
    Maxwell v. The State, Knoxville. Colyar v. The State, Nashville. Dorion & Neely v. Fentress, Jackson. Cardwell v. The State, Jackson.
    The tax on lawyers imposed by the act of 1867-8, c. 4, s. 19, is invalid.
    The question of the constitutional exemption of lawyers from taxation was raised in 1871, in the case of Maxwell v. The State, at Knoxville, and of Colyar v. JEwin, clerk, at Nashville, and subsequently at Jackson, in the case of Cardwell v. The State, and in the present case.
    The case at Nashville was argued in 1871, by Messrs. Colyar, Eoote & Colyar, for. the plaintiff there, and by T. M. Steger and Attorney-General Heiskell for the State. The arguments in that case are inserted here. The opinion of Judge Baxter who tried the case in the Circuit Court at Nashville, was filed with the arguments of counsel for Colyar.
    The cases at Jackson were afterward argued orally by T. W. Brown and M. P. Jarnagin, and Attorney-General Heiskell for the State.
    Written arguments were filed by A. T. McNeal for Fentress, and John J. Dupuy, District Attorney, for the State.
    At the Sept. Term, 1873, Jackson, the Court delivered an opinion, but upon the petition of the Attorney-General for a rehearing, the judgment was suspended and was not finally rendered until the 25th day of October, 1875, when the opinion was delivered. The petition for rehearing has been lost and can not be produced here. Subsequently in the ease at Knoxville, the Attorney-General filed a written argument.
    Colyar, Foote & Colyar for plaintiff.
    The agreed statement of facts in this case sets forth that A. S. Colyar was an attorney at law, had been practicing law for more than five years, that he had obtained a license in the county of Franklin, in conformity with .the law, requiring a license to practice; that he was still engaged in suits contracted by him to prosecute, prior to the passage of the tax law on lawyers ; and it was further ■ agreed, that if the law taxing attorneys was unconstitutional, then the judgment should be for the plaintiff, and if not, then for the defendant.
    The law in question was enacted by the Legislature in March, 1868, and the succeeding Legislature increased the tax fifty per cent. There was also a county tax on attorneys at law, making in all a tax of forty-five dollars per annum.
    The question in this case arises upon the following clause of the Constitution: “The Legislature shall
    have the power to tax merchants, peddlers and privileges, in such manner as they may from time to time direct.”
    1. The profession of law was never intended by the framers of the Constitution, to come within the meaning of taxable “privileges.”
    2. The practice of law is not a privilege, but a right of which an attorney can only be deprived in the courts of the country.
    3. If the Legislature had the power at first to declare it a privilege, it had no such power, after all the requirements of the law — granting a license — had been complied with; then it became a vested right, only to be divested by process of law.
    The profession of law is a part of the judiciary system, and when the Legislature, in any manner interferes with it, it cripples the judiciary and strikes at a co-ordinate branch of the government.
    5. The grant of a privilege implies a right of prohibition. The practice of law can not be prohibited, therefore, it can not be taxed as a privilege.
    Upon our first proposition — that the framers of our Constitution did not intend that professions should be taxed as privileges — is evident from the words of the Constitution. “To tax merchants, peddlers and privileges.” If it is a privilege to practice law, is it not also a privilege to merchandize; and yet the convention thought the term hardly broad enough to cover the merchant. If to follow a profession is a privilege; is it not also a privilege to peddle? But the convention did not seem to think so. In fact, it is evident that the convention only meant by privilege, something of doubtful morality or expediency which the Legislature may prohibit at its pleasure. Evident from the fact that in every other kind of taxation — the Constitution fixes some limit or qualification, but over privileges, it gives the Legislature unlimited control. Evident from the fact, that in the published debates of the convention, the committee had inserted the word “occupation” with merchants, peddlers and privileges,” which was afterward stricken out by the convention.
    Second proposition. Nothing is a privilege, unless .the Legislature can prohibit it entirely. Farming is not a privilege, because you can not prohibit it by statute. Such are the ordinary pursuits of life, which every man has the absolute inherent and inalienable right to follow. A right, which all governments are formed for the purpose of defending. A right, which all laws are made for the purpose of protecting. A right, springing from native liberty, which vests in every human being. A right which no laws can fetter — no force destroy. The government which could by statute, rob me of my arm, would not be more tyranical than that, which could take away my trade. These are rights that vest, they may, by law, be regulated, but never abolished. They are open to every man, therefore, not privileges. But the profession of law stands upon much higher ground than these. These three points have been decided by the Supreme Court of the United States: “ That each court has vested in it by the common law, the power to admit and dismiss attorneys, regulated however, by a sound judicial discretion.” Ex parte Lecombe, 19 How.
    “Attorneys and counsellors are not officers of the United States, they are officers of the court, and they are responsible to it, for professional misconduct — they hold their office during good behaviour, and can only be deprived of it for misconduct ascertained and declared by the judgment' of the court, after opportunity to be heard, has been afforded.” Ex parte Garland, 4 Wall., 333.
    “ The attorney and counsellor being, by solemn, judicial act of the court, clothed with his office, does not hold it as a matter of grace and favor. The right which it confers upon him to appear for suitors, and to argue causes, is something more than a mere indulgence revocable at the pleasure of the court, or the command of the Legislature. It is a right of which he can only be deprived by the judgment of the court, for moral or professional delinquencies.” Ex parte Garland, 4 Wall., 333. “ That each court has the inherent right to regulate the terms of admission to its Bar.” Ex parte Magruder, 15 Am. L. R., 292.
    These decisions, taken together with the position of our Supreme Court, that, “a privilege must be an exception to a general prohibition,” we think settles the question upon this point.
    Third proposition. Here is an attorney who has already complied fully with all the requirements of the law, who has gone before the County Court and shown a good moral character, and that he was of legal age —then presented his certificate of the same to two judges of the State, and passed the examination required by law, and he comes into the several courts, exhibiting his license from the judges, is sworn in and permitted to practice — in all of the courts of the State. Is not the agreement between him and the State complete ? Is it not clothed with all the essential requisites of a contract? And does not a subsequent law, prohibiting him from practicing, or imposing burdens that did not exist when he obtained his license, impair the obligation of a contract?
    Fourth proposition. The profession of law has been a part of the judiciary from time immemorial, the judges have been assisted in the discharge of their duties, by a class of gentlemen called lawyers. Our convention, with a knowledge of this fact, provided in our Constitution, for courts, saying that they shall be kept open to hear causes, etc. Now, it would be simply ridiculous to keep the court open to transact business without the assistance of lawyers. To create a court without granting the incidents necessary to transact the business is absurd. “Attorneys and counsellors are not only officers of the court, but officers whose duties relate almost exclusively to proceedings of a judicial nature.” 22 N. Y., 81, and ex parte Garland, 4 Wall., 333.
    In fact, this doctrine is upheld by all the authorities, and if this be true — that the lawyer is a part of the judiciary — does not the Legislature strike directly at a co-ordinate branch of the government, when it undertakes to prohibit him from practicing? Loes it not come in direct conflict with our Constitution, one of the fundamental principles of which is to throw around each branch of the government certain protection — barriers that can not be surmounted, by which one department of the government may encroach upon another.
    Fifth proposition. And lastly, we come to what we consider our stronghold in this lawsuit. All that has been before said, and all that comes after, must be taken in connection with this fact, which is true in law and fact, that “A privilege is an exception to a general prohibition,” this is given by all the authorities as the legal definition of a privilege. “A privilege is a license granted to do anything which is prohibited by the general law ”: 1 Hum., 94.
    “It was formerly held, that if a statute only annexed a penalty to the performance of certain acts or contracts, without expressly prohibiting them, the penalty was to be considered, not as a penalty or prohibition, but only as a tax, which would not invalidate the act or contract, but' only subject the party infringing the provision of the statute to the payment of the penalty. But this doctrine, as we have already seen, has long since been exploded; and it is now well’ settled, that a penalty implies a prohibition, though there be no prohibitory words in the statute; and an agreement in violation of a statute prohibitory or enjoining an act absolutely, or under a penalty, can not be enforced ” : Story on Contracts, 140. This position is sustained by Drury v. Defontaine, 1 Taunt., 136; Bartlett v. Vinor, Carth., 252; Skinner, 322; De Begnis v. Armistead, 10 Bing., 110; Bensley v. Bignold, 5 Barn. & Aid., 335; Nichols v. Buggies, 3 Bay, 145; Tyson v. Thomas, 1 McLel. & Young, 119 S. P.; Foster v. Taylor, 5 Barn. & Aid., 487; Little v. Pool, 9 Barn. & Cres., 192; Fennell v. Biler, 5 Barn. & Cres., 406; S. C., 8 Bowl. & By., 204; Smith v. Sparrow, ' 4 Bing., 84; Kepner v. Keefer, 6 Watts, 231; Clarke v. Protection Ins. Co., 1 Story, 119; Gallini v. Laharie, 5 T. B., 242; King v. Handy,' 6 T. B., 286; Wheeler v. Bussell, 11 Mass., 258; S. P., Law v. Aodgson, 2 Camp., 147 ;• S. C., 11 East, 300; Foster v. Taylor, 5 Barn. & Aid., 889. See also, Springfield • Bank v. Merrick, 44 Mass., 322; Hunt v. Knickerbocker, 5 Johns., 527; Parkin v. Lick, 11 East, 302; Fales v. Mayberry, 2 Gall., 560; Mitchell v. Smith, 1 Binn., 110; Bussell v. Degrand, 15 Mass., 35. See also Bibbans v. Cricket, 1 Bos. & Pul., 264; Camden v. Anderson, 6 T. B., 723; 1 Phillips on Ins., ch. 3, § 2; 1 Com. on Cont., 30, 16, 1st ed.
    All these authorities go to show that where a penalty is fixed in a statute, it implies a prohibition. And in the very nature of things, there must first be a prohibition, before there can be a privilege. The prohibition is the test and boundary of taxable privileges, and by it the Legislature is to measure its power over privileges. If they can not prohibit anything altogether, then they can not declare it a privilege, and tax it as such. Then, we think the long array of authorities above given, together with all the decisions of our own Supreme Court, wherever it has touched upon the point, ought to .settle beyond all question this; that in order to tax anything, as a privilege, the Legislature must first have the power to prohibit it.
    Now, let us see, if the Legislature has the power, to prohibit the practice of law. We say the Legislature can not prohibit the practice of law; because it is a duty solemnly enjoined, and a right specifically given and guaranteed to the profession, by our Constitutions, both State and Federal, and can not, therefore, be taken away by legislation.
    “That all courts shall be kept open, and every man for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay ” : State Constitution, Declaration of Rights, s. 17. By all the books, the attorney is recognized as an officer of the court, and consequently a part of the court, indeed, the very term “court” means judge, lawyers and jury. The judge alone does not constitute the court. It would be impossible to keep the court open and transact business, without the attendance of attorneys. “The trial of all crimes, except in cases of impeachment, shall be by jury: ” Constitution United States, art. 3, s. 2. “That the right of trial by jury shall remain inviolate”: State Const. Decl. of Rights, s. 6.
    Now, all our ideas of a jury trial associate judge, jury and counsel together. In fact, it is impossible — under our system — to conceive of a jury trial without counsel engaged in it, and the very first thing done in a criminal cause, is to appoint counsel to defend the prisoner — if he is unable to employ counsel, and he can not be forced to trial, without counsel to assist in his defence. Why ? Because the assistance of counsel is one of the rights of a jury trial.
    “ In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed,' which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation, to be confronted by the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.” 6 Amd. to Cons. U. S.
    The above was thought so necessary and important, that it was added to the Constitution in the shape of an amendment, and is a constitutional definition of jury trial. Now, it was thought that every thing contained in the above amendment was absolutely necessary to a jury trial. It was thought not enough to say that the “ accused should have the right of jury trial.” But they went further and defined a jury trial, showing all the things meant, and all the rights included in a jury trial, and now can the Legislature take from the accused any of these rights, specifically defined by the 6th amendment. And if the Legislature were to take away any of these rights of the jury trial, does it not “violate the right of jury trial.” And is not counsel especially named by this amendment as one of the ■ rights of a jury trial.
    In our State Constitution we have nearly the same definition of a jury trial; “ That in all criminal prosecutions, the accused hath a right to be heard by himself and counsel, to demand the nature and cause of the accusation against him, and to have a copy thereof, to meet the witnesses face to face, to have compulsory process for obtaining witnesses in his favor, and in prosecutions by indictment or presentment, a speedy public trial, by an impartial jury of the county or district in which the crime shall have been committed — and shall not be compelled to give evidence against himself.”
    Can the Legislature deny to a criminal the assistance of counsel for his defence ? If they have not constitutional power to do this, then can they prohibit all lawyers from practicing law. If they can not, they can not tax the practice as a privilege, because as we have shown, to give the privilege to a few, they must have the power to prohibit it to the many.
    
