
    MATTER OF THE GRADUATES.
    
      Supreme Court, First District;
    
    
      General Term, May, 1860.
    Attorneys.—Admission to the Bab.—Constitutional Law.
    The Legislature have no power to confer upon any other body than the Supreme Court the right and power of ascertaining and determining the qualification and admission of candidates for the bar.
    The act of April 6, 1860 {Laws of 1860, ch. 187), providing that any graduate of the Law Department of the University of the city of New York, shall be admitted, upon his diploma, to practise,—is unconstitutional.
    
      In the matter of the admission of the graduates of the Law Department of the University of the city of Hew York to practise as attorneys and counsellors of this court.
   By the Court.—Sutherland, J.

—A motion is made in behalf of twenty-two young gentlemen, graduates of the Law Department of the University of the city of Hew York, for their admission to practise as attorneys and counsellors of this court, under a recent act of the Legislature of this State. (Chap. 187, passed April 6,1860.)

The act is entitled “ An act with reference to the University of the city of Hew York.”

The first section of the act is as follows: “ The faculty of law of the University of the city of Hew York, are hereby constituted a committee, upon whose examination and recommendation, as evinced by the degree of Bachelor of Laws, conferred upon their recommendation by the council of the University, any graduate of the Law Department shall be admitted to practise as attorney and counsellor at law in all tire courts of the State; but no diploma shall be sufficient for such admission, which shall be given for a period of attendance upon said Law Department less than three terms of twelve weeks each, or than two terms of twelve weeks each, with one year’s study of the law elsewhere.”

This motion is made on the certificates of the individuals composing the faculty of law of the said University, certifying that these twenty-two young gentlemen “ have attended the Law Department of the said University for two terms of twelve weeks each, and have pursued the study of law one year elsewhere and further certifying, that upon their recommendation, after a thorough and critical examination by them, the council of the University had conferred upon these young gentlemen the degree of Bachelor of Laws.

"We are inclined to think that the diplomas themselves should have been produced, as the best evidence of their having been conferred on the applicants; but as the certificate leaves no room for doubt that the diplomas have been conferred on the applicants in accordance with the act, we should at once direct an order for their admission to he entered on the production of their diplomas, and filing the certificate, if there were not other and more serious objections to their admission under this act.

After a careful examination of the question, we think the Legislature had no constitutional right or power to pass the act, and thus take away from this court the right and power which it has heretofore exercised, of ascertaining and determining for itself, and under its own rules and regulations, whether the applicants are of the class or description of persons by the constitution entitled to admission, and have the requisite constitutional qualifications of learning, and ability, and moral character.

By Section 8, of Article VII., of the Constitution: “ Any male citizen of the age of twenty-one years, of good moral character, and who possesses the requisite qualifications of learning and ability, shall be entitled to admission to practise in all the courts of this State.”

We think the act in question conflicts with this provision of the constitution in more than one respect.

1. The constitution in effect declares, that the applicant to be entitled to admission must be a male citizen, and of the age of twenty-one years.

The act in effect declares, that any graduate of the Law Department of the University, irrespective of sex, age, or citizenship, upon whom the diploma has been conferred under the circumstances mentioned in the act, shall be admitted to practise, &c. (See McKeon a. Devries, 3 Barb., 196.)

If the act is constitutional and valid, on application for admission under it, it would appear to leave for the court a ministerial, formal duty only, and which could as well be performed by the clerk or the crier as by the court.

The act would appear to make the diploma conferred by the council of the University conclusive evidence to the court, not only that the applicant is possessed of the requisite qualifications of learning, ability, and good moral character, but also, that the applicant is of the age of twenty-one years, and a male citizen; thus taking from the court all right of inquiry into any of these circumstances, and all judicial discretion and control as to or over the applicant’s admission.

If constitutional, the act is in effect a legislative mandamus to the court to admit, on the presentation of the diploma, and satisfactory evidence that it had given for a period of attendance upon the Law Department of the University, or of such attendance with one year’s study of the law elsewhere, not less than that specified in the act.

