
    LEGISLATURE WITHOUT AUTHORITY TO VACATE AN ORDER OF DISBARMENT.
    Common Pleas Court of Lucas County.
    In re Charles A. Thatcher.
    Decided, February, 1912.
    
      ConstiUitiondl Law — Conferring ‘of Authority to Practice Law a Judicial Act — Charles A. Thatcher’s Reinstatement by the General Assembly Without Effect — Judicial and Ministerial Acts.
    
    1. Where one claims the right to practice law by virtue of a special act of the Legislature appointing him to be an attorney at law, and objection is made to his participation as an attorney at law-in the trial of a case then pending, no question of his fitness to occupy the office of an attorney at law is raised, but the court is' required to determine his right to practice, and in so doing will determine the constitutionality of the act under which it is . claimed such authority was conferred.
    2. While the Gteheral Assembly may enact laws prescribing the qualifications necessary for admission to the bar, and may also provide for disbarment in cases where the commission of certain offendes has been satisfactorily established, authority to admit an applicant to the privileges of an attorney at law involves the exercise of judicial power, and an attempt by the General Assembly to exercise such authority is an attempt to exercise judicial power, and is void and without effect.
   Brough, J.;

Mantón, J., concurs; Chittenden, J., concurs in a separate opinion; Johnson, J., dissents.

On the 25th day of June, 1909, by a decree of the Supreme Court of this state, the respondent, Charles A. Thatcher, was denied the right and privilege of longer practicing law in the state of Ohio. Some time thereafter the respondent made application to the Supreme Court for a modification of this- decree, which application was denied. On April 18th, 1911, the General Assembly of the state of Ohio passed an act, which later-became a law, which, by its terms, authorized and empowered Charles A. Thatcher to appear as an attorney and counselor at. law in all the courts of record of the state of Ohio, and all.the rights and privileges of an attorney and counselor at law were granted to and conferred upon him by said act. The said act further provided, “On his taking an oath of office before any person authorized to administer an oath, the said courts are directed to receive him as such attorney and counselor at law.”

On the 16th day of January, 1912, Charles A. Thatcher, the respondent, appeared before a branch of this court, as one of the attorneys for the plaintiff in the ease of McG-ough against the receiver of the Wheeling & Lake Erie Eailroad Company. The attorney for the receiver objected to the respondent appearing as an attorney in the trial of the cause. The respondent insisted upon his right to appear, notwithstanding the objection. Thereupon the court, with all four judges sitting, ordered that the case on trial be continued and the matter of the objection be set specially for hearing. Upon the date set the matter was ordered to be separately docketed and heard independently of the case in which the objection was raised. The matter was thereupon heard by the court and taken under advisement.

Eespondent denies the right of the court to determine, in this proceeding, the question of his right to practice under the special aet of the Legislature. The respondent having presented himself at the trial table in a cause regularly assigned and called for trial, and having claimed the right to appear before this court as a member of its bar, and that right having been questioned, it becomes the duty of the court to determine his standing as an attorney. And the fact that the constitutionality of an act of the Legislature is necessarily involved in a determination of this question can not, in the opinion of the court, 'alter the situation. Eespondent insists that by virtue of the legislative enactment referred to, he has a right to appear before the court as a.n attorney, and the court must determine the question.

The question thus presented to the court in nowise involves an inquiry into the fitness of the respondent to occupy the office or position of an attorney. The sole question which we are called upon to consider, and which we have considered and will pass upon, is the effect to be given to the aet of the Legislature authorizing and permitting respondent to appear before this court as an attorney and counselor at law under the cireumstances. This necessarily involves a determination of the constitutionality of the act in question.

Is this act in conflict with the Constitution?

The Constitution of the state is its fundamental law. It is the body of rules and principles enacted by the people themselves, and under which they consent to live and be governed. Until abrogated by the people, it is the paramount law. The people themselves adopt the Constitution by referendum vote, and no department of the state government can do any act in contravention of its provisions.

Judge Cooley, in his great work on “Constitutional Limitations,” says:

“A constitution is sometimes defined as the fundamental law of a state, containing the principles upon which the government is .founded, regulating the division of the sovereign powers, and directing to what persons each of these powers is to be confided, and the manner in which it is to be exercised. Perhaps an equally complete and accurate definition would be, that body of rules and maxims in accordance with which the powers of sovereignty are habitually exercised.”

