, an absolute constitutional right to admission, provided he is a citizen, and of the required age, character and ability, and the object of the application was to enforce this right.

It becomes our duty therefore to review the order of the supreme court denying the right of the appellant to admission as an attorney; and in doing so it will be assumed, as the court appears to have assumed, that the only objection to his admission was that upon which his rejection by the court was based, viz: The unconstitutional nature of the act of April 7th, 1860, under which the application was made.

Several objections to the validity of this act are suggested by the supreme court. The first is, that it makes the possession by a graduate of the law school of Columbia College of a diploma conferring the degree of bachelor of laws, the only prerequisite of admission to practice, while the constitution requires that the applicant, to be entitled to such admission, must be a male citizen of the age of twenty-one years.

If the act were necessary to be construed strictly according to its terms, this objection would perhaps prove to be well taken. Interpreted literally and by itself alone, it would seem in effect to declare that any graduate of the law school who has obtained a diploma under the circumstances mentioned in the act, shall be admitted to practice irrespective of age, citizenship and sex. But a construction which would bring an act of the legislature into direct and palpable collision with the constitution is not to be adopted without imperious necessity. It is never to be presumed that the legislature has violated the organic law. A strong presumption to the contrary, is indeed to be overcome in every case before a law can with propriety be declared unconstitutional. If, by the application of the established rules of statutory construction, it can be so interpreted as to harmonize with the constitution, this interpretation is to be adopted. One of these rules is that a statute is to be considered as passed in view of, and is to be construed in connection with the existing laws on the same subject. Another is, that we are to look at the general scope and design of the law, at the evil to be remedied, or the benefit attained; and so to construe the law as to accomplish the object the legislature has in view.

The motive for passing the act in question is apparent: Columbia College being an institution of established reputation, and having a law department under the charge of able professors, the students in which department were not only subjected to a formal examination by the law committee of the institution, but to a certain definite period of study before being entitled to a diploma as graduates; the legislature evidently, and no doubt justly, considered this examination, together with the preliminary study required by the act, as fully equivalent as a test of legal acquirement, to the ordinary examination by the court, and as rendering the latter examination, to which no definite period of preliminary study was essential, unnecessary and burdensome.

The act was obviously passed with reference solely to the learning and ability of the applicant, and for the mere purpose of substituting the examination by the law committee, of the college for that of the court. It could have had no other object, and hence no greater scope should be given to its provisions. We cannot suppose that the legislature designed entirely to dispense with the plain and explicit requirements of the constitution; and the act contains nothing whatever to indicate an intention that the authorities of the college should inquire as to the age, citizenship, &c., of the students before granting a diploma. The only rational interpretation of which the act admits is, that it was intended to make the college diploma competent evidence as to the legal attainments of the applicant, and nothing else. To this extent alone it operates as a modification of pre-existing statutes, and it is to be read in connection with those statutes, and with the constitution itself, in order to determine the present condition of the law on the subject.

Again: it is suggested that the clause in the act which makes a previous attendance upon the law'school for a certain definite period an indispensable condition of admission under the provisions of the act, brings it in conflict with the constitution.

This objection has far less weight than that just considered. The supreme court was no doubt correct in assuming that the constitutional provision was intended to deprive the courts of all power to require any particular period of study, as a necessary preliminary to admission to the bar; and to confer upon all male citizens of the requisite age, however short may have been their period of study, the.right to be admitted, if properly qualified. If the act in question should be found in the slightest degree to have abridged this right, it would be clearly invalid. By no reasonable construction, however, can it be made to have that effect. Students in the law school are under no obligation to avail themselves of the • provisions of the law. The wide door thrown open by the constitution is in no respect narrowed. They may retire at will from the law school and present themselves to the court for admission. No privilege, therefore, conferred by the constitution is taken away or impaired. Those who wish to avail themselves of the additional privilege afforded by the act must comply with its provisions. Although the legislature cannot limit a right given by the constitution, it may surely impose conditions upon privileges granted by itself. This is so plain as to admit of no debate.

