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In re Applicants for License

Supreme Court of North Carolina
Nov 1, 1906
143 N.C. 1 (N.C. 1906)


(Filed 27 November, 1906.)

1. Under Revisal, ch. 5, an applicant for license to practise law who complies with the formal prerequisites prescribed by sec. 208 is entitled to be examined, and if, on his examination he satisfies the Court of his competent knowledge of the law, he is entitled to receive his license, and an investigation into his general moral character is no longer required or permitted.

2. Revisal, ch. 5, establishing the qualifications for applicants to practise law, is not unconstitutional as an unwarranted exercise of judicial power prohibited by sec. 8 of the Declaration of Rights, nor as an unlawful attempt to deprive the Court of its inherent power to direct and control the conduct of attorneys who are its officers.

3. The Legislature has the right to establish the qualifications to be required of one to become a practising member of the bar by virtue of the police power which is vested in that body.

BROWN and WALKER, JJ., dissenting.

At the beginning of the present term, when the Court was about to enter on the examination of applicants for license to practise law, we found on file, signed by members of our profession, of high standing and deserved repute, protests against the admission of three of the applicants on the alleged ground that they did not have good moral characters.

As the applicants were here, ready, we determined to proceed with the examination; and the question being of the first importance, we took the same under advisement; and two of these applicants having passed excellent examinations, the question of the protest is fairly presented.

After giving the matter our best consideration, the Court is of opinion that under the law, as it now stands, Revisal 1905, ch. 5, an applicant for license who, on his examination, shall satisfy the Court of his competent knowledge of the law, is entitled to receive his license, and that an investigation into his general moral character is no longer required or permitted. Prior to the enactment of this Revisal the law was otherwise.

Under the Code of 1883, the Revised Code, and the Revised Statutes, it was provided:

"That applicants for license shall undergo an examination before two or more Justices of the Supreme Court, and on receiving certificates from such Justices of their competent knowledge of the law and upright character, shall be admitted to practise in the courts."

By clear inference from the language of this statute, power is given the Court or Judges who acted in the matter, and perhaps the duty imposed, of satisfying themselves that the applicant's character was good. Under a rule or custom, the certificates of two practising attorneys of good standing as to the character of the applicants were accepted as evidence sufficient; but this was only prima facie, and on protest filed, as in this case, and under the former law, we think the Court would clearly have had the power to examine into the question. But under the Revisal, the sections controlling the question are as follows:

Section 208: "Before being allowed to stand an examination each applicant must comply with the following conditions:

"1. He must be twenty-one years of age, or will arrive at that age before the time for the next examination.

"2. He must file with the Clerk of the Court a certificate of good moral character signed by two attorneys who practise in that Court. An applicant from another State may have such certificate signed by any State officer of the State from which he comes.

"3. He must deposit with the Clerk twenty-one dollars and fifty cents."

And sec. 207: "No person shall practise law without first obtaining license so to do from the Supreme Court. Applicants for license shall be examined only on the first Monday of each term of the Supreme Court. All examinations shall be in writing, and based upon such course of study and conducted under such rules as the Court may prescribe. All applicants who shall satisfy the Court of their competent knowledge of the law shall receive license to practise in all the courts of this State."

This statute presents no question, sometimes mooted by the courts, as to whether the certificates of the attorneys to the character of the applicants is prima facie or conclusive. This certificate, to be signed by two practising members of the Court, is only a formal matter, fixing the status of an applicant. When this is done, and the other preliminaries complied with, sec. 207 requires that the applicant shall be examined, and if he satisfies the Court of his competent knowledge of the law he shall be licensed.

The change from the former law is too pronounced to pass unnoticed, and the meaning too plain for construction.

Says Black, in Interpretation of Laws, sec. 26: "The meaning of a statute must first be sought in the language of the statute itself."

And further: "If the language is plain and free from ambiguity and expresses a simple, definite, and sensible meaning, that meaning is conclusively presumed to be the meaning which the Legislature intended to convey."

And in Lewis's Southerland Statutory Construction (2 Ed.), sec. 267, it is said: "When the intention of the Legislature is so apparent from the face of the statute that there can be no question as to its meaning, there is no room for construction."

It was not seriously contended in the able argument made by the protestants, in compliance with the request of the Court, that this change has not been wrought by the Revisal of 1905; but the validity of the statute is assailed on the ground that the same is unconstitutional, because —

1. It violates sec. 8 in our Declaration of Rights, to the effect that "the legislative, executive, and supreme judicial powers of the government should be kept separate and distinct."