And further, page 5:

“In American constitutional law, the word ‘Constitution’ is used in a restricted sense, as implying the written instruments agreed upon by the people of the Union or of any one of the states as the absolute rule of action and decision of all departments and officers of the government in respect to the points covered by it, which must control until it shall be changed by 'the authority which established it, and in opposition to which any act or regulation of any such department or officer, or even of the people themselves, will be altogether void.”

Where an act of the Legislature is in conflict with, or is at variance with the. Constitution, which is the fundamental law, the Constitution must be preferred. In other words, the intention of the people as expressed in the Constitution must be preferred to the legislative act, which is merely an expression of-the intention of their agents; and wherever the will of the Legislature, declared in its enactments, stands in opposition to that of-the people as declared in the Constitution, the court, in determining between the two, must be governed by the Constitution rather than by the act of the Legislature.

Again quoting the language of Judge Cooley:

"The will of the people as declared in the Constitution is the final law, and the will of the Legislature is law only when it is in harmony with, or at least is not opposed to, that controlling instrument (the Constitution), which governs the legislative body equally with the private citizen.” Constitutional Limitations, page 6.

Article I, Section 2, of the present Constitution of Ohio provides:

“All political power is inherent in the people; government is instituted for their equal protection and benefit, and they have the right to alter, reform or abolish the same whenever they may deem it necessary; and no special privileges or immunities shall ever be granted that may not be altered, revoked or repealed by the General Assembly. ’ ’

Article II, Section 1, provides:

“The legislative power of this state shall be vested in the General Assembly. It shall consist of a Senate and House of Representatives.”

Article III, Section 1, provides:

“The executive department shall consist of a Governor, Lieutenant-Governor, Secretary of State, Auditor of State, Treasurer of State, and an Attorney-General, who shall be elected,” etc.

Article IY, Section 1, provides:

The judicial power of the state is vested in a Supreme Court, circuit courts, courts of common pleas, courts of probate, justices of the peace, and such other courts, inferior to the Supreme Court, as the General Assembly may from time to time establish.”

Article II, Section 32, provides:

“The General Assembly shall grant no divorce, nor exercise any judicial power not herein expressly conferred.”

No judicial power is conferred by the Constitution upon the General Assembly which is material in determining the questions here involved.

These provisions of the Constitution divide the powers to be exercised into three separate and distinct classes or departments— the legislative, executive and judicial. The right of each class or department to do any specific act is determined by the question whether that act is in its nature legislative, executive or judicial. Every power exercised by the government must fall within one of these classes, and it can not be exercised by a department of the government to which it does not belong. By virtue of this arrangement, as stated by Judge Cooley, each department is made to constitute a restraint upon the actions of the others, to keep them within proper bounds, and to prevent hasty and improvident action.

In this country the legislative authority is subjected to the control arising .from the Constitution. From the Constitution, the legislative department, as well as every other department of the government, derives its power. When the legislative department attempts to exercise a power conferred by the Constitution upon one of the other departments, and, the matter of its right to do so comes regularly before a court, it is the duty of the court, in its exercise of the judicial power conferred by the Constitution, to determine the question as to where the power rightfully belongs, and if wrongfully exercised by the legislative department, to declare the act in controvention of the Constitution, that is. to declare it unconstitutional.

Is the power to authorize an individual to appear as an attorney and counselor at law in the courts of this state a judicial power? If it is, then the legislative enactment now under consideration, and by virtue of which respondent claims the right to practice, is a usurpation of judicial power by the legislative department of the state, and is unconstitutional. This question has been before the courts of last resort of many of the states, and we are not without authority in determining it. The question has arisen, both in relation to the admission and disbarment of attorneys, and from the reasoning, the two powers are so closely allied as to constitute but the exercise of the same general power.

“Their (attorneys) admission, or their exclusion, is not the exercise of a mere ministerial power. It is the exercise of a judicial power, and has been so held in numerous cases. It was' so held by the Court of Appeals of New York in the Matter of the Application of Cooper for Admission," said the court in Ex Parte Garland, 4 Wall. (U. S.), 333.