      Opinion delivered by Judge Baxter in the Circuit Court at Nashville, 1871.
    In the year 1846, A. S. Colyar, the plaintiff, was regularly licensed, according to the laws then in force, to practice law in all the courts of law and equity in the State of Tennessee. He entered upon the practice of law immediately thereafter, and from thence, hitherto has pursued it as a profession, and for a livelihood. On the 13th of March, 1868, the Legisture passed a law in these words: “All lawyers who set themselves up as practicing attorneys, and who have been practicing the profession for five years, shall respectively pay a “ privilege tax of fifteen dollars.” By subsequent legislation, the tax has been increased to forty-five dollars, and under and by virtue of. this law, the defendant as Clerk of the County Court of Davidson county, demanded .of the plaintiff, A. S. Colyar, the tax aforesaid, which the plaintiff paid under protest, denying the constitutionality of the law, and the right of the defendant to demand the tax. Upon an agreed case, it is admitted that Col. Colyar comes within the provisions of the law, and is bound to pay the tax, if the law is constitutional, and on the other hand, if the law is unconstitutional, he is entitled to a judgment against the clerk, for the amount paid.
    The power of the Legislature to tax lawyers upon their income, or in any other manner that other vocations, professions, trades, or pursuits in life, may be taxed, is conceded, except only as a privilege. But it is denied that the practice of law is a privilege, or that the Legislature has the power to make it such, or tax it as such; and the Legislature having attempted in express terms, to impose the tax upon the privilege of practicing law, it has transcended its authority, and its action is void.
    This is the position assumed by the plaintiff, and denied by the defendant, and consequently the issue is narrowed to the single question, whether under the Constitution and laws of Tennessee, the practice of law is a privilege, within the legal meaning of that term, as it is used in the Constitution. The solution of this question is only to be found in a clear and exact understanding of the meaning of the word “ privilege,” as used in the Constitution, and in connection with our revenue laws; and of the rights of lawyers, and practicing attorneys, as they exist under our Constitution and laws; his status in our civil polity, and his relation to the machinery of government and the judiciary department thereof.
    Then what is a “ privilege,” which the Constitution allows the Legislature to tax ? The Constitution itself furnishes no definition of the term, but leaves the Legislature to such sources of information upon this subject as may be accessible. The Legislature has from time to time, acted in specific cases, by imposing'a tax on particular vocations as privileges, without, however, attempting to define the principle by which it was governed, or lay down any general rule, by which we can in all eases, determine what is a privilege and what is not. The Supremo Court, however, has gone further, and has endeavored to furnish a rule or definition, by which it may be determined. In the case of French v. Baker, 4 Sneed, 193, Judge Caruthers delivering the opinion of the Court, holds this language: “ The first Legislature, after the formation of the Constitution, acted upon the idea, that any occupation which was not open to every citizen, but could only be exercised by a license, from some constituted authority, was a privilege; and it is presumed this is the correct definition in this application of the term. In Robertson & Eldridge v. Heneger, 3 Head, 257, the Court say: “ Is it a privilege by our law to exhibit a circus or menagerie? ' It can only be lawfully done by obtaining a license to authorize it. It is then a right not open to all, but only to such as are empowered by license from the proper authority. In May. and Ald. of Columbia v. Guest, 3 Head, 413, the Court say: “ What are privileges, is a question of construction dependent upon the general law. We have defined it in several cases, to be the exercise of an occupation or business, which requires a license from some proper authority, designated by a general law, and not open to all, or to anyone without such license.”
    From these definitions, I understand that to make an occupation a privilege, it must in the first instance, by general law, be prohibited to all persons, in other words made unlawful. The Legislature, may then for purposes of revenue, authorize the sale of dispensations to such as will purchase them, at the price fixed; and upon payment of the price to the proper revenue officer appointed to receive it; that officer gives to the party a license, authorizing him to pursue the ■occupation, notwithstanding the general law forbidding it. This dispensation or right, thus acquired under the license, is a privilege, and the price paid for it, is the tax upon the privilege, authorized by the Constitution. Then the power of this Legislature, to make an occupation a privilege, must depend upon the power ■of the Legislature, to prohibit the occupation altogether, and blot it from the catalogue of lawful pursuits forever; for if the Legislature has the power to prohibit it to all, it must of necessity, be within its discretion, whether it will afterward grant an exemption to any, upon any terms. In other words, it implies the power to abolish the occupation entirely, and indefinitely..
    This view relieves the controversy of every question, but this: Has the Legislature the power under the Constitution, to abolish the practice of law entirely and forever, so as to make it unlawful for any man, under any circumstances, to practice law in this State? The British Parliament could do it. It could abolish the Courts of England. There is no right or interest, public or private claimed by a British subject, that can defy the omnipotent power of the British Parliament. But that is easily understood, where it is remembered, that the whole sovereign power of the people of the British Empire, has been delegated to Parliament. And if the people of Tennessee, had delegated to the Legislature, the whole sovereign power which they possessed as a State, the Legislature of Tennessee would be as omnipotent as the British Parliaments. This, however, they have not seen proper to do. Over many subjects, they have delegated their sovereign power to the Federal Government. Over many other subjects, they have reserved it to themselves, and have not delegated it to anyone. The residue of the power, after deducting what has been delegated to the United States, and what has been reserved to the people themselves, they have distrib- . I uted to three separate and distinct departments of the government of Tennessee. The second article of the Constitution, provides that .“the powers of the government shall be divided into three distinct departments; the legislative, executive, and judicial, and no person or persons belonging to one of these departments, shall exercise any of the powers properly belonging to either of the others, except in cases herein directed or permitted.” The Legislative authority of this State, shall be vested in a General Assembly, consisting of a Senate and House of Representative. The supreme executive power, shall be vested in a Governor, and the judicial power of the State, shall be vested in one Supreme Court, and in such inferior courts as the Legislature shall from time to time, ordain and establish, and in the judges thereof. It is seen then that the Legislature, the Governor, and the courts and judges thereof, are co-ordinate, independent, and distinct departments of the government, each deriving their powers and authority directly and immediately from the people. They are three separate agents of the people, to each of which, the people have assigned their separate and respective duties, and have clothed them with such powers as are necessary for the performance of those duties, and have forbidden each to trench upon, or interfere with the others.
    When the people in convention established courts, and clothed them with the judicial power of the. State, in the absence of any expression of a contrary intention, they are to be presumed to have intended, such courts as had previously existed in Tennessee, and other states and countries, whose civil polity most nearly resembles our own, and who have adopted the common law of England.
    They must have intended, that the judges of those courts, should be men learned in the law; men edueated and trained in the science, as well as in the art of practicing the law. Such had been the unbroken usage in Tennessee, since the earliest period of her judicial history; such had been the usage in all the sister states of the American Union, and of the Federal Government; and such had been the usage of England time out of mind. All lawyers know, all judges know, and all other intelligent men know, that no other class of men, than trained practical lawyers, are qualified to discharge the duties, and exercise the powers, pertaining to the judicial department of a government and state like that of Tennessee. It was equally well known to the framers of the Constitution, that it had been the usage of this State, and of all civilized countries, where law is judicially administered through courts of justice, for centuries past at least, for the courts in the discharge of their official duties, to be aided and assisted by lawyers. It is a familiar principle of law, that the grant of a thing, passes the incident as well as principle; though the latter only is mentioned, and consequently where the framers of the Constitution, vested the judicial power of the State in' the courts, it is to be implied, that with the grant of the power, they intended to grant also the means necessary, to the full and complete exercise of the power. In other words, it is not to-be presumed that they would have been guilty of so gross a folly, as to have organized a judiciary department, and clothed it with the judicial power of the State, and then to have left it without the means to execute the power, and more especially, when no other provision has been made for its execution, and when the exercise of it, has been expressly prohibited to both of the' other departments, by the advice and physical labor of a class of men known as lawyers, or attorneys at law, or counsellors, etc.; men educated and trained to the preparation, conduct, and management of suits in court; men who prepared the pleadings, and presented a clear statement to the court in writing, of the cause of action on the one hand, and the ground of defence on the other, examined the witnesses, developed the evidence, and produced the authorities governing the case, and without whose assisance, courts of justice would be utterly incapable of answering the ends of their creation. Take the lawyers out of the courts, and you take the life out of the body. It would be quite as sensible to create an army of generals without subordinates or soldiers; nothing practical or effective could be accomplished in either case. The courts having been established by as high authority as the legislature itself, it will not be pretended by any one, that the legislature has power to abolish the courts directly, yet if it be conceded that it may abolish the practice of law, and turn the lawyers out of court, then. it is conceded that the legislature has the power' by. indirection, to destroy their capacity to fulfill their destiny, and the object of their creation. But lawyers have some rights of their own, independent of being a court’s necessity.
    The people when framing their Constitution, created the office of Attorney-General for the State, and of District Attorneys for every circuit or district, of which a judge having criminal jurisdiction, shall be provided by law. The framers of the Constitution intended these offices . should be filled by lawyers; no other class of men are qualified to do it, no other class have ever filled them, nor can they be filled without practicing law. The practice of law is the principal duty for which they are created. If you deprive those officers of the right to practice law, you in effect abolish the office itself. But no sane lawyer will allow that the legislature has the power to abolish an office created by the Constitution itself, unless the Constitution has expressly conferred upon it the power to do so.
    The Constitution provides, that in all criminal cases, the accused hath a right to be heard by himself and by his counsel. In the face of this provision, can the legislature deprive the citizen, who has been charged with crime, of the right to be heard by-counsel? But if it can abolish the practice of law, how is the accused to be heard by counsel, when the very act of defending the accused is the act of practicing law.
    No person shall be put to answer any criminal charge but by presentment, indictment or impeachment.
    An indictment under our practice, must be signed by the Attorney-General, and the very act of framing and signing an indictment, is an act of practicing law. So we see that the attorney at law and counsellor, have a distinct constitutional recognition, with provisions made for them, not only to serve the state, as Attorney-Generals and judges, but also to serve the accused in his defence.
    The case Ex parte Garland, decided by the Supreme Court of the United States, and reported in 4 'Wall., 335, came before that Court, at a time, and under circumstances, unfavorable to the cases so that the Court could not have been biased, by any leaning in favor of Garland. The case was argued by eminent lawyers, and with distinguished zeal, and ability on both sides, and was heard and decided by the Court, with due consideration. The Court in that case say: “ The profession of an attorney and counsellor, is not like an office created by an act of Congress, which depends for its continuance, its powers and emoluments, upon the will of its creator, and the possession of which, may be burdened with' any conditions, not prohibited by the Constitution.” Attorneys and counsellors are not officers of the United States, they are not elected, or appointed, in the manner prescribed by the Constitution, for the election and appointment of such officers; they are officers of the court, admitted as such by its order, upon evidence of their possessing sufficient legal learning, and fair private character.” The attorney and counsellor, being by solemn judicial act of the court, clothed with his office, does not hold it as a matter of grace ánd favor. The right which it confers upon him, to appear for suitors, and to argue causes, is something more than a mere indulgence, revocable at the pleasure of the court, or at the command of the legislature. It is a right of which he can only be deprived by the judgment of the court, for moral or professional delinquency.
    In the case of Smith v. The State, 1 Yer., 228, the whole proceeding was based upon the idea, that a lawyer can not be deprived of his right to practice law, except upon the ground that he has been guilty of some crime, or other misconduct, and not then until he has been regularly charged with the specific offence, and allowed an opportunity to be heard in his defence. He must upon fair trial, be judicially convicted of some crime or other immoral or professional misconduct, and cannot be silenced at the mere arbitrary discretion of the court.
    The case of Ingersoll v. Howard, 1 Heis., 247, cites with approbation, the case of Ex parte Garland, and the case of Champion v. The State, 3 Col., is to the same effect.
    