2. Sec. 12 of Art. IV, which ordains that "the General Assembly shall have no power to deprive the judicial department of any power or jurisdiction which rightfully pertains to it," etc. The argument being ( a) that the admission of attorneys to practise is a judicial act, and the statute, requiring, as it does, that an applicant be admitted when found to have competent knowledge of the law, is an unwarranted exercise of judicial power prohibited by sec. 8 of the Declaration of Rights; ( b) that attorneys, when admitted, are officers of the Court, whose appointment and conduct are under the control of the Court as one of its inherent powers, and the act is an unlawful attempt to deprive the judicial department of a power which of right belongs to it.

We do not think, however, that either of these positions can be sustained.

True, it is generally held, uniformly, so far as we have examined, that the admission of an applicant to the practice of the law is a judicial act.

In several decisions on this question a mandamus to control the action of an inferior court was denied by an appellant tribunal because the admission to the bar was an act involving judicial discretion, and that such discretion, as a rule, could not be directed by this writ.

We do not deduce from this principle and these decisions, as some authorities have done, that because admission to the bar is in some sense a judicial act, "that a Legislature has no power, therefore, to provide that any person, possessing certain qualifications, must be admitted, as this would be to assume judicial power."

It is well established and sustained by the weight of authority that the Legislature has the right to establish the qualifications to be required of one to become a practising member of the bar.

As said in Ex parte Garland, 71 U.S. at p. 379: "The Legislature may undoubtedly prescribe the qualifications for the office of an attorney, to which he must conform; as it may, when it has exclusive jurisdiction, prescribe qualifications for the pursuit of any of the ordinary avocations of life."

The right to establish such qualifications rests in the police power — a power by virtue of which a State is authorized to enact laws to preserve the public safety, maintain the public peace and order, and preserve and promote the public health and public morals.

Under our system, and as a part of the governmental policy, this power is, in the first instance, rightfully vested in the Legislature. S. v. Moore, 104 N.C. 714.

And, subject to constitutional restrictions and limitations, the Legislature has the right to prescribe the qualifications and establish the rules and regulations under which its citizens may pursue this or that calling, professional or otherwise. As stated in Cyc., vol. 4, p. 900:

"As attorneys are officers of the Court, their admission is the exercise of a judicial power resting with the courts. The Legislature, however, may prescribe regulations and qualifications for the office, and have uniformly done so."

From the existence of these two admitted and well established principles we draw the conclusion that when a Legislature, by positive enactment, has prescribed the qualifications required to enable one to enter the legal profession, and a citizen presents himself for examination and is shown to possess these qualifications, the courts must admit him to the practice of the law. We exercise our judicial functions in determining whether the applicant possesses the required qualifications; and here our power in the premises ends. To hold, as we are requested to do here, that when a Legislature has acted and established the qualifications which shall be required, the Court can go on and superadd others, would, in effect, destroy the right admitted to be in the Legislature and uphold the Court in the exercise of legislative power.

If a Legislature, having prescribed certain qualifications, should undertake to direct whether an applicant did or did not possess them, this might be an unconstitutional exercise of judicial power. But not so here. The Legislature has established a general standard to which all applicants must conform, and has referred it to the Court to decide whether, in any particular case, the requirement has been met.

The principal test, then, by which the two powers are distinguished is complied with. The Legislature, in the valid exercise of the police power, lays down a general rule. The judiciary applies the principle to the particular case.

Nor do we think that the statute in question withdraws from the courts any power which rightfully belongs to them. So far as this Court is concerned, being now a court created by the Constitution, it has the constitutional power given to it and protected by that instrument; and, as set forth in Art. IV, sec. 8: "The Supreme Court shall have jurisdiction to review, upon appeal, any decision of the courts below, upon any matter of law or legal inference. And the jurisdiction of said Court over `issues of fact' and `questions of fact' shall be the same exercised by it before the adoption of the Constitution of one thousand eight hundred and sixty-eight; and the Court shall have the power to issue any remedial writs necessary to give it a general supervision and control over the proceedings of the inferior courts." Convention 1875.