The case of Cooper, above referred to by the Supreme Court, is one strongly relied upon by respondent to sustain the position that the act in question is constitutional. In that case the court says:

“Attorneys and counselors are not only officers of the court, but officers whose duty relates almost exclusively to proceedings' of a judicial nature, and hence their appointment may with propriety be entrusted to the courts, and the latter, in performing this duty, may very justly be considered as engaged in the exercise of their appropriate judicial functions." In re Cooper, 22 New York, 81.

In In re Day, 181 Ill., 90, the court say:

“The function of determining whether one who seeks to. become an officer of the courts, and to conduct eases therein, is sufficiently acquainted with the rules established by the Legislature and the courts governing the rights of parties, and under which justice is administered, pertains to the courts themselves. * * # The order of admission is the judgment of the court that he possesses the requisite qualifications. If the Legislature by inadvertence, as in this case, assumes the exercise of a power belonging to the judicial department, it should only be necessary to call its attention to the restraint imposed by the Constitution."

While the provision of the Illinois Constitution relating to the distribution of power is not identical with the provisions of our state Constitution, the result arrived at is the same, and there is no reason why the language above quoted should not be applied to the case at bar.

The Supreme Court of Pennsylvania, in 1888, deciding the case of Joseph P. Splane, said:

“It was decided in Brackenrddge’s case, 1 S. & R., 187, as long ago as 1814, that the admission of an attorney by the court of common pleas is a judicial, not a ministerial act, and for this reason this court refused a mandamus in that case. The same reason would justify us in refusing it in this.”

And the court said further:

“If there is anything in the Constitution that is clearly beyond controversy, it is that the Legislature does not possess judicial powers. They are lodged exclusively in the judiciary as a co-ordinate department of the government.”

In the case of Hanson v. Grattan, 84 Kans., 843, the court say:

“The power to admit applicants to the practice of the law is judicial and not legislative.”

The court in In re Goodell, 39 Wis., 232, say:

“The Constitution makes no express provision for the bar. But it establishes courts amongst which it distributes all the jurisdiction of all the courts of Westminster Hall in equity and at common law. And it vests in the courts all the judicial power of the state. The constitutional establishment of such courts appears to carry with it the power to establish a bar to practice in them. An admission to the bar appears to be a judicial power. It may therefore become a veiy grave question for adjudication here, whether the Constitution does not entrust the rule of admissions to the bar, as well as the expulsion from it, exclusively to the discretion of the courts.”

The question above propounded by the Supreme Court of Wisconsin was answered by the same court in 1876, in the ease of Ole Mosness, a resident of Illinois, who made application to bfe admitted to the bar of Wisconsin. In that case the court say:

“Members of the bar are officers of the court, and in some sense officers of the state for which the court acts. If Chapter 50 (Laws of 1855) was intended to do more thin authorise the appearance here of members of the bar of other states as counsel in the trial and argument of causes, it was without the power of the Legislature.” In re Mosness, 39 Wis., 509.

The New York Court of Appeals in the case of Cooper, before referred to, use the following language:

“If the removal or suspension of an attorney be, as was held in these cases (Strother v. Missouri, 1 Mo. Reports, 605; In re Secombe, 15 Howard [U. S.], 15), a judicial act, it is difficult to see how the admission of an attorney is any the less so, especially when, as here, the court in the act of admission is required to pass not only upon the sufficiency of the evidence of certain facts, but upon the constitutionality and the validity of a statute, and thus to exercise the highest judicial function ever entrusted to a court.”

And also the following language;

“The only rational interpretation of which the act admits is that it was intended to make the college diploma competent evidence as to the legal attainments of the applicant, and nothing else.
“The Legislature has not taken from the court its jurisdiction over the question of admission, but has simply prescribed what shall be competent evidence in certain eases upon the question.
“They (attorneys) are officers of the court, admitted as such by its order upon evidence of their possessing sufficient legal learning and fair private character. The order of admission is the judgment of the court that the parties possess the requisite qualifications as attorneys and counselors, and are entitled to appear as such and conduct the cases therein.”

The court in the Cooper case was passing upon a statute admitting to practice on a diploma of Columbia College. While the court in the case found that the power to admit is subject to legislative control the finding was based on the peculiar history of admission to the bar in New York, and after a finding by the court that the power is a judicial power and that the statute was merely a rule of evidence. The ultimate finding js opposed to the great weight of authority.