But the most serious objection to the law and that upon which the judgment of the court below was mainly based, is, that the power to appoint or admit attorneys and counsellors is vested exclusively in the courts, and that in this respect the act in question is in conflict with the constitution and void. If such an exclusive power is vested in the courts, it must be derived directly from some specific provision or provisions of the constitution. It cannot be claimed as a part of the inherent power of the courts, or as resulting necessarily from these organizations as courts. To show this, it is unnecessary to go at length into the history of attorneys and counsellors as a separate class. It will be sufficient briefly to refer to the manner in which, prior to the constitution of 1846, they had received their appointments both here and in England. Barristers or counsellors at law, in England, were never appointed by the courts at Westminster, but were called to the bar by the inns of court, which were voluntary unincorporated associations. The power of the court to appoint attorneys as a class of public officers was conferred originally, and has been from time to time regulated and controlled in England by statute: 4 Hen. IV., ch. 18; 3 James I., ch. 1; 6 and 7 Vict., ch. 73, sections 27, 20 and 21; Vict., ch. 77, sections 40 to 45.

In this state, it seems that attorneys prior to the revolution were appointed by the governor of the colony (People agt. The Justices of Delaware, 1 John. Ca., 182). By the constitution of 1777, the power of appointing this class of officers was vested directly in the courts; but the constitution of 1822 was silent upon the subject, thus leaving the matter in the direction and control of the legislature, which at its next session passed an act requiring attorneys to be licensed by the courts in which they should respectively practice. It is plain, therefore, that -although the appointment of attorneys has usually been intrusted in this state to the courts, it has been nevertheless both here and in England uniformly -treated not as a necessary or inherent part of their judicial power, but as wholly subject to legislative action. I take no notice of the distinction between attorneys and counsel in the courts of this state, because the same principles in respect to the mode of appointment are of course applicable to both.

It follows from what has been said, that unless the constitution of 1846 has either expressly or impliedly conferred upon the supreme court, or upon the several courts the exclusive power claimed in this case, the whole subject of the admission of attorneys and counsellors was left as theretofore in the hands of the legislature, subject only to the constitutional provisions bearing upon it. Let us see then whether the exclusive power in question can be fairly derived from any provision of the constitution. The learned judge by whom the opinion was delivered, in the court below, has attempted to deduce it indirectly from sections 3 and 5 of article 6, which in effect organize and establish the supreme court, with substantially the same Jurisdiction it previously possessed. His argument is that by the constitution of 1777 the appointment of attorneys, &c., was given without limitation to the courts; that although the constitution of 1822 was silent on the subject, the legislature in the absence of any constitutional provision had by express enactment continued the power possessed by the courts under the previous constitution; and that, as the constitution of 1846 was adopted with full knowledge of the power possessed and exercised by the supreme court, the inference is that it was intended to confirm this power with such modifications and restrictions only as were inserted in the constitution. He refers to the familiar rule, that a statute which in some measure conflicts with a previous statute, but which it does not in terms repeal, simply abrogates so much of the former statute as is inconsistent with the new enactment, leaving the residue in force ; and that the effect of a new constitutional provision upon pre-existing statutes is the same.

In this, the judge is, no doubt, correct; but his inference that the power thus exercised by the supreme court is thus established so as to be beyond the control of the legislature is plainly erroneous. Upon this theory, such parts of our existing statutes as were not abrogated by the new constitution would be rendered thereafter unchangeable. The constitution of 1846 left, it is true, so much of the previous statutes on the subject of the admission of attorneys as did not conflict with its provisions in full force, but did not take away the power of the legislature to alter it. Indeed, the specific provision of the constitution on the subject of attorneys, in the connection in which it stands, bears much more the aspect of being designed to take power from the courts than to confer it upon them. The entire section reads as follows: “ They (i. e. the judges) shall not hold any other office of public trust. All votes for either of them for any elective office except that of justice of the supreme court or judge of the court of appeals, given by the legislature or the people shall be void. They shall not exercise any power of appointment to public office. Any male citizen of the age of twenty-one years, of good moral chai’acter, and who possesses the requisite qualifications of learning and ability, shall be entitled to admission to practise in all the courts of this state.”