      In view then of the common law rights of the attorney at law and counsellor; in view of his past history, as associated • and connected with the courts of justice; in view of the fact,' that no tribunal of justice, charged with the judicial administration of the law, in any country where it is administered according to the forms and usages of the common law, has ever presumed to proceed to the discharge of their high and responsible duties, unaided by his assistance, unadvised by his counsel, and uninstructed by his learning; and in view of the fact, that the framers of the Constitution have expressly provided, that the State shall be protected in her interests, and that the accused in criminal cases, shall never be brought to trial before the court, unsheilded by his advice, counsel and assistance, who can suppose that it ever was for a moment, contemplated by the framers of the Constitution, that the legislature, or any other department of the government, should have the power to blot them out of existence. This power is one of the powers reserved to the people themselves. When they speak then the lawyer in common with all others, must obey ■ their fiat. But it may be asked, have not lawyers always been required to obtain a license to practice law; and does not the law provide, that no person shall practice as an attorney or counsel, in any of the courts of this State, without a license; and it may be asked, is that statute also unconstitutional? The first answer to these questions, is, the power to regulate does not imply a power to abolish or prohibit. The legislature has the power to regulate in a reasonable manner, not only the lawyers, but the courts likewise. It may define the jurisdiction of the different courts, fix the time and places for their sittings, prescribe rules of practice and of pleading, and regulate the conduct, and prescribe the qualifications of the lawyers. It may exercise a general superintendence over courts and lawyers, and within certain limits, may direct and control them; as a master may direct and control the conduct of his servant, or a father the conduct of his child; but he may not kill him, nor maim him, nor otherwise destroy him.
    The Legislature has very properly prescribed, that a lawyer shall be twenty-one years old, that he shall take an oath to support the Constitution of this State, and of the United States, that he shall be a man of good reputation, and of sufficient legal acquirements to qualify him for the duties of the profession; and what we call a law license, is simply a certificate that he possesses these qualities, and the license, (so called) is recognized by the courts, as legal evidence, and sufficient evidence, prima facie, to establish the facts. But the license, so called, is not any authority for him to practice law. Before he can be licensed into court as one of its officers, with authority to practice law therein, he must make application in open court, and submit his qualifications to the judgment of the court, which judgment is based upon evidence, and is not a matter of capricious discretion with the judge. The license upon this trial, will be received as evidence, in support of his qualifications, and in the absence of any counter evidence, or any suspicious circumstances, will be regarded as sufficient evidence. But if counter evidence were offered; as that he was not twenty-one years of age, that he was a man of notorious bad character, or that he was deficient in the required amount of law training, the court would hear the proof, and if satisfied of its truth, would refuse the application, notwithstanding the law license, or certificate that he had the qualifications. But when there is no counter proof, or where the court upon hearing all the proof, is satisfied that the applicant possesses the qualifications required by law, the court then adjudges upon the evidence, that he has a right to practice law in that court, and orders that’ he be enrolled upon the roll of attorneys.
    I have taken this 'brief notice of a law license, to show that the analogy between it and a revenue license, ends with its name. They possess no other attributes in common. The one is a dispensation from the operation of a general law, the other is simply a certificate, or evidence that the possessor has complied with the law, which does not prohibit the practice of law to any, or make it unlawful as an occupation, but leaves it open to all, only requiring of its votaries that they conform to the regulation.
    There is no right we enjoy so absolute, but that the legislature may prescribe reasonable regulations for its exercise. The right of locomotion, itself, which is perhaps as absolute as any, may be, and is regulated by law; for “we must also use our own, as not to injure another’s.” But to prohibit locomotion entirely, would be imprisonment, and the most intolerable oppression. It is not a privilege in the sense of the Constitution, to pursue an occupation, because the legislature may-have prescribed qualifications, which some men in a state- of nature do not possess, and therefore, in one sense, may not be open to all. If the Legislature were to enact, that un-educated men should not teach school; that would not make it a privilege to those who were educated, in the sense of the revenue laws. To make school teaching a privilege in that sense, it must be prohibited to all, without regard to qualification; and permitted only to such as will purchase a dispensation, or exemption, by paying the required revenue into the coffers of the State. And this is called a tax upon privileges.
    The view I have taken of the meaning which the framers of the Constitution .intended should attach to the word “privilege,” as used in the Constitution as a subject of taxation, and of the rights intended to be conferred upon the judicial department of the government, the constitutional status and common law rights of the attorney at law; brings me to the conclusion, that the Legislature has not the power to prohibit or make unlawful the practice of law, and in the absence of such power, it can not make it a privilege subject to taxation. My judgment, therefore, upon the agreed fact is for the plaintiff.
    T. M. Stegeb for the defendant said:
    The agreed statement of facts raises the single question, is the 16th paragraph, 5th section, chapter 79, of the revenue act of March 15th, 1868, unconstitutional ?
    It is only necessary for the defendant to show a statute under which the tax in question was collected, and that the tax was collected in accordance with the statute, both of .which are admitted in this case. The burthen is then upon the plaintiff to show that the statute is unconstitutional.
    Upon' ‘this point the Court has said in Pepper v. Willis, MS. Nashville, December, 1871, “The question, it is said, whether a law is void for repugnancy to the Constitution, is at all times a question of delicacy, which ought seldom, if ever, to be decided in the affirmative in a doubtful case. The opposition be-
    tween the Constitution and the law should be such, that the judge feels a clear and strong conviction of their incompatibility with each other.” So then the burden is upon the plaintiff to show clearly, and beyond a doubt, that the law in question is a violation of the Constitution, or judgment must be rendered for the defendant.
    The defence assumes the following propositions:
    First. The Constitution authorizes the taxation of privileges at the discretion of the Legislature. “ But the Legislature shall have power to tax merchants, peddlers and privileges, in such manner as they may from time to time direct.” Constitution, art. 2, s. 28.
    The practice of the law is a privilege:
    1. Because it is not a natural, nor common law right, but created by, and entirely dependent upon statute. “It is not of common right” but “generally prohibited,” and can only be exercised after complying with statutory conditions, and “obtaining license from the proper authority.”
    2. Because the Legislature has created and declared the practice of the law to be a privilege.
    Second. Under the general power of' taxation, the Legislature may tax occupations at discretion, unless prohibited by the Constitution, and there is no provision of the Constitution which protects lawyers from tax.
    Let us .examine these propositions separately — -upon the first point, the defence maintains that there is no such thing as a natural right to practice law. An “ attorney at law,” is entirely a creature of statute. The practice of law is a privilege, created by statute; held under statute, and according to the terms and conditions prescribed by statute. No attorney did, or could practice under the common law, and the courts had no power to admit him.
    For the status of attorneys from their first appearance under the common law, the Court is respectfully referred to the brief of T. W. Dwight, in Cooper’s case, 22 N. Y. Rep.
    In order to prevent the multiplicity of law suits, it was the policy of the common law, that both plaintiff and defendant should appear in person, in all actions. The justices sometimes allowed one to act for a party in his presence, such person was called a responsalis. There was no restriction as to the character of this person: 1 Reeve’s Hist, of Eng. Law, 169, and authorities cited. Lord Coke calls special attention to the difference between a responsalis and an attorney, and says “ the introduction of attorneys was a great and lamentable innovation on the common law: ” 2 Coke Inst., 249, 250. Though the justice could not permit a person to appear by attorney, the King by his prerogative might appoint an attorney and give any person a right to appear in this manner. Letters patent would issue out of Chancery, or under the privy seal, commanding the justices to admit a person named, as attorney for another, in regard to a particular suit in question: Bacon’s Abridgment, Title Attorney, part 1, and authorities cited. These letters were usually granted for some special reason, such as absence and sickness, although the authority might be general, and was entirely at the pleasure of the King; Coke upon Littleton, 128a, s. 196. After the passage of the first statute ever passed for the admission of- attorneys, in the year 1275, which only admitted them in certain cases specified, the writs from the King continued in use, to reach cases not provided for by the statute. A copy of one of these writs is given in the brief of Theodore W. Dwight, in Cooper’s case, 22 N. Y. Rep., cited from the Register of Writs, page 22. . This writ shows that an attorney was only an “'attorney in fact,” and closes with these words; “ Let not this concession of ours be drawn into a precedent,” signed by “the King himself.”
    These writs were in frequent use, bfit without letters patent, attorneys could not exist at common law. The Mirror of Justices says, “ it is an abuse to have an attorney except by a writ out of Chancery.” No. 100, Abusions of the Law. Lord Coke adopts the sentiment in 2 Inst., 220. As I have stated, the power of clients to appoint attorneys in certain cases, was first conferred by statute in England in the year 1275: "Westminster 2, 3 Edward I. c. 42. The object of this statute was to confer the right to appear by attorney, in certain cases, without applying to the King. “In this way the King gave up fees which he used to possess, when he could command the justices to admit an attorney: ” 2 Reeves Hist. Eng. Law, 169; 2 Coke’s Inst., 377-8. In 1319, 12 Edward II. ch. 1, it was enacted that a tenant in possession might appear by attorney. In the Year Books, (1348,) 21 Edward III. the demandant appeared by attorney. Seaton, J., asked, “ How can you appear by attorney -when you have nothing in the tenancy?” Counsel, “It is the common course whether one is demandant or tenant.” Hill, J. “At common law, neither tenant nor demandant could appear by attorney, but only by bailiff. By statute it is ordained that a tenant can appear, but it is not ordained that the demandant can.” The attorney was therefore excluded: Beecher’s case, 8 Coke Rep., 58, as well as many cases in the Year Books, held it to be incompetent for a pai’ty to appear by attorney in a case to which the statutes did not extend. Judgments would go by default against a person who appeared in this manner without the authority of the statute.
    The character and qualifications of an attorney were not at involved by these statutes. He was simply an “attorney in fact.” In 1290, 20 Edward I. he directed the justices to provide and appoint according to their discretion, attorneys in every county. Seven score he thought enough for all England, but the justices in their discretion might increase their number. Beeves regards this ordinance as having first conferred upon them the right to practice: 2 Hist. Eng. Law, 285. In the reign of Edward II. the power was taken away from every one except the Chancellor, and Chief Justices, thus showing that the matter was regarded as simply an appointment to office. This idea grew out of the limitation of their number by the ordinance of Edward I.
    The act 1403, 4 Henry IV. c. 18, is the model act, for the admission of attorneys, upon which all subsequent legislation is formed. This act recites the evils growing out of the former system, and provides that “all attorneys shall, be examined by the .justices, and that by their discretrion, their names shall be put on the roll, and that they be good and virtuous, and of good fame, and be received and sworn, well to serve in their offices, and the other attorneys shall be put out by the discretion of the justices, and if any of the attorneys do die, the justices shall make another in his place.” Attorneys now for the first time go on the roll; they become attorneys of record, and cease to be mere attorneys in fact: 1 Boll., 3 “ The placing of attorneys on the roll was a new measure now found to be necessary:” Crabb Hist. Eng. Law, 351. Various statutes were afterwards passed in England in regard to attorneys, showing that their admission and qualification was purely statutory, and that they were regarded as under the control of the legislature: 3 Eeeves Hist. Eng. Law, 284; Barrington on Stats., 20.
    “By the act of 1715, c. 31, s. 6, the Common Law of England is declared to be in force in the colony of North Carolina. The act of 1778, e. 5, s. 1, declares that the English Common Law and Statutes of England, then in force and use, should continue to be in force and use, unless inconsistent with the freedom of the state and the form of Government. The Constitution of the State of Tennessee, art. 10, s. 3, provides that all laws then (1796) in force, not inconsistent with the Constitution, should continue in force until altered or repealed: ” Fields v. State, M. & Y., 171. The same provision is continued in New Constitution, art. 11, s. 1.
    
      Smith v. Tennessee, 1 Yer., 228, Catron, J., delivering the opinion, says: “ Much inquiry has been made into the powers of the courts to remove attorneys : if the old statute of Henry IV had been examined, that which has been searched for and found obscurely hinted at in so many authors, could have been found in a short paragraph, * * * *
    “This statute has received the sanction, of four centuries, without alteration, and almost without addition; governing a profession more numerous and powerful (when applied to counsel also, as in most of the United States,) than any known to the history of the world, without complaint of its provisions, or abuse of power on the part of the court, in its exercise, so far as the judicial history of England or America furnishes instances. It is remarkable, that there is not a provision in any act of Assembly of Tennessee upon the subject, but what is in strict affirmance of it; nor does a single statute go beyond it.”
    If then the practice of law is not a natural nor common law right, but results only from statutes, and can only be exercised upon the terms prescribed by statute; let us see how the attorney stands in reference to the statutes of Tennessee.
    1. Code, 3965. Prohibits the practice of the law without license. It is in these words: “No person shall practice as an attorney or counsel in any of the courts of this State, without license, obtained for that purpose, and without first having taken an oath, in open court, to support the Constitution of the State, and of the United States, and to truly and honestly demean himself in the practice of his profession, to the best of his skill and abilities,” taken from act of 1798, c. 1, ss. 2, 3, and 1809, c. 6.
    2. Code, 3966. The applicant for license shall produce a certificate of the County Court, of his residence, that he is 21 years of age, and of good moral character.
    3. Code, 3967. The applicant must be examined as to legal acquirements.
    4. Code, 3968. Persons from other States may obtain license upon examination, and evidence of good moral character.
    5. Code, 3969. Judges, Chancellors, Clerks and Deputies, are prohibited from practicing.
    6. Code, 3970. Courts may strike from the rolls any person not authorized to practice, and also any practicing attorney or counsel, upon evidence of misdemeanor, acts of immorality or impropriety, such as are inconsistent, or incompatible’ with the faithful discharge of the duties of his profession.
    7. Code, 3975. An attorney who offers to testify as to confidential communications of his client, etc., may be stricken from the rolls, etc.
    8. Code, 3976. Summary action is given to client against attorney, for failing to pay over money collected.
    9. Code, 3977. If an execution issued from a judgment against an attorney for. money collected by him, is returned not satisfied, it ■ is the duty of the court to strike the attorney from the rolls.
    These extracts from the statutes show:
    1. That the practice of law is prohibited by a general law.
    2. That no person can • practice law in this State without having obtained license.
    3. That the practice of law is entirely a statutory, and personal privilege, extended, without consideration, and by favor of the government, to all those who desire to avail themselves of it, and comply with the prescribed conditions; that the qualifications required for admission to the bar, are only such as it is the moral and legal duty of every citizen to have, and which are to result only to his own private advantage.
    None of the essential elements of a contract are to be found in the grant of a license to practice law. .There is no engagement between the State, and the applicant for license, that he will follow the practice of the law for a livelihood; no legal consideration is paid the State for a license. The grant of a license is the mere naked grant of a privilege without consideration, which the applicant may or may not at his option avail himself of: Simmons v. State, 12 Mo., 271.
    “The practice of the law is valuable to the possessor only. It cannot descend or be inherited, bought or sold, transferred or conveyed, can be divested and destroyed by a mere order of the court, is subject to forfeiture by mere loss of moral character on the part of the possessor, and can not, therefore, in any proper sense be . deemed “ property,” or amount to a contract within the constitutional meaning of these terms. See 22 Cal. 321, Cohen v. Wright.
    
    The definition of privilege, given in the authorities, is as follows:'“ We have defined it (privilege) in several cases to be the exercise of an occupation or business which requires a license from some proper authority, designated by a general law, and not open. to all or any one, without such license ”: Mayor and Aldermen of Columbia v. Guest, 3 Head, 414, cited and adopted in State v. Sehlier, 3 Heis., 281; Cate v. The State, 3 Sneed, 120; Mabry v. Tarver, 1 Hum., 98, and Smith v. The State, 1 Yerg., 229. In the last' named case, the practice of the law is called a privilege seven times in the course of the decision.
    
      Robertson and Eldridge v. Heneger, 5 Sneed, 258, is as follows: “ Is it a privilege by our law, to exhibit a- circus or menagerie? (To practice as an attorney at law?) It can only be lawfully done by obtaining a license to authorize it. It is then a right not open to all, but only to such as are empowered by license from the proper authority. This is a test of a privilege, as we held in the case of French v. Baker, 4 Sneed,” and the same principle is recognized in Young v. The Governor, 11 Hum., 148.
    In this case I ask, by way of argument, to insert instead of the words “ circus and menagerie,” “ practice as an attorney,” and see how perfectly it fits the case at bar.
    “ The practice of the law is a privilege to which the Legislature may attach such conditions as it may deem proper, and a breach of the condition is a forfeiture of the right ”: Cohen v. Wright, 22 Cal., 321, citing Dorsey’s case, 7 Porter, 395; Dormennon’s case, 1 Martin, 129; Bank of N. ' Y.x v. Stryker, 1 Wheeler’s Crim. Cases, 330; Sayer’s case, 7 Cow., 367, 4 J. R., 191.
    The defence does not deem it necessary to assume that attorneys after, having obtained license, and being admitted to practice, may be prohibited from practicing. But the defence does assume and has endeavored to show:
    1. That no person has a natural nor common law right to practice law.
    2. That the attorney at law is a creature of statute, and can only obtain the right to practice, by compliance with the terms of the statutes.
    3. That the practice of the law is prohibited by a general statute in Tennessee, and only permitted upon compliance with certain conditions.
    