The Supreme Court of Ohio, in respondent’s case, in determining this question, say:

“It is almost universally held that both the admission and the disbarment of attorneys are judicial acts, and that one is admitted to the bar and exercises his functions as an attorney, not as a matter of right but as a privilege, conditioned on his own good behavior, and the exercise of a just and sound judicial discretion by the court.” And cites in support thereof: In re Durant, 80 Connecticut, 140; Bradwell v. Illinois, 36 Wall. (U. S.), 130; In re Day, 181 Ill., 73; In re Charles A. Thatcher, 80 O. S., 654.

Basing our opinion upon the above authorities and a numher of other cases which have been examined, we are constrained to hold that the admission of attorneys is a judicial, and not a législative act, and that the power to authorize an individual to •appear as an attorney and counselor at law in the courts of this state, is a power that can not be exercised by the legislative department of the state, and that the act, by virtue of which the respondent claims the right to practice, is unconstitutional.

In arriving at this conclusion we have not failed to take into consideration the general act of the Legislature, pursuant to which citizens of the state are admitted to practice, and, after admission, they are, under certain circumstances, disbarred.

In the exercise of the police power, the Legislature probably possesses the power to prescribe qualifications for admission and grounds for disbarment. And it may prescribe the method of procedure therein. The Legislature has prescribed qualifications for admission, and has designated the tribunal which «WI] exercise the power to admit to practice, and the courts of the state, without questioning the right of the Legislature to so enact have for years operated under those provisions and it is not for this court, at this time, to question this method or procedure, or the force and effect of any judicial order made in accordance therewith. The constitutional right of the courts, however, to admit or disbar, is not surrendered by reason of the recognition by the courts of this procedure.

The order is that respondent be not permitted to practice before this court.

Chittenden, J.

The question presented is one of grave importance, rising, .as the respondent has well said, far above the personal right or privilege directly involved. We have, therefore, given it most thoughtful consideration in an endeavor to place our conclusions ;upon fundamental principles as well as upon the consideration of the cases cited in the argument. It should be distinctly understood that we are trying no question of the fitness or unfitness of Mr. Thatcher to practice law. We are required to determine one question only: Is the act of Legislature passed April 18th, 1911, authorizing and empowering Charles A. Thatcher to appear and act as attorney and counselor at law in all the courts of the state a valid law, or is it in conflict with the Constitution óf the state? If it is valid he is entitled to practice law at this bar. If it is not valid he is not entitled to so practice. •

The entire structure of our government rests upon the foundation of popular sovereignty. The people constitute the sovereign power and, by direct vote, they have established the Constitution of the state as the written expression of their will. It is the fundamental law to which all must conform, and which can only be changed by the people themselves. By the state Constitution the people have established the state government after the federal plan, that is, by dividing the government into three distinct branches — -the executive, legislative and judicial. Each of these branches is independent of the other and neither may encroach upon the functions and duties of the other. Upon the maintenance of this most excellent system of checks and balances must depend not only the efficiency, but the permanence of our free government. This has been clearly stated by Chief Justice Gibson of Pennsylvania as early as 1850. He said:

“The functions of the several parts of the- government are thoroughly separated, and distinctly assigned to the principal branches of it — the legislative, the executive, and the judiciary— which, within their respective departments are equal and coordinate. Each derives its authority, mediately, or immediately from the people; and each is responsible, mediately or immediately to the people for the exercise of it. When either shall have usurped the powers of one or both of its’fellows, then will have been effected a revolution, not in the form of government, but in its action. Then will there be a concentration of the powers of the government in a single branch of it, which, whatever' may be the form of the Constitution, will be a despotism— a government of unlimited, irresponsible and arbitrary rule. It is idle to say the authority of each branch is defined and limited in the Constitution, if there be not an independent power able and willing to enforce the limitations. Experience proves that it is thoughtlessly but habitually violated; and the sacrifice of individual right is too remotely connected with the objects and contests of the masses to attract their attention.” (15 Pa. State, 18.)