The power here referred to is generally understood to mean the power to hear and determine controversies between adverse litigants. Or, as said in People v. Chase, 165 Ill., p. 527: "Judicial power is that power which adjudicates and protects the rights and interests of individual citizens, and to that end construes and applies the laws." Certainly, the legislation in question interferes in no way with the powers granted to this Court by the Constitution which created it.

It is urged, however, that the statute impairs or destroys the inherent rights of the courts to admit and control the conduct of the attorneys who are its officers.

Passing from the Supreme Court and the power and jurisdiction given and guaranteed it by the Constitution, the power of the Legislature over the matter in question would seem to be plenary; not only by virtue of the general powers of legislation granted to it by Art. II, sec. 1, of the Constitution, but under the very section to which the protestants appeal. In Art. IV, sec. 12, it is said: "That the General Assembly shall have no power to deprive the judiciary of any power which actually belongs to it." The section further prescribes that the General Assembly shall allot and distribute that portion of the power and jurisdiction which does not pertain to the Supreme Court among other courts prescribed in the Constitution, or which may be established by law, in such manner as it may deem best, etc.

Under this section the Legislature would seem to have the right, not only to prescribe the qualifications, but to determine the courts or agency which should pass upon them.

In performing the duty of examining applicants and issuing licenses, we are not acting as a Supreme Court; certainly not in the exercise of our constitutional powers. We are simply discharging a duty imposed upon us by the Legislature, which we would, no doubt, have the right to decline. We have heretofore done this work in obedience to this reasonable requirement on the part of the Legislature; partly following a custom which has been sanctioned by time and approved by trial; partly from our desire at all times to do what we can to uphold the traditions and promote the interests of the profession to which we belong.

If the Legislature sees proper to impose the duty on another court, or to create one for the purpose, the admission of attorneys being a judicial act under sec. 8 of the article, the Supreme Court would have, no doubt, the right to supervise the procedure. But this would be in order only to see that the form and requirements of the laws addressed to this question are complied with and in accordance with the principles set forth in this opinion. It is urged, however, that the statute impairs or destroys the inherent right of the Court to direct and control the conduct of attorneys who are its officers.

There are decisions which so express themselves on this question; and if by inherent they intend to say — and this is all that most of them do say — that in the absence of legislation on the subject, the courts have the power to regulate and deal with the matters mentioned, this may be accepted. But if by inherent is meant that the power, to the extent claimed here, is one inherent because essential to the existence of the Court and the proper exercise of its functions, we do not think the position can be maintained.

Why and how is it essential? If any attorney who has been admitted as a practising member of a court is presently so conducting himself that the Court finds it impossible to properly administer justice in some case or cases being then considered, the question might be presented. But how can the right to pass on an applicant's previous conduct or his character be considered as a power essential to a court's existence, when he has never become an attorney or been given an opportunity to have his demeanor observed or considered?

While the precise question has not been presented in this State, we are not without authority here which will aid us to a correct conclusion in this matter.

In Ex parte Schenck, 65 N.C. p. 353, the Court, in construing our statutes on contempt, held, "That the Act of April 4, 1871, declaring that no attorney who has been duly licensed to practise law shall be disbarred or deprived of his license and right to practise except upon conviction for a criminal offense, or after confession in open court, is constitutional." And further: "The aforesaid act does not take away any of the inherent rights which are absolutely essential in the administration of justice."

And in Kane v. Haywood, 66 N.C. p. 1, under graver circumstances, the same act was upheld.

If the power to disbar an attorney who is a sworn officer of the Court can be taken away by the Legislature only after conviction or confession of crime, it would surely be competent for the Legislature to provide for the admission of one of its citizens who has established the requisite qualifications, and against whom there are charges which rest only on report.

The views we maintain on this question are supported, we think, by the best considered authorities. Ex parte Thompson, 10 N.C. 355; In re Cooper, 22 N.Y. 67; In re Robinson, 131 Mass. 376; Ex parte Yale, 24 Cal. 241; S. v. Foreman, 3 Mo., 602; Freunde on Police Power, secs. 646 to 650.

In Ex parte Thompson the power is treated as legislative. In Ex parte Yale it is held, "That the manner, terms and conditions of an attorney's admission to practise, and of his continuing in practice, as well as his powers, duties and privileges, are proper subjects of legislative control to the same extent, and subject to the same limitations as any other profession or business that is directed or regulated by statute."

In In re Cooper the Legislature had directed that applicants holding diplomas from Columbia College should be admitted, and the act was upheld and the admission required.