      It will hardly be contended that a person could practice as an attorney in this State, without complying with the conditions of the statute and obtaining license. Why is it that he could not practice? It is because he has no natural nor common law right, and more immediately because he is prohibited by the statute: (Code, 3965, cited above.)
    This statute does not merely regulate, but to use the words of the court below, it “prohibits altogether and in toto,” unless the conditions of the statute are complied with, and license obtained from proper authority. This prohibition and requirement of license is strictly within the “ police power ” of the government. This power in a government is the equivalent of self-preservation in the individual, and is unlimited in its exercise over all subjects which would effect injuriously the public peace, • morals, or health: Cooley’s Const. Lim., 201; 5 How., 590-611; Potter’s Dwarris on Stats, and Cons., 451. Attorneys occupy an important position in reference to the public peace and morals. They hold such a position as to make it easy for them to stir up strife, defraud suitors, and inflict immense mischief. It is therefore necessary that unscrupulous and unworthy men should be jnevented from becoming lawyers. The exercise of the vocation is properly prohibited under the “police power,” and only permitted upon compliance with the conditions of the statutes, and obtaining license as evidence of compliance.
    To test the strength of this prohibition, suppose a person were to offer to practice as an attorney without having complied with the conditions of the statute, he would at once be refused a hearing. Suppose again that the statutes prescribing conditions for the admission of attorneys were all repealed, and the prohibiting statute allowed to stand. It might not be effective against those who had license, but by what authority could a person be admitted to practice? The general prohibition of the statute operates before a license is issued and a party admitted, and this general prohibition is sufficient to fix the character and definition of the practice of the law. It is not at all essential to the definition under the authorities, that in addition to the power to prohibit the exercise of a vocation, there should also be a power to recall a license granted, or prohibit those to whom it has already been granted, from exercising the privilege.
    The argument relied upon by the plaintiff, to prove that the practice of the law is not a privilege, is; That the attorney holds an office recognized by the Constitution, and therefore its exercise can not be prohibited. That it is a part of the essence of a privilege, that its exercise may be prohibited- by the Legislature, and that only those occupations are privileges the exercise of which can be prohibited. Let us test this argument. The plaintiff only attempts to apply it to those who have obtained license and have been regularly- admitted to practice. It is clear that it can not apply to those who have not been admitted. These may be and are prohibited from practicing as attorneys at law.
    I believe it is admitted by the defence, and if not, it is settled by the authorities, that the exercise of any occupation is a privilege which is generally prohibited, but permitted only upon complying with certain conditions, and obtaining license. Is it possible, that as to those who have not obtained license and been admitted to practice law, that it is a privilege, and to those who have, it is not? Does compliance with certain forms and obtaining a license change the definition of a vocation? Certainly the exercise of an occupation which to me to-day is a privilege because I am prohibited from its exercise, does not cease to be so to-morrow, merely because I have obtained license to exercise it, and have a constitutional right to do so. Every privilege is one sense a right.
    The attorney' indeed has a right, but a right to what? It is a right to exercise the' statutory privilege of appearing for suitors, and arguing causes, and of being recognized by the court. This right he acquires upon the issuance of license to him, and it may be a vested right of which he can not be deprived. The butcher, the inn-keeper, etc., acquire precisely similar rights upon the issuance of license to them— theirs too is a vested right of which they can not be deprived; but the want of power to prohibit them from exercising the vocation after license has been issued, does not alter the character of the vocation, nor change the definition under the authorities, which was- fixed as a privilege by the prohibition preventing the exercise of the vocation without complying with prescribed conditions and obtaining license, and this is precisely the same case with the lawyers.
    
      None of the provisions of the Constitution cited by tbe plaintiff, can have any application to attorneys until after they have obtained license and been admitted to practice. The attorney does not acquire a right to practice, through the Constitution, but through the statutes. It is therefore to the statutes that we must look for the character and definition of the vocation. The Constitution only operates upon attorneys, as it finds them ready-made by the statute; in other words, the Constitution does not act upon them until after the character and definition of their -occupation has been fixed, and these it does not pretend to create or alter.
    The case of Garland, ex parte, 4 Wall., relied upon by the plaintiff, I do not think operates against this view of the defence. Garland had been regularly admitted to the bar. Afterwards, a new oath was prescribed, which it was impossible for Garland to take, and in effect excluded him from the bar, and took from him the right which he had acquired to practice.
    The points decided were:
    1. Garland by his admission to the bar acquired a right to practice law.
    2. The statute, in question in effect, excluding Garland, was in the nature of a bill of attainder, and unconstitutional.
    3. The statute was ex post facto.
    
    4. Garland had been pardoned of his offence and should therefore not be excluded.
    None of these points are involved in the case at bar except the first, which in the decision is stated as follows: “ The attorney or counsellor being, by solemn judicial act of the court, clothed with his office, does not hold it as a matter of grace and favor. The right which it confers upon him to appear for suitors, and to argue causes, is something more than a mere indulgence, revocable at the pleasure of the court, or at the command of the Legislature. It is a right of which he can only be deprived by the judgment of the court, for moral or professional delinquency.”
    What is to to appear for suitors and argue causes? It is a statutory privilege, which the attorney acquires a “right” to exercise, upon receiving his license, and in the words of the court; “it is a right which is something more than a mere indulgence, revolcable at the pleasure of the court, or at the command of the Legislature. It is a “ right ” of which he can only be deprived by judgment of the court, for moral or professional delinquencies, i. e. showing that he is no longer worthy to exercise the privilege of appearing, etc. From the dissenting opinion of the Chief Justice and three of his associates, in the Garland case, I read by way of argument, an illustration, which clearly shows the distinction between the “right” and the “ privilege.” “ Distinction may be illustrated by the right of a party to a suit in court to defend his own cause, and the right of another to appear and defend for him. The one, like the right to life, liberty, and the pursuit of happiness, is inalienable. The other is • the privilege conferred by law on a person who complies with the prescribed conditions ”: 5 Wall., 384.
    
      The Legislature may create privileges, and may declare any vocation, out of which profit is derived,' a privilege. By the act of March 13, 1868, the practice of the law is declared to be a privilege, and so taxed, and this is binding upon the courts.
    No occupation ever became a privilege except by legislative creation. I don’t know that I understand what distinction the court below and the counsel for the plaintiff, intend to make between “ prohibit ” and “ prohibit altogether or in toto,” but I say upon authority, that to make any vocation from which profit is derived a taxable privilege, it is only necessary for the Legislature to enact that the occupation shall not be exercised without paying tax and obtaining license, and the license may be no more than an evidence of the payment of the tax.
    The practice of law, the erection of a toll-gate, and all that class of occupations which a citizen has no natural nor. common law right to exercise, but can only do by permission of the Legislature and compliance with the statutes, are privileges, per se. But all other occupations now recognized and taxed as privileges, were exercised freely, and as a matter of right, but by successive acts of the Legislature they have been declared privileges, and their exercise forbidden without payment of a tax, and obtaining license. And in many instances where any one of them — whether a privilege per se, or by declaration of'the Legislature —has come before the courts for adjudication, the right of the Legislature to declare the occupation a privi- ■ lege, and tax it as such has been recognized and sustained.
    
      The leading case in Tennessee is Mabry v. Tarver, 1 Hum., 98. Mabry was Sheriff and Tax Collector of Wilson county in 1838-9. A motion was made against him and his securities, for failure to pay over taxes collected by him. A portion of tax due, was from the keepers of stallions and jacks, .and the exhibitors of shows. These occupations were created privileges by the act of 1835, c. 15. The defence was that these occupations were not in themselves privileges, and the law declaring and taxing them as such was unconstitutional. The court held that the Legisiasure had a right to create the occupations privileges, and recognized the unlimited power in the Legislature to declare and tax any pursuit or occupation as a privilege, even farming.
    The next case decided was that of The Mayor, etc., v. Beasley, 1 Hum., 232. “By the act of 1835, c. 13, retailing spirituous liquors was made a privilege and taxed as such.”
    It has • been assumed by the court below and counsel, in the case at bar, that the power of the Legislature to prohibit occupations and declare them privileges, was confined to such as 'were of doubtful morality. But in the case last cited, it is expressly decided the other way.
    “ The act of 1847, c. 161, s. 9, makes the discounting of securities for money, or shaving notes, a privilege ”: Young v. The Governor, 11 Hum., 150. Here the court distinctly recognized the right of the Legislature to create privileges for the purpose of taxation. Act of 1835, e. 13, the standing of a jack was declared a privilege: Cate v. State, 3 Sneed, 120.
    In 1855, the County Court of Davidson, by authority derived from the Internal Improvement Act, levied a tax on wholesale grocers as a privilege, and it was sustained by the Supreme Court, on the ground that after this act, the vocation could not be lawfully exercised without paying the tax and obtaining license: French v. Baker, 4 Sneed, 194. And in Robertson, et ais., v. Heneger, 5 Sneed, 267, a tax on a circus was imposed in the same way, and sustained. See also, Mayor et ais., v. Quest, 3 Head, 414.
    The act of February 24, 1870, e. 24, s. 1, “constituted the occupation or -business of taking photographs, ambrotypes, and other likenesses, a privilege according to the established definition of the term”: State v. Schlier, 3 Heis., 281.
    I desire to call attention to the fact that the law in question was passed on March 13, 1868. The attention of the Constitutional Convention, which met in Nashville in 1870, was called to it, and the question as to its constitutionality raised/ and the matter was there debated, and it was decided to let the Constitution and act stand as they were.
    If the practice of the law is a privilege, either because it falls under the definition given in the authorities, or because it is declared by statute to be a privilege: then the act imposing the tax in question, is authorized by art. 2, s. 28, of the Constitution of Tennessee. But if not; then the defence maintains that the tax in question is justified by the general powers of taxation vested in the Legislative.
    
      It was the evident intention of the Legislature by act of March 113, 1868, to levy a tax upon the business and industry of the country, from which profit was derived, and by this means to raise revenue to relieve the State from its financial embarrassment. Neai’ly every occupation, trade and employment, is specified in the act, and in regard to each one, some basis, considered equitable, is indicated for raising revenue out of it. In regard to lawyers, it seems evident from the whole context of the act, that the Legislature intended to lay a tax upon the business, as a source from which profit was derived, and to exact tax only from those whose pr'ofits were deemed sufficient to enable them to pay it, and this the Legislature was authorized to do, without violation of the Constitution.
    The theory of our political system, is that the ultimate sovereignty is in the people, from whom springs all legitimate authority: Spooner v. Mo Connell, 1 McLean, 347. It has been held that the State Constitutions are not to be ‘considered as a grant of power, but rather as a restriction upon the powers of the Legislature; and that it is competent for the Legislature to exercise all powers not forbidden by the Constitution of the State, or delegated to the general government, or prohibited by the Constitution of the United States: Cohen v. Wright, 22 Cal., 308. In Sope v. Deaderieh, 8 Hum., 8, the court in speaking of the powers of the Legislature says: tJpon this point, all we deem it necessary to say is, that the State of Tennessee is a sovereign, and independent power, except so far as it is restrained by the Constitution of the United States, that its legislature has unlimited powers of legislation, except so far as it is restrained by the Constitution of the United States, and the Constitution of the State of Tennessee: ” Pepper v. Willis, 7 • Heis. 35.
    
      The People v.' Ooleman 4 Cal., 46. The cases of several persons occupied in different kinds of business, and taxed on their occupations, were tried together. The only clause in the Constitution in reference to taxation was art. 11, s. 13, which provides, “ All property shall be taxed in proportion to its value, to be ascertained as directed by law/’ * * * and also that it shall be equal and uniform. Question — Do the words “ equal and uniform ” operate as a limitation upon the taxing power of the Legislature and apply to many species of taxation to which governments may resort for the maintainance of itself?
    The court holds, 1. Each State is supreme within its own sphere.
    2. That the Constitution of the State is not to be considered a grant of power, but rather a restriction upon the powers of 'the Legislature, and it is competent for the Legislature to exercise all powers not forbidden by the Constitution of the United States.
    3. The power of the Legislature to tax trades, professions and occupations, is a matter completely within its control, and rests in its sound discretion.
    It cannot be contended, that by any delegation of power to the Federal Government, the State has excluded itself from the right to levy the tax in question. Then the only remaining question is, does the Constitution of this State, or of the United States, prohibit this tax?
    The taxing power is given in the Constitution of the United States,' with only one exception and two qualifications. Congress can not tax exports, and it must impose direct taxes by the rule of apportionment, and indirect taxes by the rule of uniformity. “Thus limited and thus only, it reaches every subject and may be exercised at discretion ”: License Tax Cases, 5 Wall., 471.
    In the Constitution of Tennessee, the taxing power is given with two exceptions, and six qualifications.
    Exceptions. — 1. f1,000 worth of personal property in the hands of each tax payer.
    2.Poll tax not to be levied on persons exempt by law, from age or other infirmity.
    Qualifications. — 1. All property shall be taxed according to value, no one species to be taxed higher than any other species of the same value.
    2. That portion of a merchant’s capital used in the purchase of merchandize, sold by him to non-residents, and sent beyond the Staté, shall not be taxed at a higher rate than the ad valorem tax on property.
    3. Poll tax shall not be less than fifty cents, nor more than one dollar per annum.
    4. No county nor corporation shall levy a poll tax exceeding that of the State.
    5. No. article manufactured of the produce of the State, shall be taxed otherwise than to pay inspection fees.
    6. Where a corporation or individual has contracted with the government, and paid valuable consideration for a charter, etc., this shall be considered in lieu of further tax, as in case of Union Bank v. State, 9 Yerg.
    To use the words of the Supreme Court of the United States and of Tennessee, quoted above, the “ thus limited and thus only, reaohes every subject, and may be exercised at discretion”: 5 "Wall., 471.
    A. T. McNeal for Fentress said:
    We will first treat the license to practice law as a privilege. By section 8 of the “ Declaration of Rights,” it is declared “ That no man shall be taken or imprisoned, or dissiezed of his freehold, liberties or privileges, etc., but by the, judgment of his peers, or the law of the land,” and by section 20, “That no retrospective law, or law impairing the obligation of contracts shall be made.”
    Even if the. right to practice law be deemed a privilege, section 8 of our Constitution declares that no man shall be dissiezed of his privileges, but by the judgment of his peers or the law of the land.
    The law of the land provides the only way in which a license to practice may be annulled: See Code, 3970-80, and tor what causes — see also, 1783-86.
    It is not pretended in this case that defendant has in any way forfeited his right dr privilege to practice law. Nor is it even insisted that the Legislature or any court hath withdrawn his license, or declared it void. But admitting that the license was properly granted, and without any fault, wrong, or improper conduct, and without even declaring that such licenses shall cease, the Legislature arbitrarily declares that in a certain class of lawyers, to-wit: of five years practice — a license from the County Court Clerk shall be obtained, and a privilege tax paid, before they shall pursue their profession any further.
    Now, if it were conceded that the General Assembly had the power to declare all law licenses heretofore granted forfeited, and had actually done so, then the question would be relieved of many of its difficulties.
    But the General Assembly has not done this. There is no act revoking or annulling the law licenses heretofore granted, and surely until the State, either by the General Assembly or by its courts, declares a license heretofore granted, null or of no further effect, there can not be any hindrance to the exercise of that privilege.
    Again, the statutes providing for the licensing of lawyers, or the annulling the same, etc., have not been repealed or annulled — and without repeal or amendment it is proposed to destroy the rights or privileges growing out of them.
    The Constitution, art. 2, s. 17, provides, that “All acts which repeal, revise, or amend former laws, shall recite in their caption, or otherwise, the title or substance of the law repealed, revised, or amended.”
    Even if the act of 1873, had any provision amending the statutes as to the granting or annulling of license' to a lawyer, it would be obnoxious to the foregoing provision of the Constitution.
    Let us now consider whether the license to practice law is a naked license or privilege, revocable at tbe will of tbe grantor, or whether it is a privilege at all. As to what is a proper definition of a privilege, the authorities are conflicting — the general rule is in substance that it is something prohibited to the many, but allowed to the few. Blackstone in his Commentaries, vol. 1, side page 272, gives illustrations of privileges: “ Such as converting aliens into denizens,” “ erecting corporations. ” etc. The Constitution of the United States, art. 1, s. 8, speaks of the “ privilege ” of the writ of habeas corpus. Our own books speak of the privilege of elector or of the elective franchise. . It is held in State v. Staten, 6 Col., 233, that no man can be deprived of the elective franchise,' without due process of law. So as to a corporation, in case of Trustees of Darmouth College v. Woodward, 4 Wheat., 465 to 534. See also Cooley’s Con. Lim., as to “ law of the land,” and due process of law, 351, et seq.
    