That the judiciary has not been free at all times from such encroachment may be freely conceded. The duty, however, devolves peculiarly upon the judiciary, as the interpreter of the law, to see that these constitutional limitations are preserved. Speaking upon this duty the Supreme Court of Georgia used the following language:

“The right here asserted, is a necessary attribute of every court in the country, as will appear from the fact, that if there happens to be an irreconcilable variance between the Constitution — which is the fundamental law — and a particular act proceeding from the legislative body, that which has the superior obligation and validity, ought, of course, to be preferred; in other words, the Constitution ought to be preferred to the statute — the intention of the people to the intention of their agents. Nor does this conclusion, as is shown in the work first above cited, by any means suppose a superiority of the judicial to the legislative. It only. supposes that the power of the people is superior to both, and that where the will of the Legislature, declared in statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter, rather than the former. They ought to regulate their decisions by the fundamental laws, rather than those which are not fundamental.” (8 Ga., 218.)

Judge Ranney, of the Supreme Court of Ohio, says:

“It is the right and duty of the judicial tribunals to determine, whether a legislative act drawn in question in a suit pending before them, is opposed to the Constitution of the United States, or of this state, and if so found, to treat it as a nullity."

The rule for construction is, stated by him as follows:

"In such cases the presumption is always in favor of the validity of the law; and it is only when manifest assumption of authority and a clear incompatibility between the Constitution and the law appear, that the judicial power will refuse to execute it.” (1 Ohio St., 77.)

The rule as laid down by Judge Cooley is as follows:

“Except where the Constitution has imposed limitations upon the legislative power, it must be considered as practically absolute, whether it operate according to natural justice or not, in a particular ease. The courts are not the guardians of the rights of the people of the state, except as these rights are secured by some constitutional provision which comes within judicial cognizance.” (Cooley, Constitutional Limitations, 236.)

With the duty resting upon the court as above shown, and observing the rules of construction as above stated, let us inquire as to what, if any constitutional limitations effect the act in question.

Article II, Section 1, provides:

“The legislative power of this state shall be vested in a General Assembly, which shall consist of a Senate and a House of Representatives."

Article IV, Section 1, provides:

"The judicial power of the state is vested in a Supreme Court, circuit courts, courts of common pleas, courts of probate, justices of the peace, and such other courts, inferior to the Supreme Court as the General Assembly may from time to time establish."

Article II, Section 32, provides:

“The General Assembly shall grant no divorce nor exercise any judicial power not herein expressly conferred.”

By this latter, section, it will be seen that the people have undertaken to especially guard this judicial power and permit its exercise only in and by its courts. And this is a salutary provision because legislative action is frequently upon ex parte hearing.

There is no definition in the Constitution of the term legislative, executive and judicial, but the distinction, in the main outline, is quite well defined.

That the Legislature may, in the exercise of the police power, enact laws prescribing certain necessary qualifications for admission, and for rules of procedure for both admissions to the bar, and disbarment is undoubted, and the law has been so announced by many courts.

It is urged that, if this be true, then the Legislature may, in the exercise of that same power, appoint any individual to the office of attorney at law. But does that conclusion follow?

There can be no dispute but that the Legislature has power to enact'laws providing for court procedure; but because it may determine grounds for the granting of a new trial, it does not follow that it can by legislation direct a new trial in any given ease. This has been determined in some sixteen states where the question has arisen.

The Legislature has exclusive power in Ohio, to define crimes and provide punishment, but this does not make the administration of the criminal law less judicial.

We hold that the Legislature has full power to prescribe qualifications without which no one shall be admitted to practice law in the courts'of this state.

We further held that the Legislature may require the courts to disbar any attorney who is found, upon judicial inquiry, to no longer possess these moral qualifications essential to the proper administration of justice, but that the determination of the right to admission under those qualifications and the neces.sity for disbarment in each case, is a judicial act, resting with the courts alone. I will not undertake to review the cases examined, as my associates have done that.

We have examined every case cited, and many others. We find no case holding to the contrary: Every decision upon this question, from the foundation of our government, so far as we have been able to learn, has held that the admission of attorneys to practice at the bar of the courts is a judicial-act.

The rule is concisely and accurately stated in Volume 3, American & English Encyclopedia of Law, page 287, as follows:

“It lies within the power of the Legislature to prescribe the qualifications requisite to admission to the bar and the courts will have no authority to admit any person not possessing, the necessary qualifications; but the admission of an applicant to practice is a judicial act, and the attorney when admitted is an officer and member of tbe - court. Tbe Legislature has no power, therefore, to provide that any person possessing certain qualifications must be admitted. It can not assume judicial powers, and in every case the courts are vested with discretion as to whether an applicant is entitled to admission.”