This mere ministerial duty, which the act would appear to leave the court, and which this motion assumes the court should perform in the usual way, hy directing an order for the admission of the applicants to be entered, and by granting them the usual diplomas or licenses to practise, would appear to be not only useless, but inconsistent:—useless, because, if the diploma of the council of the University is, or should be, sufficient evidence of the applicant’s constitutional qualifications to authorize the court to grant its license, then the diploma of the council of the University is, or should be, sufficient evidence of the applicant’s qualifications and right to practise, without any other, or further diploma from the court; and inconsistent, because the license or diploma of the court would be, or ought to be, substantially a certificate, that the applicant has the constitutional qualifications and right to practise; but how can the court give this certificate on the mere certificate or diploma of the council of the University, which certificate or diploma of the council has been conferred on the mere certificate or recommendation of the faculty of law of the University, a body constituted or composed no doubt of individuals of great learning and discretion, but not appointed or appointable by, or deriving any authority from the court, and in no way controllable by or responsible to the court %

Indeed, if the Legislature had the constitutional right and power to constitute the faculty of law of the University a committee to ascertain, determine, and certify to the constitutional qualifications of the applicants, and intended to do so by this act, why was the act so worded as to require or imply that an application for admission should be made to the court, and that the court should also grant a diploma or license ? If the main purpose of the act was authorized by the constitution, why was the mere useless ceremony of an application for, and of the court’s granting a license retained ? What higher authority, or better evidence of his right to practise, on taking the oath of office, could the applicant have or require, than the constitution, the act of the Legislature, and the diploma specified in the act, and conferred on him under the circumstances specified in the act ? Is not the application for admission to, and the granting of a license by, the court, which this motion assumes to be required, and which probably is required or implied by the act, inconsistent with the main purpose of the act?

2. We are inclined' to think, that the proviso or condition of the act, which declares that no diploma (of the council of the University) shall be sufficient for such admission, unless given for an attendance upon the Law Department of the University, with or without one year’s study of the law elsewhere, for not less than certain terms or periods specified in the act, brings the act in conflict with the constitutional provision, and may in effect be considered as nullifying the act.

The constitution prescribes no term or period of clerkship, or of study, or standard of learning or ability, upon or by which the applicant is to be examined, admitted, or rejected. On the contrary, it is plain that the constitution intended to regulate and limit the power which the court then had over the admission of attorneys, &c., and to abolish the right and practice of requiring by certain prescribed rules and regulations a certain period of clerkship, or study of the law, as a preliminary or condition to the right of an examination for admission. The constitution says, “ cmy male citizen of the age of twenty-one years, of good moral character, &c., shall be entitled,” &c. If the applicant for admission is a citizen, and of the age and sex mentioned in the constitutional provision, the constitution in effect appoints him to the office of attorney, &c., upon his character and the extent and sufficiency of his learning and ability being ascertained and passed upon favorably. The constitutional provision would certainly appear to be inconsistent with any right of the Legislature or of this court to impose upon the candidate for admission the terms or conditions of attendance upon the Law Department of the University, specified in the act in question, or, indeed, any prescribed course or term of study or preparation at the University, or elsewhere, as a condition of examination. The act declares that the diploma conferred by the council of the University, shall not be sufficient evidence for the applicant’s admission, unless given for a period of attendance upon the Law Department, &c., of not less than that specified in the act. Then, conceding that the Legislature had the constitutional right to declare that the diploma of the cbiwr cil of the University should be sufficient evidence of the qualifications and right to admission of the law-students of the University, why does not this unauthorized condition of a certain period of attendance upon its Law Department, imposed by the statute, whether for the benefit of the students, the profession, the professors, or the University, it is unnecessary now to inquire, completely nullify the act ? The act would appear to present an instance of a legislative felo de se.

It is certainly quite clear, if this proviso or condition does not destroy the act, and the Legislature had the right to declare that the diplomas conferred by the council of the University should be sufficient evidence, &c., that the applicants should be admitted on the presentation of their diplomas alone, and without requiring of them any evidence of a certain period of attendance upon the Law Department of the University, or of the study of the law elsewhere.

3. But the important question raised by this motion is, whether the convention which framed the constitution, did not intend, by the provision before quoted, to leave or vest in this court the appointment of its attorneys and counsellors, and the strictly discretionary and quasi judicial power and corresponding duty, of ascertaining and passing upon the constitutional qualifications required for appointment to those offices implied in the right of appointment. This is the important question, because the Legislature, if it has the right to confer this discretionary power on the faculty of law, or council of the University of Rew York, has the right to confer it on any committee, tribunal, person, or officer; and the Legislature may not always exercise this right as discreetly as they have by the act in question.

We are inclined to think, from the express words of the provision of the constitution, that the intention of its framers was to leave or vest in this court the right of appointing its own attorneys and counsellors, and the right of ascertaining and passing upon the requisite qualifications of applicants, by and through its own committee of examination.