    A charter of incorporation to private persons, can not by subsequent legislation be annulled or impaired in its privileges, powers, or franchises, unless the right to do so be reserved in the charter itself: Cooley’s Con. Lim., 279, and authorities cited in note. “They are held to be contracts between the Legislature and the corporators — based for their consideration on the liabilities and duties, which the corporators assume by accepting them.
    Now, a lawyer by accepting license, assumes certain liabilities and duties to the State. For example, the Constitution requires that a man may be heard by himself and counsel, and in Tennessee, the Court is bound to appoint counsel for persons charged with an offense, who can not employ counsel for themselves, and by a decision of this State, the lawyer so appointed and required to serve, is entitled to no pay either from the State or county.
    Again: If the law is constitutional as to all lawyers licensed after the passage of this act, it can not be held to be valid as to those licensed prior its passage.
    Again: The Constitution of Tennessee clearly contemplates the practice of law by lawyers, and a penalty imposed implies a prohibition: Story on Contracts, 140, and authorities.
    By act of 1873, c. 44, p. 71, it is expressly provided, that the citizen shall be without remedy in this case.
    Section 2 provides, no restraining process, shall issue, though the claim be unconstitutional without right, and oppressive.
    Sections 3 and 1 provide for a certified copy of record, and the tax being $22.50 in this ease, no Court of Record has jurisdiction of it — thereby prohibiting any remedy. And even if there was a remedy, it violates the Constitution in taking the property of a citizen, before and without any way to try the right before taking.
    Francis Fentress for defendant said:
    1. The statute is a remarkable one, p. 98, 1867-8, sec. 5, sub-sec. 16.
    
      2. The penalty imposed implies a prohibition. It was formerly held that if a statute only annexed a penalty to the doing of a thing without expressly prohibiting it — it did not invalidate the act or contract, but this is not now the doctrine — but a penalty implies a prohibition: Story on Contract, 140, and numerous cases cited.
    3. A legislative construction of the word “privileges,” ás used in the Constitution — embracing lawyers or the practice of law — absurd as it is, can only be answered by the assertion of a constitutional right. A persuasive argument is to be found in the fact, that the Legislature of 1835, composed in .part of the same men who made the Constitution as well as, subsequent Legislatures for thirty-three years, none thought of including any one of the learned' professions in the word “privileges” used in the Constitution.
    Can the practice of law be called a privilege? The only boundary which can be fixed to legislative power in construing the word “privileges,” is where the right stops. Suppose the Legislature were to say that licenses might be sold to apply for the writ of habeas corpus, or to attend public meetings, or license to vote, or to defend himself when attacked, and impose a penalty for doing either without license. What would the courts say. This shows the boundary of legislative power in construing the word privileges, and this is what is meant by the decisions in 1 Hum., 94; 5 Head, 257: 3 Head, 413; 4 Sneed, 193.
    The right to tax implies a power to prohibit; in other words, a privilege is an exception to a general prohibition. The Legislature must have power to prohibit before it can exercise the right of granting license. Unless the Legislature can prohibit it to the many, it can not grant it to the few.
    4. This raises the important question, Can the Legislature prohibit the practice of law in Tennessee?
    First. The establishment of a judicial department in this State, contemplates the practice of law by lawyers.
    Second. The courts shall be open, and any man for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.
    Third. The right of trial by jury shall remain inviolate.
    Fourth. In all criminal charges, the accused hath the right to be heard _ by himself and his counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face; to have compulsory process for obtaining witnesses in his favor, and in prosecutions be indictment or presentment, a speedy public trial, by an impartial jury of the county in which the crime shall have been committed, and shall not be compelled to give evidence against himself.
    5. The VI amendment to the Constitution of the United States provides, that in all criminal prosecutions, the accused shall enjoy the right to a speedy public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation, to be confronted by the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.
    If the case of ex parte Garland, 4 Wall., is law, it is conclusive upon the power of the Legislature to prohibit all'persons from practicing law: See pp. 378-9.
    6. The fact that a law license to practice is required by our law, does not affect the question. A law license is a certificate that a party has complied with the law. A revenue license is a permission to do that which is generally prohibited. The similarity ends with the name. To regulate and to tax, which implies power of prohibition, are two different things. The Legislature has a right to regulate courts themselves, as well as the practice of law, but not to prohibit.
    7. A party has already a license to practice law, and a vested right to exercise his profession, and no subsequent act which impairs this right can stand— even if it were constitutional, as to those obtaining licenses after the taking effect of the act — which we deny — surely it can not 'be good as to him who long before the act had the right to practice law in Tennessee without let or hindrance. It is also class legislation.
    8. It is in express violation of section 8, Bill of Rights: 6 Col., State v. Staten, 233.
    
      Milton P. Jaiinagin for defendants said:
    Lawyers have always been regarded as officers of court, subject to fixed rules of practice and of personal conduct; and liable to punishment for misconduct. To fit them for this office, they must qualify themselves by proper study, must procure a' certificate from the County Court of good moral character, and then be licensed under the hand of two judges.
    Every suitor has the right to appear in person or by attorney, in all the courts.
    Here then is a vocation secured after years of labor and self denial; upon the attainment of peculiar qualifications, and a license for life, without burden or restriction, except respectful obedience to the rules of court.
    The lawyer holds his position by the tenure of a contract, which taxation certainly would violate, and possibly destroy. This would obstruct the administration of justice.
    Attorney-General Heiskell for the State said:
    The true definition of a privilege, in Tennessee, is any occupation which the legislature chooses to tax as such. But the occupation of a lawyer is the only occupation in the State that comes- within the strict definition of a privilege as defined in the books. It is the only one that, independent of the revenue laws can not be exercised without license.
    It is asserted in the argument, that the legislature can not tax anything as a privilege that they can not absolutely prohibit. Can they prohibit butchering meats, or baking, or keeping hotels, or preaching, or teaching schools, or photography, or keeping stud horses, or driving drays, or carts, or express wagons, or railroads? If they can prohibit these, they can lawyers.
    • The right to' practice law is certainly not a higher right — not more perfectly based on nature and reason than butchering, procuring food meet for man, or preparing it for his use. The ordinary occupations, which were in use before the common law had formed its first rudiments, and under it ages before attorneys were heard of, are as much matters of right, which the legislature has no power to prohibit, as the artificial statutory right to practice law. They are equally devoid of express protection in the constitution, unless the labors of an occupation are part of the liberties of a freeman. If they come in as such, and surely they are so included, these have a protection the lawyer may share with them, but to which he has no superior guaranty. None of these can be abolished by the legislature, yet all but the lawyer may be taxed. Why is he exempt? Not for the reason given that his occupation can not be abolished. Such tax does not depend on the police power: Jenkins v. Ewin, ante p. 456, where this precise point is held. Such tax is customary in various states. See State v. King, 21 La. An., citing State v. Volkmam 201, p. 585, and State v. Maples, 12 La. An., 343; Nathan & Son v. Same, 8 How. U. S. p. 80.
    But it is said, the license is a contract. This I do not admit. A contract must have mutuality. The license is a permission simply to practice. It is rather a removal of a prohibition against persons practicing, and a certification that he is properly qualified to represent others. It is a mere inspection law, certifying that his qualification has undergone inspection in the proper office, and that he is not marked “I. C.” That is the effect. Upon this the form says he is allowed to practice; as “inspected” is a permit to sell the article. But is any man bound to practice? If it is a contract, the man is as much bound to practice as the state is to let him. Yet any man may quit when he pleases, or may never begin to practice. It is a contract obligatory on one side only, without the first element, consideration, and without mutuality.
    But if there is a contract, is not a bank charter a contract? And does a bank charter exempt the bank from taxation alone because it is a contract? Suppose the contract does not exempt the privilege from taxation or take any bonus. Can an exemption be implied from the contract to allow the bank to be carried on. The authorities are full on this point, for which see brief in Memphis corporation tax cases. The bank, by a contract that she shall be allowed to do business, gets the right which the legislature can not take away, yet which they can tax. The lawyer, by a similar grant of a right, without exemption from tax, gets a right which the legislature can not take away, nor, as it is argued here, can they tax it. Why is the contract different in one case from, the other? The only possible difference is in the spectacles through which we look. To an unprejudiced mind, there is none whatever. To one blinded with esprit de eorps there is a mighty difference. In truth you can not take away either., but you can tax both. The right of the lawyer to practice without prohibition, is not based upon contract, but upon the idea that it is a common occupation which the lawyer has the same right to pursue, that a farmer, or doctor, or drayman has. It is compared to rights of this class, and it is denied to be a privilege in the sense that it is something that the legislature can take away. The legislature can not take away the right of the butcher to kill his beeves; no more can they take away from the lawyer the right to practice his business. Suppose the butcher is required to be an apprentice, and the law authorizes him to practice his calling on the certificate of his master, that he was skilled in the art and mystery of butchering, would that place his occupation on the footing of a contract? Can the man be found (not being a butcher) who will assert it? Yet he might assert it as well as the lawyer. Add to the butcher’s certificate that he is, therefore, authorized to exercise the said -calling for the benefit of the citizens of the state, and how much is the matter changed? Let the law authorize this form, and what change is made? None. His is a privilege then no more than now, and taxable, just as the bank corporation is taxable. I deny that an express exemption from taxation would avail him at all. It would be without consideration and revocable, like the exemption of property in the case of MoAuley v. M. and A. of Chattanooga.
    