It has been held to be a judicial act by the Circuit Court of Hamilton County in the case of Wilson v. Whitacre, 4 C. C., 15.

We have endeavored to examine every case that has arisen in this country, in which this question was involved, and, with-' out a single exception they have held the act of admission to be the exercise of a judicial power. The very cases cited by the respondent so held.

There is no question as to the right of the Legislature of this state to pass special laws of the character prescribed by the Constitution, but they are not permitted, either by special or general act, to exercise judicial functions. In the several special acts cited by the respondent, as an exercise .of the claimed power to create attorneys at law, it is found, upon examination, that the Legislature has, in each case, recognized the right of the courts to pass upon their admission, and have not undertaken by the act, to create'any individual an attorney at law, except by the act now under examination.

In the act cited by the respondent for the relief of James A. Crawford, it was provided that he may be admitted to an examination for admission to the bar in accordance with the general law upon the subject, but without producing to the judges a certificate that he has regularly and attentively studied law during the period of two years previous to his application for admission.

In the act in 43 Ohio Laws, 20, the courts were permitted to examine Robert W. Russell for admission to practice in this state, notwithstanding the fact that he was, at the time, an alien In 50 O. L., 32, a like act was passed for the relief of Otto Drussell, and by an act in 53 O. L., 534, permission was given the district court to receive the application of Otho H. Velzler and Alpheus Hurd, they being, at the time, aliens, and permitting the courts to admit them to practice, and providing further that-if said persons did not become naturalized within a certain length of time, that their licenses should be revoked.

Thus it will be seen that, in every instance in which the Legislature has enacted laws with reference to the admission of attorneys at law,> they have recognized the judicial power involved, and have never undertaken to exercise that power except in the case of the respondent.

So far as we have been able to assertain this is the first instance since the foundation of the federal government where a Legislature has undertaken to exercise this power. The respondent urged upon us a consideration of the brief of Theodore Dwight, filed in the ease reported in 22 N. Y., In re Cooper. We have made a careful examination of this brief. The first contention made by Mr. Dwight, and which he argués earnestly, is that the act of admission is a judicial act. We fail to find anything in the brief of Mr. Dwight which argues for the right or power of the Legislature to create an attorney at law by legislative enactment.

Whatever may be the fact in actual practice, the administration of justice requires' the highest ideals, and the strictest integrity upon the part of both the bench and the bar. If the courts are stripped of power to regulate and control the conduct of-the attorneys practicing at its bar, with reference to their practice, then indeed will this profession, which affords so many opportunities for improper conduct, be left open to ruthless and unprincipled persons without any restraint whatever.

The Legislature has made it the imperative duty of the courts, when complaint is made of improper conduct upon the part of a practicing attorney, to make judicial inquiry into the same, and to punish any such attorney at law found guilty of such offense. When, in obedience to such law, the court has made inquiry into the charges, and found the attorney guilty, and has imposed the punishment, it is not within the power of the Legislature, under the guise of a relief act, to set aside such finding by reinstating the attorney to practice.

The Supreme Court of this state long ago held, in the case of John A. King, 54 O. S., 415, that upon the disbarment of an attorney at law, the court rendering such decree retained a continuing jurisdiction over him for the purpose of entertaining any application for reinstatement. In other words, the order of disbarment operates as a continuing injunction restraining the person from practicing as an attorney at law until such order is vacated. Any act of the Legislature, therefore, which undertakes to reinstate the attorney operates expressly as an order vacating a previous order of the Supreme Court. Thus, in effect, does the Legislature of the state establish itself as the ultimate court of appeal.

The exercise of this power might not be so important in an individual case, but if it be contrary to the Constitution, it should not then be permitted as a precedent upon which further encroachments might be built. We quote from the Federalist, No. 78:

“The judiciary is, beyond comparison, the weakest of the three departments of power — that it can never attack, with success, either of the other two, and all possible care is requisite to enable it to defend itself against their attacks."

We are therefore convinced, from a careful study of the adjudicated cases, and upon consideration of the fundamental principles underlying our system of government, that this ant is clearly in conflict with the Constitution of the state, and is therefore void and of no effect.  