The object of this provision is plain. Attorneys, solicitors, Ac., were public officers; the power of appointing them had previously rested with the judges, and this was the principal appointing power which they possessed. The convention was evidently dissatisfied with the manner in which this power had been exercised, and with the restriction which the judges had imposed upon admission to practice before them. The prohibitory clause in the section quoted was aimed directly at this power, and the insertion of the provisión respecting the admission of attorneys, in this particular section of the constitution, evidently arose from its connection with the object of this prohibitory clause. There is nothing indicative of confidence in the courts or a disposition to preserve any portion of their power over this subject, unless the supreme court is right in the inference it draws from the use of the word “ admission” in the section referred to. It is urged that the admission spoken of must be by the court; that to admit, means to grant leave, and that the power of granting necessarily implies the power of refusing, and of course the right of determining whether the applicant possesses the requisite qualifications to entitle him to admission.

These positions may all be conceded without affecting the validity of the act. The legislature has not taken from the court its jurisdiction over the question of admission, but has simply prescribed what shall be competent evidence in certain cases upon that question. It is not necessary, as seems to have been supposed by the court below, that the power to do this should be especially granted by the constitution. The general grant of power in section 1, article 3, embraces the entire legislative power of the state, which in itself is absolute and unlimited. Whether, therefore, the constitution contains a restriction upon this power in the particular case, is the only question which can ever arise in respect to any exercise of power by the legislature. There are, no doubt, some restrictions upon the power of the legislature to prescribe rules of evidence, as otherwise it might subvert some of the most valuable guaranties contained in the constitution. These restrictions have never been judicially defined, but they clearly do not reach the present case.

It will not be doubted, even assuming that the court had the exclusive power of “ admission,” that the legislature might have provided that the affidavit of the appellant should be evidence upon the question of age, or the certificate of some public officer upon that of citizenship. There is no substantial difference, in respect to the power of the legislature, between such cases and that under consideration. The diploma simply proves that the applicant has the requisite learning and ability, but leaves the facts in regard to the length of study, the age, citizenship, &c., of the applicant, to be inquired into and passed upon by the court in determining the question of admission.

But I see no good reason for holding that it was intended to refer even the ultimate act of admission exclusively to the court. If the constitution is to be so interpreted, then it is clear that the legislature, the legal profession, and even the courts themselves, have been greatly in error. The very next legislature after the constitution was adopted, in passing the judiciary act, assumed that the admission of attorneys and counsellors to practice, subject to the restrictions contained in the constitution, was left as before, in the hands of the legislature, and its action in this respect has been uniformly acquiesced in by both bench and bar. The supreme court itself has repeatedly ratified and confirmed this legislation, as it is by virtue of the judiciary act alone that it has exercised the power of admitting attorneys and counsellors to practice in other courts. There can be no pretence that the constitution invests the supreme court alone with this power. If the construction adopted by the court below is sound, the consequence must of course be that each court would have a right to admit its own practitioners. It would be difficult to find any theory in the constitution which, even by implication, could authorise it to admit attorneys, &c., to practice in the county courts or in the court of appeals.

I do not doubt, however, that the supreme court may, with propriety, be invested with this power, notwithstanding the clause which prohibits the judges from exercising any power of appointment to office. The admission of an attorney under the provisions of the present constitution, is not an appointment. Whenever an applicant is found to possess the requisite qualifications, the constitution, by its own inherent energy, appoints, i. e. it gives to the applicant an absolute title to the office, which is equivalent to an appointment. The word admission means, no doubt, as it has uniformly been interpreted to mean, something more than merely permitting the appearance of persons who may present themselves in particular cases claiming the right to practice. It is to be understood with reference to the long established custom of admitting and licensing attorneys, not for a single occasion, but generally; upon any other construction, every practitioner would be obliged to hold himself in readiness, at all times, to prove that he was possessed of the requisite constitutional qualifications, which would be extremely inconvenient and embarrassing to the administration of justice. No doubt some kind of formal admission was contemplated; but so far as I can see, that admission, under the provisions of the constitution, may as well have been by the governor, the attorney-general, or any other public functionary, as by the courts. There was a propriety, certainly, in investing the courts with the power > as the legislature has done; but this was a question of mere legislative discretion. My conclusion, therefore, is that the act under consideration is valid, and hence that the order appealed from should be reversed.

In regard to the constitutional question, all the judges concurred, except Comstock, Oh. J.—who' also, together with Dentó and Wright, judges, dissented from that portion of the opinion holding the order in question appealable.  