    It is said, the power to tax is the power to destroy. This is true, and for this very reason it is a power given to the representatives of the people. Their discretion is only subject to control at the ballot-box. It is a political truth of the highest importance. When our fathers first advanced it, it was ' in connection with the idea that taxation without representation was tyranny. The right of a foreign government to tax our commerce and our manufactures, with a view to subjecting us to a servitude in those respects, was a thing to be apprehended. It was not an abstract truth merely. It had an application in the concrete, not remote or problematical. As a political truth, it was full of warning. It is unquestionable in point of law, that the right to tax is not subject to limitation or control, and when it exists, it is limited only by the will of the people. When it was applied by the judges of the United States to the protection of the agencies of the United States Government and to the power of States, which might become inimical, and which have since been inimical to the extent of resisting by arms; they were merely adopting the warning, like their forefathers did, to protect agencies likely to be attacked. They held, therefore, their vigilance awakened by this watchword, that the governments could no more tax these agencies, than they could tax their own — which would be absurd. That the relation of each to the other was such that the power to tax could not reasonably be supposed to exist; in fact, it was incompatible with their relation as one government with complex relations and co-equal powers. But the idea that in a state it is an answer to the claim of a right to tax; to say that the right to tax is the right to destroy; is an absurdity so gross that it can hardly be announced without a smile. To say that land can not be ■ taxed, because by taxation it may be confiscated; that personalty can not, because, it may be taxed more than it will bring; that doctors may not, because they v may be taxed more than they can earn; that merchants, cooks, bakers, tailors, peddlers, stud-horses, butchers, draymen, apothecaries, preachers, school masters, railroad companies, turnpike companies, banks, etc., can not be taxed lest they be destroyed, is to prove that the legislature has no power of taxation at all. The constitution has intrusted our dearest rights to the legislature, with no guaranty for their preservation, but the protective influence of our votes and active vigilance and effort at the ballot-box. We give the power to destroy in the right to tax, but we inculcate prudence, with the penalty of a future reckoning and turning out and a putting in new men, if classes are oppressed or injustice practiced.
    The only principle on which the argument can plausibly be put, is that the legislature, by some inherent limitation on its power, independent of any express constitutional provision, is prohibited from doing any act which may destroy either of the other branches of the government, and from exercising any power which involves the power to destroy. It can not tax the lawyer, because it can not be trusted with this power, lest it may use it to destroy one of the cherished appliances of courts, and the source of supply from which judges are to come, and so may destroy courts themselves. The legislature can not be entrusted with a power indirectly to destroy the courts; but a power to destroy lawyers is a power to destroy courts, therefore, they are not entrusted with power to destroy lawyers. But a power to tax is a power to destroy; therefore, they are not entrusted with the power to tax lawyers.
    It certainly will be admitted that the power to raise contributions from the members of a community to pay the expenses of that community, is one of the most necessary powers of a legislative body, and that this principle of taking away ■ the power to destroy, can not apply more strongly as a restriction upon the taxing power than in other directions. As taxation is usually a power used to keep alive the body politic, and necessary for that purpose, a principle which has to be hunted for in the lowest stratum of the constitution, will necessarily be applied to any of the general powers of the legislative, rather than to this power. What the court will imply as the intent of the constitution, a provision non seripta, to restrict taxation, they certainly will, a fortiori, imply in every other direcoion in which the legislature, without such implied intent to restrict, may do damage. If then, I find the' constitution has not guarded other points more vital than this, may I not reasonably infer that they have not intended to guard this less vital point? If I find that they have not guarded these vital points from more direct attack, may I not infer that they have not intended to guard this less vital point from indirect attack.
    If they have trusted the legislature with direct powers, with less necessity for trusting them, may I not infer that they have trusted them with indirect powers, with greater necessity for the trust? If taxation is seldom used to destroy, but is generally used to keep alive, may I not infer that every point guarded by implied intent against the improper úse of that power to destroy, is also to be found as a safeguard against the use of powers often directed to the purpose of destruction, and if I find no safeguard against such other interferences, may I not fairly infer that no such thing was intended ?
    Now let us see:
    I. What things are left unguarded from taxation more vital than lawyers to the existence of a community.
    2. . In what other ways lawyers are left unguarded.
    3. In what other ways courts are left unguarded from direct attack.
    4. In what other ways courts are left unguarded from indirect attack.
    1. According to the decisions of this Court, every occupation which the legislature chooses to designate as such, is a privilege subject to taxation. You may tax the privilege of preaching the gospel or of administering medicine to the siclr; of preparing food by butchering; of cooking food or baking; of carrying in wagons, in carts, in drays; of making shoes, clothes, iron and hardware, implements of husbandry, and all implements of necessity; of breeding horses, and, of course, of breeding cattle, sheep and hogs. You may tax the causes in court; the suitors for bringing them. You may tax the selling of meats and drinks; the keeping of hotels, boarding houses or supplies of food. You may of course tax artist and artisan; housebuilders, carpenters, masons, hodmen, and every man on whom falls the curse of earning his food by the sweat of his brow, for the privilege of laboring under that curse. You may even declare the production of food a privilege, and tax the farmer on the privilege of farming.
    Now, upon what principle can it be held that the vital occupations, without which courts, juries, •judges and lawyers must starve, may be put in the power of the legislature, subject to the power to be destroyed by taxation, and that the lawyers can not be trusted to their discretion. If you say that it is most unlikely that these things will be taxed out of existence, there are two conclusive answers:
    First. It is not the likelihood that the thing will be done that is the basis of the objection, but the possibility that it may be. The objection is to the existence of the power, not to the probability of its exercise.
    Second. There is as much probability of the one as the other. I admit, that if the choice was put to the legislature, whether they would dispense with cooks or lawyers, that they would dispense with the guardians of liberty, and would save the caterers for the stomach. But such an alternative is. as remote as that supposed case in which we would catch larks — the falling of the sky. Indeed, such a supposition as that it will be taxed out of existence, is so puerile, as a possibility, that to state it in that form would condemn the whole argument. No such probability ever did exist since they were first recognized by the statute law, and never will unless in reprisal for the setting up of exclusive privileges not given to other more necessary classes of the community.
    2. But why guard this remotest of possibilities, while the legislature has the power at once and directly to declare that any man shall be authorized to appear for another as attorney, or counsel, or solicitor, without license, so that all licenses would ipso facto become nugatory, and cease to have any distinctive operation on their holders.; From that moment the lawyer would stand on the footing of every other man — with no right that every other man did not have. From that moment the lawyer might be taxed on his privilege of practicing, because his license to practice to the exclusion of others would be. in effect vacated, by making those who had none, equal with him in point of privilege, and from that moment, as the whole community might be judges, there could be no more danger of taxing them into non-existence, than there is now of taxing out the materials for governors or legislators.
    If then the rights of the bar can be destroyed at once by this direct method; not unlikely to be adopted, if the courts should discover an implied prohibition to tax them where the Constitution has expressed none; why should the court make the effort to protect them against an evil chimerical as the alarm of Chicken Little in the nursery tale.
    Again, the legislature might repeal all laws authorizing any judge to examine new lawyers, or might place such restrictions on their admission as would put them out of existence in a few years.
    Again, this Court has held that suitors in court may be taxed on their lawsuits. But the power to tax is the power to destroy.
    3. Just here, also, the courts are at the mercy of the legislature. Suppose they should lay a tax on each suit, of. double the amount of the debt or damages claimed, and require it to be paid down in advance. The right to tax being established, the amount is with the legislature, and this court could not control the amount of tax they might levy. Yet the courts should remain open for all that chose to sue. This right to tax suits is settled. Could not the legislature destroy the courts under this power, and that without remedy? Why talk about taxing lawyers when you have, held that the power to destroy does not affect the right to tax the subject of the lawyer’s efforts and sources of his profits. This is a point unguarded in the very existence of courts as a practical agency.
    Again, the inferior courts are at any moment subject to abolition — any one of them can be abolished by the legislature at any moment. But the power to destroy one involves the power to destroy all, or the jurisdiction of the courts might be so restricted as to operate their virtual destruction.
    Again, the power of the purse is the power to destroy or to make alive. This court can not be abolished by the legislature, nor can the salaries of its judges be increased or diminished during its term of service. But suppose the legislature refuse to lay a tax of more than 20 cents on the $100 of property, and enact that out of that sum $2,000,000 shall be appropriated to pay interest on public debt, and the tax will only bring $1,900,000. Where would this Court find refuge from the swift destruction which would follow? You may say that you would hold it unconstitutional, and compel the Comptroller to disobey it. Every member of this Court would be reduced to any extremity before he would hold any such thing. This Court has no power to compel the legislature to levy any tax or make any appropriation, and no power on earth would drive this Court judicially to assert either proposition. Such an act would scatter this tribunal like a wolf would scatter the sheep. How futile, then, the idea of the Constitution, by presumed intent, protecting against th'e possibility of the legislature destroying by taxation, what it could destroy by such other obvious and easy means. Happily there is no danger. By the same token there is no more danger from taxation of lawyers; and, indeed, there is infinitely less, if there can be comparatives between things each infinitely unlikely to happen.
    We return to the conclusion, that the ballot is the protection of many of our most sacred rights. itepresentation is our great safeguard. The sense of the people and their necessities, is the check under which we entrust to the legislature our lives, our liberties,, and our sacred honor; the power to build up or to destroy either; we do it and the Constitution implies no intent to prohibit it. Neither can it when lawyers are intrusted in purse, where other citizens entrust every sacred right.
    
      
       See also, State v. Gazley, 5 Ham. 14; (8 Ohio, 8,) found since the argument.
    
   Nicholson, C. J.,

delivered the following opinion.

These cases involve the constitutional power of the Legislature to impose a tax upon lawyers, for the privilege of practicing law in the several courts in which they had been enrolled as attorneys.

The act declares that the practice of law is a privilege, and prohibits the exercise of the privilege without • first obtaining a license from the County Court Clerk, and paying the privilege tax.

It is conceded, that the constitution expressly authorizes the legislature to tax privileges in such manner as they may deem proper. It is further conceded, that the practice of the law is a privilege, but the question is, whether it is such a privilege as is subject to the taxing power? The. lawyer practices his profession .by virtue of the judgment of two judges, who adjudicate the questions as to his qualifications, as prescribed by the legislature, and determine upon the evidence furnished to them; that he is twenty-one years of age; that he is of good moral character, and that he has the requisite learning in the law to become a practitioner. Upon producing this judgment, in any of the courts of the State, the presiding judge or judges enter his name to be enrolled as an attorney of the court, and from that time he becomes an officer of such court, having the privilege or right to practice in such court, but subject to the rules and orders for the conduct of attorneys prescribed by the court.

It is said by a majority of the United States Supreme Court, in the case of exparte Garland, 4 Wall., 378, that “the order of admission is the judgment of the Court, that the parties possess the requisite qualifications as attorneys and counsellors, and are entitled to appear as such and conduct causes therein. From its entry the parties become officers of the court, and are responsible to it for professional misconduct.

They hold their office during good behavior, and can only be deprived of it for misconduct, ascertained and declared by the judgment of the court, after opportunity to be- heard has been afforded. Their admission or exclusion is not the exercise of a mere ministerial power, it is the exercise of judicial power. * * * The attorney and counsellor being, by the solemn judicial act of the court, clothed with his office, does not hold it as a mere matter of grace and favor.

The right which it confers on him to appear for suitors, and to argue causes, is something more than a mere indulgence revocable at the pleasure of the court, or at the command of the Legislature. It is a right of which he can only be deprived by the judgment of the court, for moral or professional deficiency.”

In the same case, the minority of the Court, consisting of Justices Miller, Swayne, Davis, and Chief Justice Chase, in reference to attorneys, say: “They are as essential to the successful working of the courts as clerks, sheriffs, and marshals, and pérhaps as the judges themselves, since no instance is known of a court of law without a bar.”

It is therefore settled by the unanimous judgment of the United States Supreme Court, that lawyers admitted to practice in the courts by the orders of the presiding judge or judges, become thereby officers of the courts, and necessary constituent parts thereof; and the right thus acquired, can not be revoked by the mere .pleasure of the court, or at the command of the Legislature.

At the time the act of the Legislature in question was passed, the defendant was a practicing lawyer, admitted and enrolled as such by the order of the presiding judge, and therefore entitled to exercise the right or privilege of such officer of the court. Upon the authority just referred to, his right as such attorney and officer could not be revoked by the Legislature, nor by the court except for professional misconduct. It follows that so much of the act as assumes the power to prohibit the right of practicing law by the defendant without procuring a new license, was unconstitutional and void.

• But this does not settle the question as to the power of the Legislature to impose a tax upon the privilege of practicing law. It only establishes, that as the privilege already existed, and was of a character not to be revoked by the Legislature, it could not be prohibited for the mere purpose of taxing it as a privilege. If, however, it was a privilege under the Constitution, the tax might be imposed without such prohibition by a law for that purpose. The present law imposes the tax for the new privilege created for that purpose, and not on the existing privilege.

The power of legislation, and consequently of taxation, operates on all persons and property belonging to the body politic. This is an original principle which has its foundation in society itself. It is granted by all for the benefit of all. It resides in government as part of itself, and need not be reserved when property of any descripition, or the right to use it in any manner, is granted to individuals or corporate bodies. However absolute the right of an individual may be, it is still in the nature of that right that it must bear a portion of the public burdens, and that portion must .be determined by the Legislature : 4 Peters, 553.

We have seen that the right to practice law, after the privilege is adjudged as provided by law, is absolute and can not be revoked by the Legislature or the Court itself, except for professional misconduct. But unless there is something in the privilege, by which the State has relinquished the right of taxation, it is to be presumed that it is accepted, subject to the power of the State to impose upon its exercise a share of .the public burdens, by way of taxation.

The rights of a corporation to exercise its franchises and privileges is absolute, but if the charter contains no express exemption from taxation, the power to tax the privilege exists. In the case of Providence Bank v. Billings, 4 Peters, 562, it is said: “It would seem that the relinquishment of such a power is never to be assumed. We will not say that a State may not relinquish it, that a consideration sufficiently valuable to induce a party’s release of it may not exist; but, as the whole community is interested in retaining it undiminished, that community has a right to insist that its abandonment ought not to be presumed in a case in which the deliberate purpose of the State to abandon it does not appear.”

It was provided in the charter of the Union Bank, granted in 1832, that in consideration of the privileges granted, the bank agreed- to pay to the State annually, one-half of one per cent, on the amount of the capital stock paid in. In the case of the Union Bank v. The State, it was held that this provision in the charter constituted a contract between the State and the bank, and that the State could not afterward impose an additional tax upon the capital stock, without impairing the obligation of that contract. In making this decision, however, the Court distinctly concede the power of the Legislature to tax a banking corporation, unless the charter contains a stipulation exempting it from taxation.

The privilege of the lawyer secures to him an absolute vested right to practice law during good behavior, but we can discover nothing in the terms of the statutes which prescribe his qualifications, nor in the judgment of the Court which makes the privilege an absolute right, that can be construed into an exemption from the power of taxation. ' It is true the privilege is granted as well for the public good, as for the individual benefit of the lawyer. . But the same may be said of the privileges granted to private corporations, the consideration of the public good as well as the benefit of the corporators enters into the contract. While, therefore, we hold that the privilege of the lawyer is a vested right which can not be revoked by the Legislature, it stands on the same footing, so far as this view of the question is concerned, with the absolute rights resting on contracts, and is alike subject to the taxing power of the State.

But we have seen, that where the lawyer is adjudged qualified by two judges, and is admitted to practice in the courts, he became an officer thereof, and entitled to hold his office during good behavior. The question arises, does the fact that the lawyer is an officer of the court exempt his office, or, which is the same thing, his ’ right to practice in the courts, from the general- taxing power of the Legislature? This question reaches to the foundation of republican government. It is a fundamental principle, that it is essential to the maintenance of republican government, that its powers should be distributed into legislative, judicial and executive departments, and that in its administration these departments should be separate and independent in their respective spheres. Hence, it is provided in the Constitution of our State, that “the powers of the government shall be divided into three distinct departments; the legislative, executive and judicial.”

When we are called upon to construe that clause in the Constitution, which confers upon the Legislature the power to tax “ privileges,” in order to ascertain the intention of the framers of the Constitution, we are bound to give such construction as will harmonize with the several provisions which may involve the same question. We not only find the provision, that the powers of these departments are “ distinct,” but we find it provided, that “ all courts shall be open,” and that “ in all criminal prosecutions, the accused hath the right to be heard by himself and his counsel.” .It thus appears that the Constitution recognizes the lawyer as an essential agent in judicial proceedings. We must presume, therefore, that when the Convention provided in the Constitution, that the Legislature might impose taxes on “privileges,” they did not intend to recognize in that department of the government the exercise of a power which might involve the judicial department in 'the legitimate exercise of its distinct powers. If it be true, as held by the majority of the United States Supreme Court, in the case of Garland, ex parte, that the right of a lawyer, conferred by the solemn judicial act of the court, is such that he can not be deprived of it at the pleasure of the court, or at the command of the Legislature; or if, as held by the minority of the Court in that case, lawyers “ are as essential to the successful working of the courts, as the clerks, sheriffs, and marshals, and perhaps as the judges themselves”;- it is difficult to see how the Legislature could impose a tax upon the office or right of the lawyer, without thereby involving the very existence of the judicial department.

It must be borne in mind, that this is simply a question of power as between two co-ordinate and independent departments of the government.

If the power exists at all, it may be exercised at the discretion of ' the Legislature, by the express language of the Constitution. Hence, although the- tax imposed by the present statute, may not' be so oppressive as to interfere practically with the successful working of the courts, yet if the power be conceded, it is conceding that the Legislature possesses a power, which may be exercised, even to the closing of the courts.