The words of the constitution are, “ Any male citizen of the age of twenty-one year’s, &c., of good moral character, and who possesses the requisite qualifications, &c., shall be entitled to admission.” &c.

Shall be entitled to admission by whom ? By whom but the court ? What does the word admit, or do the words to admit, mean ? To grant leave; to grant leave to enter into. Does not the right of granting leave, imply the right of refusal of leave; and do not the words of the constitution plainly imply that the court shall have this right; and does not this right or power of granting or refusing leave, imply, in the absence of any other express provision of the constitution on the subject, the right and duty of ascertaining and passing upon the qualifications of applicants for admission ? If the words of the constitution had been, “ shall be entitled to admission” by the eov/rt or courts, there could not have been a doubt that the provision was intended to leave with the court, subject to the limitations or restrictions implied by the provision, the whole subject of the admission of its attorneys and counsellors, and the exclusive power and duty of passing upon their qualifications, and the right of admission.

Suppose the constitution declared that any stenographic reporter, of the requisite qualifications, &c., should be entitled to enter the halls of the Legislature for the purpose of reporting its proceedings: would not such a declaration or provision imply and vest in the Legislature the quasi judicial power and discretion of passing upon the qualifications of every reporter who applied for admission, or leave to enter, for such purpose ?

A brief reference to the circumstances under which the provision in question was inserted in the constitution, would appear to leave no room to doubt that it was the intention to leave with the courts the power, discretion, and duty in question.

The constitution of 1777 (sec. 27) gave the appointment of attorneys, &c., to the courts, without any limitation. Under it,the court could admit minors or aliens; the court having and exercising indeed full discretion and power over the whole subject. (1 Johns., 528; 4 Ib., 192.)

The constitution of 1822 does not allude to the subject, nor indeed to the power or jurisdiction of the-Supreme Court, simply speaking of it as a court already in existence. (Article 5, sec. 4.)

By the. Revised Statutes, attorneys, &c., were defined to be, not only public officers, but judicial officers; and in the absence. of any provision made for their appointment in the constitution of 1822, the Revised Statutes declared, that they should be appointed and licensed to practise by the several courts in which they intended to practise, and that the Supreme Court should prescribe the rules and regulations under which they should be appointed and licensed in that court. Previous to the Revised Statutes, they were considered, and had been judicially held to be, not only officers of the court, but public officers. (1 Hopk. Ch. R., 6; 2 Cow., 13.) Section 3 of article 6 of the constitution of 1846, declares and confirms the general jurisdiction of this court; and section 5 of the same article must operate, and was probably intended to operate, as a limitation of the powers of the Legislature over its jurisdiction and proceedings; then follows, in connection, the provision in section 8 of the same article, in relation to the admission of attorneys and counsellors to practise. This provision of the constitution of 1846 must be presumed to have been adopted with knowledge of this power of the court, and of the rules and regulations which had been prescribed by it, and then in force, under which it was exercised.

This provision of the constitution of 1846 should be looked upon as a mere limitation or regulation of a recognized and conceded power of the courts; and the principle which should control its construction is, that the mere limitation or regulation of a political or governmental power or trust by the sovereign power (for the convention which framed the constitution represented, and the people who ratified it were and are, the sovereign power, and not the Legislature), should be considered as leaving and confirming the power as thus limited or regulated in the tribunal or officer, exercising, and authorized to exercise such power, in the absence of any express declaration or provision of the sovereign power to the contrary, or inconsistent with such construction.

To adopt this principle in the construction of this provision of the constitution, would be merely recognizing and applying, in its construction, the common-law principle in the construction of a statute altering or modifying a common-law rule, or impairing a recognized right, viz.: that such statute is not to be deemed as intended to alter or modify the common-law rule, or impair the right, any further than the express words of the statute demand.

If the Legislature has the power assumed by passing the act in question, it must be under the general grant of legislative power in the constitution, or under the provision (art. 10, sec. 2) which expressly gives the Legislature power to provide for the election or appointment of all officers whose election or appointment is not' provided for by the constitution, and all officers whose offices should thereafter be created by law.

When the constitution grants a power, or enjoins the performance of a duty, it is useless and nugatory for the Legislature to do the same thing, for the constitution is supreme. The constitution and the act in question both say that certain applicants shall be admitted to practise as attorney, &c. The constitution leaves nothing to be ascertained and passed upon judicially, but the qualifications of the applicants. It is very clear, therefore, that the act can have, and was not intended to have, any other or further force or effect, than to confer on the faculty of law of the University the discretionary or judicial power of ascertaining and passing upon the qualifications of the applicants, and to make the diplomas of the council of the University evidence of the sufficiency of their qualifications, instead of the license or diploma of the court.