The true safety of the government consists in arresting the first step toward the invasion of one department by another, by the assumption of unconstitutional powers. If the Legislature has the power to convert the office of an attorney into a taxable -privilege, by prohibiting its exercise without taking out an annual license, why may they not by the same process, convert the offices of the clerks,' sheriffs, and marshals, and, in fact, of the judges themseves, into taxable privileges, and require them all to -pay taxes on their offices, or cease to hold and exercise their functions ?

In principle no distinction can be drawn. The principle which underlies and sustains our conclusion is the same on which the Supreme Court of the United States has uniformly held, that the States can not impose taxes upon the offices, agencies, or instrumentalities of the Federal Government: Gobbins v. Erie County, 16 Peters, 435. The two governments being supreme and independent in their respective spheres, the Constitution of the United States which is the supreme law, forbids the invasion by either, of the powers of the other, by imposing taxes on their respective officers or agents. For the same reason, the three departments of the State Government, being distinct and independent in their respective spheres, the Constitution forbids the invasion of. the province of one, by the exercise of their respective powers in violation of the powers of the others. Such we hold to be the character of the act of the Legislature, which undertakes to impose taxes on the privileges or rights of lawyers, who are officers of the courts, and therefore, we declare the act unconstitutional and void.

It is said, however, that it is settled that taxes can be constitutionally levied upon the right to sue in the courts, and therefore, it is argued that the privilege of practicing law in the courts is also constitutional. But in taxing law suits, the Legislature does not assume to interfere with the rights or privileges of officers of the courts. The instituting of suits is not a privilege merely, but it is an absolute right which is common to all citizens, it is a species of property as held by this Court in the case of Harrison & Pepper v. Willis, 7 Heis., 44. Besides, as said in the opinion in that ease, “the tax is imposed on the unsuccessful party/5 who, in the opinion of the tribunal adjudicating the case is in the wrong, “who has not been injured in his lands, goods, or reputation/5 but who has wronged his adversary, and it becomes therefore in this view, not a tax upon the judicial remedy, but a tax upon unrighteous litigation. It would seem to follow conclusively, that the tax or penalty imposed upon the unsuccessful party, for wrongfully contesting the rights of his adversary in court, can furnish no precedent or authority for the constitutionality of a tax imposed upon an officer of court, for exercising a right adjudged to belong to him. The tax upon the unsuccessful party in litigation, is so far from being the exercise of a power destructive of the courts, it is a protection to those who have real claims, but a punishment to those who use the courts to avoid just claims.

Our conclusion is, that the act taxing the right of the lawyer to appear in court for the exercise of his right, is unconstitutional and void.

Opinion by

Freeman, J.

By the act of 1867-8, c. 129, s. 5, all lawyers setting themselves up as practicing attorneys, who have been practicing five years, shall pay a privilege tax of $15. By other sections of the Code, penalties of double the amount of the privilege tax are imposed for exercising any privilege without obtaining a license as required by law. This renders it unlawful for any man to exercise any privilege declared taxable, without payment of the tax imposed for grant of the privilege, and obtaining a license from the Clerk of the County Court. These privileges are granted annually on payment of the tax on the same, and without such license, no party can lawfully exercise the privilege or engage in the occupation taxed. In other words, the occupation is forbidden, and in the case of a lawyer of five years standing, notwithstanding his license by the proper authorities, acting according to law, he forfeits his rights, and is forbidden to follow his profession. He is simply deprived of and forfeits his right thus obtained, and that without crime or judicial investigation. The question is, whether this can be sustained as a constitutional right on the part of the State, or whether such a law is in accordance with our own or the Federal Constitution?

The question is not whether the State may not declare the practice of the profession a privilege, and require in the future, all who desire to engage in it to pay a license tax, either on receiving such license, or to pay an annual tax on the same, but whether the State can declare that a privilege, which she has already granted, and revoke the license obtained under her authority, unless the party shall pay for and obtain an annual license under the law we are considering?

We hold this can not be done without impairing the obligation of a contract, and that is to deprive a man of a right granted by the State, based on a valuable consideration paid by the lawyer in more or less toil and labor, given to the acquirement of the requisite qualifications to obtain his license.

In the case ex parte Garland, 4 Wall., 374, et seq, the character of a lawyer’s right to practice his profession, to appear for clients and argue causes, was well stated. It was substantially held that this was a valuable right, one acquired from the proper authorities, of which he could not be deprived except for misconduct, and by the judgment of a court. That this right was something more than an indulgence, revocable at the pleasure of the court admitting the party to the bar, or even at the command of the Legislature. In that celebrated case it was decided, that to impose an oath on an attorney, which he could not take, and require him after he had been admitted as an attorney to take such an oath, or not be permitted to exercise the functions of his profession, was in the nature of attainder, having all the elements of a Bill of Pains and Penalties, • as once known in practice in the jurisprudence of England, and that no such punishment could be inflicted under the Constitution of the United States. This puts the right on high ground, but not higher than the truth and right of the case demands. These principles being conceded, then we assume, that the lawyer holds his right by virtue of a grant from the State, which grant is irrevocable, except upon the conditions implied by its nature, that the party shall not be guilty of conduct unworthy of the trust reposed in him. Should he be guilty of such conduct, then when the fact is judicially ascertained according to the forms of law, he may be declared to have forfeited his right, but not otherwise.

It is ingeniously argued, however, that this valuable right granted by the State, is no more than a grant of land or other property from the State, or the grant of a franchise to a corporation, and that these are all taxable as property, and not protected from this burden by reason of the grant. This we concede to its fullest extent has been long settled, the case of Providence Bank v. Billings, being perhaps the leading case on the subject. But the fallacy that underlies this argument is, in not distinguishing between taxation of a thing or right as property at its value, and making a privilege which can only be enjoyed by license, and in effect depriving the party of the granted privilege, unless he shall purchase it again from the State, and under our system of laws buy it every year. This is a very different thing from taxing a property or right granted by the State as property, is in effect a revocation of the grant except upon the discharge of a new burden imposed, and which was not in the contract at the time, nor part of the grant.

We may concede that the right as a valuable property, somewhat in the nature of a franchise may be taxed as property, as other valuable rights, such as the franchise of a bank or other corporation, but we deny that the right can be taken away or the grant revoked by the Legislature, except as we have indicated for misconduct judicially ascertained. This was held in a late case by the Supreme Court of "Virginia: Ould & Carrington v. The City of Richmond, 23 Gratt, 464, Am. Rep., vol. 14, 139, 40 et seq. In that case, while it was held that the power of taxation “extended to every trade or occupation, to every object of industry, use or enjoyment, to every species of profession,” and therefore the lawyer’s right or privilege might be taxed as property according to its value, and the limitation upon the exercise of this right by the Legislature and the security against its abuse, in the language of Chief Justice Marshall, was the influence of the constituent over the representative, yet the Court say “lawyers are not named among those to whom license may be granted or refused and taxed. They could not be included in a provision to authorize .a tax upon an occupation or business to which the council might grant or refuse a -license, for a lawyer has obtained his license from the State, and it is not in the power of a municipality to deprive him of this right.” This, it is true, was a tax imposed by a municipality, but in pursuance of the fullest powers granted by the Legislature over all legitimate objects of taxation. The Court adds substantially, “that while the lawyer could not be deprived of his right, that it was, however, a valuable civil right and privilege, to which are attached valuable immunities and pecuniary advantages, and is a fair subject of taxation by the State, or by any municipal corporation where he resides and enjoys the privilege. It is a vested civil right, yet it is as properly a legitimate subject of taxation as property to which a man has a vested right.”

But to recur to the case of a franchise granted as law, suppose the State should assume to revoke the grant and require that every corporation should repurchase its franchise by obtaining a license for the privilege, or that every grantee of land from the State., should obtain a new grant annually from the State in order to the enjoyment of his lands, and impose a penalty for the exercise of the franchise in the one case, or the beneficial use of the land in the other, would any man hold that this was not a violation of the Constitution of the United States ? This would certainly be to impair the obligation of the contract in both cases, as well settled principles, in fact, would be to destroy the contract, and arbitrarily make a new one. This, we think, is precisely the case before us. The Legislature by general law authorized the grant of a license to practice the profession of the law in all the courts of law and equity in the State, to parties who might fit themselves for it by proper professional learning, and give the evidence of good moral character, as required by our statutes. The attainment of proper qualifications and proficiency in the learning of the law, as contemplated by our law, is a work of time and toil. This time might be otherwise profitably employed in other pursuits. The young aspirant foregoes other advantages and with more or less expense he gives himself to the acquirement of the required qualifications. He satisfies the proper authority of his learning, complies with the terms prescribed by the Legislature, and thereupon the State grants him the right to the exercise of his professional skill and use of his professional knowledge. This .is henceforward by authority of the State, to be his vocation or calling — the means of his livelihood, he fondly hopes perhaps of great emoluments, and it anay be of high position and honor. He has fairly earned his right to the grant of this privilege, and the State has through her authorized officers admitted the fact, and conferred it upon him by a grant of license as an attorney and counsellor at law. Can he be deprived of this valuable right except for misconduct? We hold not, unless the State can not. be bound by her grants, but has the right to assume them at her pleasure; not unless the State is not bound by the obligation of a contract, (for this has all the elements of one, we believe, more than the celebrated case of Woodward v. Dartmouth College,) and may disregard hers at her pleasure, and impose another: may prohibit the enjoyment of contracted rights granted by penalties that forbid their exercise. This can not be done in our opinion while the Constitution remains that forbids any “State from impairing the obligation ■of a contract.” If the act now under consideration ■does not impair the obligation of the contract found ■on the face of every lawyer’s license obtained before its enactment, then we are at a loss to see what could do it. The right granted by the State is revoked and is as effectually destroyed as if the Legislature should say, that any man who had been practicing law for five years, should no longer enjoy that right, or exercise the privilege granted by his license. In fact, under this act, the lawyer included in its provisions would henceforward not practice his profession by virtue of his original license, but under the license granted by the County Court Clerk of the State. If he seeks to enjoy his right under the license granted by the judges who have signed it, and under which he formerly exercised the privilege, he is forbidden to do so, and must annually obtain a license from the County Court Clerk, or his law license is so much waste paper • to him. We do not think such power can be exercised by the Legislature, and therefore the act is to be held void, as unauthorized by the Constitution of the United States and of our own State.

The argument based on the idea that this is a tax on a lawyer’s privilege like that imposed on the merchant, we think overlooks one important and essential element of difference in the two cases. In the case of the merchants’ tax, it is paid on granting the privilege and is the consideration for the license given him. In the case before us, a license has been granted upon good and sufficient consideration in accordance with law. The question in the case of the lawyer is, whether after having obtained the grant, he can be again called on to be relicensed, and required to pay again for that which he already holds from the State, or be deprived of its enjoyment. The cases would be analogous if the State should require every merchant in the State after he had his license paid for, authorizing him to exercise the privilege for a year, again within the year to be relicensed to enjoy the same privilege, and forbid him from exercising it during the year without such new license. This would be to sell a party a privilege and then make it go for nothing, and require him to make a new contract in order to its enjoyment. In %ther words, we think the real question in this case is, whether the Legislature can arbitrarily revoke the license of any lawyer in the State, deprive him of his granted privilege and means of living by his profession, thus annulling the grant, or whether this grant is a contract binding on the State, and as such irrevocable. We hold the last to be the true state of the case, and that the license is a contract which the State can not impair.

It is proper to add, that under this view of the case, the lawyer may be taxed as such, and his right or franchise pay as other valuable property or franchises, its due proportion of the burdens of the State according to its value, to be ascertained in such manner as the Legislature may deem best. In the Virginia case we have cited, the mode adopted was to divide the lawyers into classes and ascertain the value of the profession to each class, and tax it according to such value; while this, may not reach perfect equality, it will so far approximate to it, that there can be no great injustice done — absolute equality has not and never can be attained in fixing the burdens imposed on the citizen, approximative justice is all that can be reached.

The result is, that the lawyer may be taxed, that is, his privilege may be taxed as property, but his license can not be revoked. That this privilege already granted can only be taxed on its value as other property. But that his granted privilege can not be granted in the future, because the effect of this is to revoke thaff already granted.

We need scarcely say that this does not affect in any way, the terms on which the Legislature may grant licenses in the future to persons seeking the privilege.

Opinion by

Turney, J.

In article 11, section 28 of the Constitution, it is provided: “ The Legislature shall have power to tax merchants, peddlers, and privileges, in such manner as they from time to time may direct.” The same provision is contained ' in the Constitution of 1834.

On 13th of March, 1868, the Legislature passed the following statute: “All lawyers who set themselves up as practicing attorneys, and who have been practicing the profession for five years, shall respectively pay a privilege tax of fifteen dollars.”

On 6th of July, 1870, “That the tax on privileges, be and. the same is hereby increased fifty per cent, upon the present basis.”

In the Bill of Bights it is ordained: “That all courts shall be open, and every man for injury done him in his lands, goods, person, or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay. That in all criminal prosecutions the accused hath the right to be heard by himself and his counsel.” The question to be now determined is, has the Legislature ■under and by authority of the Constitution, the rightful power to pass the statute quoted?

“Privilege is a peculiar benefit or advantage, a right or immunity not enjoyed by others, or by all; special enjoyment of a good, or exemption from an evil, or burden prerogative/ advantage.”
“Privilege among the Romans was something conferred upon an individual by a private law, and hence it denotes some peculiar benefit or advantage, some right or immunity not enjoyed by the world at large.” Deriving our language mainly from the Latin, and in many eases our words being simply anglicisms, used to render them conformable to our pronunciation, we by use of the derivative, are presumed to employ it in the sense given to the mother tongue. Bouvier says: “The word privilege, taken in its active sense, is a particular law or a particular disposition of the law, which grants certain special prerogatives to some persons, contrary to common right. In its passive sense, it is the same prerogative granted by the same particular law.”

The exercise of mental power cannot be a privilege, as it is not derived from any particular law granting special prerogatives contrary to common right, but is a common, universal right, flowing from the general law of nature, vouchsafed to every intelligent being for its advancement and happiness. An opposing idea is contradictory to the revealed account of the origin of mankind, and its preservation for thousands of years since. Such absolute natural right may when necessary to the benefit of the many, or to the protection and support of the government, and when not in contravention of good morals, be abridged by the sovereign power of the government, which is with us the people, and not otherwise. When it is proposed by constitutional provisions to contract the natural or absolute right of the citizen, it must be done in terms of easy and plain interpretation. The language used in the organic law is the language of the people, not technical; used in its most popular sense, and should be strictly construed.