Now it will hardly be claimed that the Legislature had the right to confer this power, under the general grant of the power of legislation. The general provision before adverted to (art. 10, sec. 2), giving express power to the Legislature to provide for the appointment or election of all officers whose appointment or election is not provided for by the constitution, would go to show that the right to pass the act could not be claimed under the general grant of legislative power. By the very terms of the provision in art. 10, sec. 2, it does not give the right, if the appointment of attorneys, &c., is provided for in section 8 of art. 6.

We have given our reasons for thinking that the last-mentioned section, construed in connection with sections 3 and 5 of the same article, declaring and confirming the general jurisdiction of the court, and limiting the powers of the Legislature over its jurisdiction and proceedings, do give to, or confirm in the court, the right of appointment, and the exclusive power of ascertaining, through a committee of its own, or otherwise, the qualifications of all applicants.

If we are right in our views of the question, it follows that the Legislature had no power to pass the act in question.

If the power is in the court, it is a public trust, and the court has no right to surrender it, or the Legislature to assume it, or confer it on any committee, person, or officer, constituted or appointed by it.

In this day of easy legislation, and of omnipotent majorities, it is the duty of this court to ward off all unauthorized attacks by the Legislature on the legitimate powers or jurisdiction of the court.

We do not say that we have not the power to consider the diplomas conferred on the applicants under the act sufficient evidence of their qualifications, and to admit them on furnishing the evidence of citizenship, age, &c., required by the second rule of the court; or if thus admitted and licensed by the court, that their right to practise could be questioned on the ground of the unconstitutionality of the act.

An imperfect or improper exercise of a power of appointment may not, in all cases, affect the appointee’s title.

But we do intend to say, that, in our opinion, the Legislature had no right to declare that the diplomas conferred under the act shall be sufficient evidence of the requisite learning and ability of the applicants, and shall entitle them to admission, either with or without the evidence of moral character, citizenship, and age, required by the second rule of the court; or with or without evidence of their attendance in the University, and of their study of law elsewhere, for the period or terms mentioned in the act; and that, in our judgment, they ought not to be admitted without submitting to the usual examination, which they, or such of them as desire it, can have at an early day, by complying with the second rule of the court.

In the matter of the application of several graduates of the Law School of Columbia College to be admitted to practise as attorneys and counsellors of this court.

On a subsequent day of the term a similar application was made to the court on behalf of graduates of the Law School of Columbia College.

Prof. Dwight, of the faculty of the Law School, made the following .points in support of the application.—I. By the common law the court had no power to admit an attorney.

II. The power of the court to do so rests solely upon statute, both in this country and in England. During the colonial-period, down to 1777, the governor of the State issued a command to the justices to admit, which command the justices obeyed.

III. That the act of April 7, 1860, under which the applicants claimed to be entitled to admission, was within the legislative power.

Bonney, J. —By the act entitled “ An act relative to the Law School of Columbia College,” passed April 7,1860, it is enacted, that the professors in the Law School of Columbia College, and the law committee of the trustees of said college, are constituted a committee, any three of whom, being counsellors at law, shall form a quorum, upon whose examination 'and recommendation, as evidenced by the diploma bf said college, granted upon such recommendation, any graduate of sañd Law School shall he admitted to practise as an attorney and counsellor at la/w, in all the courts of this State; and that no diploma shall be sufficient for such admission, which is given for any period of attendance upon the said school for a term less than eighteen months'; but this period of eighteen months shall not apply to the members of the present senior class in said Law School, who may he admitted to practise as aforesaid upon the examination and recommendation of said committee, and upon the evidence of the diploma of the college; and all acts and parts of acts inconsistent with said act are repealed.

Under this act, several members of the present senior class of Columbia College now apply to' be admitted to practise in this court.

They present to the court, as evidence of their right to such admission:

1. A certificate, dated 21st Hay, 1860, made by the law committee of said college, to the effect, that said committee, being severally of the degree of counsellor at law in this court, and having, with the assistance of the professor of municipal law in said school, duly and thoroughly examined the several persons therein named, being members of the present senior class of said Law School, do find, certify, and report them, and each of them, to be well and sufficiently qualified to receive the diploma of Bachelor of Laws from said college, to practise as attorney and counsellor at law in all the courts of the State of Yew York.

2. An order of the trustees of the college, dated 21st May, 1860, whereby, after reciting that the same persons named in said certificate were duly recommended for the degree of Bachelor of Laws, it is ordered, that the degree of Bachelor of Laws be conferred on them.

3. Diplomas of said college, dated 22d May, 1860, by which, the trustees of the college declare and make known:

That, under the authority of their charter and of the act of April 7,1860, above-mentioned, they have caused the same persons named in said certificate and order, being members of the present senior class of the Law School of the college, to be examined by the professor of said school, and by the law committee of the college; that the said examiners have recommended such persons as in all respects fully qualified to receive the degree of Bachelor of Laws; and that on such examination and recommendation, said trustees admit such persons respectively to said degree, conferring on them all the rights and privileges anywhere recognized as belonging to that degree—constituting them graduates of said Law School—and granting them such diploma, as evidence that they respectively are entitled to said degree, and also, pursuant to the provisions of said act, to he admitted to practise as attorneys and counsellors at law in all the courts of the State of New York.

The constitution of this State, adopted in 1846, provides (Article 6, § 8), that “ any male citizen, of the age of twenty-one years, of good moral character, and who possesses the requisite qualifications of learning and ability, shall be entitled; to admission to practise in all the courts of this State.”

The Revised Statutes of 1830 provide, that counsellors, solicitors, and attorneys shall be appointed and admitted to practise by the courts in which they intend to practise; that the Supreme Court shall prescribe the rules and regulations under which counsellors and attorneys shall be appointed and licensed therein ; that no person shall he admitted unless approved by the court for his good character and learning; that, on admission, they shall take and subscribe the oath of office, and that they shall be regulated by the rules and orders of the court, and subject to be removed or suspended by the court for any deceit, malpractice, or misdemeanor; and these statutes were in force when the present constitution was framed and adopted.

The rules of the court—prepared, revised, and adopted pursuant to section 470 of the Code—provide, that applicants for admission to practise as attorneys and counsellors, who are entitled to examination, shall be examined in open court; that such examination shall be had at general term, at prescribed times, and at no other time or place, and that no private examination shall be permitted; and that to entitle him to examination, the applicant must prove to the court—

That he is a citizen of the United States, is twenty-one years of age, is a resident of the district in which he applies, and is of good moral character; and that every applicant must sustain a satisfactory examination upon prescribed subjects, and, if admitted, must sign a roll and subscribe and take the constitutional oath of office.

The act of 7th April last, in relation to the Law School of Columbia College, under which the present application is made, purports to constitute certain persons therein designated a committee, upon whose examination and recommendation, as evidenced by a diploma granted thereon, any graduate of said Law School shall be admitted to practise as an attorney and counsellor at law-in all the courts of this State.

The certificate, order, and diplomas now presented, purport . only that the persons therein named have been examined as in the act of April 7 provided, and on such examination, found to be duly qualified to receive the degree of Bachelor of Laws— and thereupon diplomas have been issued to them as evidence that they are entitled to that degree, and, under the act, to be admitted to practise as attorneys and counsellors.

They do not state, nor is any evidence offered to show, that the persons in the diplomas named cure citizens, or twenty-one years of age, or of good moral character, as required by the constitution.

Or that they are residents of this judicial district, as required by the rules. Of these several facts, therefore, which are made prerequisites to an examination, other evidence must necessarily be given, and, we presume, can be furnished, and may be filed according to the usual practice.

As to the remaining and principal question arising on the present application, it has been decided, at the present general term of this court, in the matter of the application for admission of the graduates of the Law Department of the University in this city to practise, &c., that the Legislature has no power, under the constitution of this State, to make a diploma, conferred by a law university, sufficient evidence that the applicant for admission has the proper qualifications of learning and ability to entitle him to a license; in other words, it has been held by this court, that the right and duty to examine, inquire, and determine whether or not an applicant for admission to practise, as an attorney and counsellor of this court, is qualified for and entitled to such admission, is, by the constitution, vested in the court; that the Legislature cannot take that right from the court, and that the court, however willing to be relieved from the performance of the duty imposed, cannot decline it.

In relation to this question, the act of the Legislature now before us does not materially diffef from the act relative to the Law Schools of' the University, and the principle of the decision made in that matter applies to and must determine the present application; and, however good cause the court may have to believe that the persons in whose behalf this application is made have been thoroughly examined, as.certified by the papers presented, and found to possess the requisite qualifications to entitle them to admission to practise, the present application must be denied, for the reason that the requisite legal evidence that they possess such qualifications is not before us. 
      
      Present, Sutherland, P. J., Leonard and Mullen, JJ.
     