Bouvier defines “a court to be an incorporeal, political being, which requires for its existence, the presence of the judges, or a competent number of them, and a clerk or prothonotary, at the time during which and at the place where it is by law authorized to be held, and the performance of some public act indicative of a design to perform the functions of a court. In another sense, the judges, clerk or prothonotary, counsellors and ministerial officers are said to constitute the court.” ' The several States of the Union, through their Supreme Courts, as well as the Supreme Court of the United States, have declared attorneys and solicitors to be officers of the court. Courts — State and Federal, are the creatures of constitutions. In them are express provisions for the appointment or election of judges and attorney-general.

“A judge is a public officer, lawfully appointed to decide litigated questions according to law.” He must not only be impartial, but he must pay a blind obedience to the law whether good or bad, he is bound to declare what the law is, and not to make it; he is not an arbitrator but an interpreter of the law. It is his duty to be patient in the investigalion of the case, learned in considering it and firm in his judgment. He ought, according to Cicero, never to lose sight that he is a .man, and that he can not exceed the power given him by his commission, that not only power, but public confidence has been given to him, that he ought always seriously to attend not to his wishes but to the requisitions of law, justice and religion.” . “An attorney-general must be learned in the law.” “An attorney at law is an officer in a court of justice, who is employed by a party in a cause to manage the same for him as his advocate.” These were the well established definitions of the office and officers embraced in them, long before the organization of our State or Federal Government, made and announced by the country whence we derive our law, and must be understood to have been used and referred to by the framers of constitutions, in the sense and meaning given to them by the pet) pie from whom we borrowed them, and in our establishment of courts to have embraced lawyers, not only as officers of, but as essential constituents in the machinery of the judiciary. The terms impart the one idea, “ learned in the law,” to be which, practice is absolutely necessary. A court without lawyers would be a ridiculous and empty show, a farce. It would be impossible to have fixed or well defined rules; soon its proceedings and decisions would be a hotchpot of confusion and error, and the provision in the declaration of rights, “That all courts shall be kept open, and evéry man for an injury done him in his lands, goods, person ór reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay” — a dead letter. . Confine the definition of court to judge, make it his duty to try all causes, discover and determine all questions arising from the facts, first eliciting the facts' for and by himself, and every appearance of the administration of right and justice is gone. "Without the aid of lawyers, (officers of the court) it would be utterly impossible for any judge or number of judges to pay a blind obedience to law, declare it and not make it, and seriously attend to the requisitions of the law. Without the investigation out of court, and their presentation in court by lawyers, certainly no sane mind would assume to discharge the duties of judge.

The rights of an attorney in his capacity as such, are the rights of the people, involving their lives, liberty and property, necessary to the well being and good order of 'society, and absolutely indispensable to the safety of all well appointed governments.

It is insisted, that by the language in section 28, of article 2, of the Constitution: a power is conferred upon the legislature to tax the practice of law as a privilege. Allowing to the term a more restricted meaning than the one given, and still the clause quoted from, does not grant the authority claimed. The word “privilege” in the sentence has reference and is to be interpreted by the preceding words merchants and peddlers. In Sandman v. Beach, 7 Barn. & Cress., Lord Tenderdon, C. J., delivering the opinion of the Queen’s Bench, said; “It was objected that the plaintiff in this case should not recover, because the contract for the breach of which the action was brought, was to have been performed on the Sabbath day, and that it could not legally be performed on that day. But upon looking into the statute, 3 Car. 1, c. 1, and 29 Car., 2, c. 7, upon which the objection was founded, we are of the opinion, that this case does not come within them. By the first of these it was enacted, that no carrier with any horse, nor wagonman with any wagon, nor cartman with any cart, nor wainman with any wain, nor drover with any cattle, should by themselves, or any other, travel on the Lord’s day.

“By 29 Car., 2, That no tradesman, workman, laborer, or other person or persons, shall do or exercise any worldly labor, business or work of their ordinary calling upon the. Lord’s day.

“ It was contended that under the words person or persons, the drivers of stage coaches were included. But token general words follow particular ones, the rule is to construe them as applicable to persons ejusdem generis; considering here that by 3 Car., 1, carriers of a certain description are mentioned, and 29 Car., 2, drivers, horse coursers, wagoners, and travellers of a certain description are specially mentioned, we think that the words other person or persons cannot have been used in a sense large enough to include the owner and driver of a stage coach.”

In this case, the clause relied on to sustain the act of the Legislature, specially names the class to be taxed, and the word “privileges” was intended to embrace trades or professions similar in character, and limits the legislative power of taxation to them.

The statute requiring a license, is a police regulation of like nature of others required in the. exercise of all public duty for general good, not confined to any man or class of men, and not in derogation of common right.

The right to practice law is the right of thought and mental labor, common to all, untramelled by constitutional regulations. The statute taxing it is void.

Opinion by

Deaderick, J.

The fifth section of the act of Assembly, passed March 13th, 1868, provides amongst other things, that “all lawyers who set themselves as practicing attorneys, and who shall have been practicing the profession for five years, shall respectively pay a privilege tax of fifteen dollars.” The act further provides that the person so engaged shall obtain an annual license from the Clerk of the County Court, to whom the tax shall be paid: Shank. Stat., 198-9.

The question of the validity of this statute is involved in this case. By the plaintiff in error it is insisted, that the act is unconstitutional, the legislature having under the Constitution of the State, no power to impose' such a tax. On the other hand, it is contended, that the power is conferred by art. 2, s. 28, of the instrument. That section declares that “ all property, real, personal, or mixed, shall be taxed,” allowing the legislature to exempt from taxation such property as may be held by the State, by counties, .cities, or towns, and used exclusively for public or corporation purposes, or such as may be held and used for purposes purely religious, charitable, scientific, literary or educational, etc. It is further declared in said section, that “all property shall be taxed according to its value, that value to be ascertained in such manner the Legislature may direct,” etc., “that taxes shall be equal and uniform throughout the State. No one species of property from which a tax may be collected, shall be taxed higher than any other species of property of the same value. But the Legislature shall have power to tax merchants, peddlers, and privileges, in such manner as they may from time to time direct.”

The manner of imposing taxes on property, real, personal, or mixed, is prescribed in the fundamental law to be according to its value, so that taxes on property shall be equal and uniform throughout the State. But in regard to the taxes on merchants, peddlers, and privileges, the rule of the Constitution is, that the Legislature may tax them “ in such manner as they may from time to time direct.” The distinction between “property” real, personal, or mixed, and “privileges” as the subject of taxation, and as to the rule by which such taxation is to be imposed, is so clearly defined in the language of the Constitution already quoted, that it can hardly be made more plain by interpretation or by authority. This distinction is recognized in the case of Adams v. Mayor and Aldermen of Somerville, 2 Head, 363, where it is said that “an important and fundamental discrimination is made between property and privileges, by the Constitution.” The rule laid down as to the former is, that ‘all prop erty shall be taxed according to its value.’ But the rule as to privileges, is, the discretion of the legislature, the latter to be taxed in such manner as may from time to time be directed.”

Judge McKinney further says, “the principle of taxation applicable to property, is altogether impracticable in regard to privileges. It is obviously necessary and proper that the exercise. of the power to impose a tax, should be left to a sound discretion; because no definite rule based upon a supposed equality of value, can .be prescribed as respects what are denominated privileges:” lb. 366-7.

In Cooley’s Const. Lim., 496, it is said, “that there are some kinds of taxes not usually assessed according to the value of the property, and some which could not be thus assessed. And there is probably no state which does not levy other taxes than those which are imposed upon property. Every burden which the state imposes upon its citizens with a view to a revenue, is levied under the power of taxation, whether imposed under the name of tax or under some other designation. The license fees which are sometimes required to be paid by those who follow employment, are, when for purposes of revenue, taxes.

A privilege has been defined by this Court to be a license or permission upon specified terms, to do that which is in general prohibited: 1 Hum., 98; 3 Heis., 283. This definition would seem to comprehend as amongst privileged employments, the practice of the profession of law.

Our statutes prescribe as a condition upon which anyone shall be allowed to practice law, in the courts of this State — that he shall first obtain a license from two judges, or from any law school in the State, and to entitle him to such license, he shal] obtain from the County Court of the county where he has usually resided, a certificate that he is twenty-one years pf age, and is a man of good moral character; upon these terms and upon taking the prescribed oaths, he is permitted to practice law in the different courts of the state. This license to practice law is to him a privilege not granted to others, and one he ha¿ no right to exercise without complying with the terms specified. In Ex parte Garland, 4 Wall., 378, it is said, the lawyer holds his office during good behavior, and can only be deprived of it for misconduct, ascertained and declared by judgment of the court after opportunity to be heard has been afforded.

In Garland’s case, an effort was made to deprive him of a previously acquired right to practice law, not because of any misconduct against' which he has had an opportunity to defend himself, but by requiring him to take an oath, which he could not take without committing perjury. The court held the act of Congress requiring such oath to be taken by attorneys previously licensed in said court, to be unconstitutional, as partaking of the nature of a bill of pains and penalties. The object of the act was unmistakably to deprive, those of' Garland’s antecedents from the exercise of a right to practice law previously acquired, by annexing to the exercise of the right impossible conditions.

But the question in this case is, not whether the defendant shall be deprived of the right to practice law, by forbidding the exercise of the right, or by annexing conditions impossible of performance, but whether having been licensed and permitted to practice, he may be taxed for the privilege granted by the State. The purpose of the Legislature in the passage of the law was not to interfere with, so as to prevent the exercise of the right, but in the legitimate exercise of the power to levy a tax upon a privilege for the purpose of raising revenue.

Taxes are defined to be burdens or charges imposed by the legislative power upon persons or property, to raise money for public purposes. The power to tax rests upon necessity, and no constitutional government can exist without it. In the case of Jenkins v. Ewin, Nashville, December Term, 1871, it was held by this Court, Nicholson, C. J., delivering the opinion of the Court, that the Constitution of the State does not confer upon the Legislature the power of taxation, it passes under the general designation of " legislative power.”

There is no limitation upon the Legislature as to the amownt or objects of taxation, except that found in the restrictions and prohibitions of the Constitution. This power of taxation is so unlimited in force, and pervading in extent when not restrained by the Constitution, that the courts scarcely venture to declare that it is subject to any restrictions, except such as rest in the discretion of the authority which exercises it. It reaches, to every trade and occupation j every object of industry, use or enjoyment; and tbe responsibility of tbe legislator to his constituents, is generally considered a sufficient security against erroneous or oppressive taxation: Cooley’s Const. Lim., 479-80; 1 Am. R., 52; 18 How., 282.

The Constitution of Tennessee confers upon the Legislature the power to tax privileges, as clearly and as distinctly as it confers the power to tax land. If then the right to practice law is a privilege, which I understand the majority of the Court to concede, it would seem to follow conclusively, that the Legislature may impose a tax upon it.

There is no violation of a contract entered into by the State, by the imposition of the tax. The State has conferred a privilege upon which she had the reserved right to impose a tax whenever she saw fit to do so, or whenever it became necessary to raise revenue in. this mode for public purposes. There never was any limitation in the Constitution to such a tax, on the contrary an express authority for it, if authority were needed from that instrument.

If the legislature has the power to tax the lawyer, it may of course adopt measures to enforce the payment of the tax. But it is said, conceding the right to tax; and the right to adopt means of collecting the tax, still, such measures have been adopted by the act, as amount to a denial of the right, if the act is not complied with; as for example, the requirement to take out an annual license upon payment of the tax. This is but a. provision of the law to compel the payment of the tax, and contains no prohibition against the exercise of the right; but construing the law as prohibiting the exercise of the privilege, if the tax is not paid, still, the sole object is to enforce the payment; and if the tax may be rightfully levied, such measures for its collection and to enforce its payment as may be necessary for that purpose may be adopted. And if the legislature may tax the privilege, it may not be lawfully exercised without the payment of the tax, and the legislature may so declare.

In the case already cited in 2 Head, 363, the corporation imposed a double tax for failure to procure license, and the objection was taken that the mode of imposing the tax, as differing from the principle and mode prescribed by the general law. But this Court held that such double tax, might be imposed, and that the rule as to taxation of property and privileges was different, and as to the latter, the legislature may tax in such manner as they may from time to time direct. Admitting lawyers to be a necessary element in any judicial system, the most plausible argument against the legislature to impose the tax, is in my opinion, that which is founded upon the inhibition of one department of the government to interfere with the rights and powers of the other departments.

We are not to presume that a co-ordinate power of the government would abuse its power by imposing a tax upon the lawyer,- that would operate as an inhibition upon the practice of his profession, or that it Would so tax land or other property as to practically destroy its value or confiscate it; nor is it necessary in this case to discuss the question as to how far, if at all, the courts could interfere, if a system of legislation for such purposes and binding to such results, were adopted. Abuses of this character are so improbable that the remedy, then in the hands of the people, in the frequently recurring elections, would be speedily applied.

This Court has therefore upheld the power of the legislature to impose a tax upon suits which may be brought into the courts. This power had been exercised for many years without question, when in a recent case the imposition of the tax was resisted. It would seem that such a tax by the legislature wa*s quite as much an interference with the judicial department of the government as the tax upon lawyers.

I am therefore of opinion, that the act imposing a tax upon lawyers, is not only not prohibited by the Constitution, but is fully authorized by that clause giving the legislature power to tax privileges.

Judge Sneed concurs in the foregoing conclusion.

Nicholson, C. J.,

announced the following as the result of the opinions of the judges.

A majority of the Court hold the act taxing the privilege of practicing law to be unconstitutional; two judges, Turney and Nicholson, holding that the right to practice law is not subject to taxation; two judges, Freeman and McFarland, holding that, even conceding that the legislature may tax the privilege of a lawyer, the present act is unconstitutional, because it requires a new license to be taken out from the Clerk of the County Court, and in connection with the previous laws, makes it unlawful to practice without so doing; two judges, Deaderick and Sneed, holding that the present act is constitutional and valid. Judgment will be entered in the case accordingly.  