In Ex parte Robinson a woman had offered for admission to the bar in Massachusetts, and was rejected because the statute had not so provided. The question is treated throughout as a matter exclusively under legislative control, and Mr. Chief Justice Gray closes the opinion in this way: "It is hardly necessary to add that our duty is limited to declare the law as it is; and whether any change in that law would be wise or expedient is a question for the Legislature, and not for the judicial department of the government." Many other authorities could be cited to the same effect.

The position here taken is not only sustained by the weight of authority, but will be found historically correct.

In an interesting and learned argument delivered before the Court of Appeals of New York by Dr. Dwight in the Matter of the Graduate of Columbia College, supra, and from the opinion of the Court in that case, it will be found that barristers and counsellors at law in England were never appointed by the Court at Westminster, but were called to the bar by the Inns of Court, which were voluntary, unincorporated associations. And while the Judges seem to have had some kind of visitorial power in regard to these institutions, they declined, in their official capacity as Judges to exercise any control over the action of the benchers in the selection or admission of these officers. While attorneys, in fact, at an early period were authorized, by different methods, to appear for individual litigants, the power of the Court to appoint attorneys as a class of public officers was conferred originally, and has from time to time been regulated and controlled in England by statute.

True, this historic account of English methods can not be allowed full significance here, because in that country the power of Parliament is without constitutional restraint or, rather, it is a part of the Constitution of England that their Parliament has supreme and transcendent power, and can, when it sees proper, exercise judicial as well as legislative power; but this statement of Dr. Dwight shows that in New York, also, the power to establish qualifications and regulate the admission of attorneys has always been a matter of legislative control.

In North Carolina, too, the matter has always so been dealt with: and here, certainly, this fact should be given great weight.

In 1754, by statute, the North Carolina Legislature conferred the power of admitting attorneys on the Judges of the Superior Court. In 1818 this was changed, and the power was given to two or more Judges of the Supreme Court, and so remained until 1869, when the Legislature passed an act that any citizen be allowed to practise law who proved a good moral character and paid a license tax of $20; and that it was the duty of the Judges of the Superior Court to admit to the practice of law in the courts of the State any applicant who complied with these provisions.

During the existence of this statute it was the custom for an applicant to prove his character and pay the tax to the Clerk of the Superior Court; and the Judges of the Superior Court admitted such applicant on the certificate of the Clerk that the provisions of the act had been complied with. While this statute was in force, the Judges of the Supreme Court declined to examine applicants, and many of our capable and prominent attorneys were admitted to the profession in this manner, this being the only way that was then open to them.

The act was repealed in 1871, and the former law was restored, and continued in force until the Revisal of 1905, being the act we are now considering. And what valid objection can be made to this legislation? And here the writer speaks only for himself. (12)

It is said by an American author of blessed memory that it does not matter so much where a man is as the direction in which he is moving.

Why should a citizen, even if he has committed some offense in the past, be deprived of the privileges of turning his face the other way and making an honorable effort to gain his living by the practice of the law? Or why should one who seeks to enter this honorable profession be turned from his purpose and this privilege denied him by reason of charges which rest only in rumor, and without having the opportunity to face his accusers and submit the question to trial by a jury of his countrymen? — that goodly way which has long been the approved and accepted method of deciding disputed questions of fact among freemen, and will continue to be while the rights and liberties of men are worth preserving.

Nor do I apprehend the calamities suggested in some of the opinions which hold, or seem to hold, the contrary view.

The history of our great profession is writ large in the life and up-building of the republic. In every trial and stress of arduous circumstances they have been foremost in maintaining human rights and upholding the cause of human freedom; and nowhere has it shone with more luster than in the story of this Commonwealth; and I am glad to have the opportunity to say that, in my judgment, it has never been composed of more worthy members than it is today. Earnest-minded, upright, patriotic, and capable, they need no such prop as this to hold them to their highest standards and best traditions — the exercise, for their protection, by the Court, of a power which its most ardent advocates must admit to be doubtful, and which we hold to be forbidden and unlawful.

To urge that the public may also need protection is to surrender the position, for here we enter on the domain of the police power, which is undoubtedly with the Legislature.

There are decisions which seem to conflict, and some which do (13) conflict, with our present decision. In some of them, however, the question was not presented; and all of them, as said by Mr. Freunde in his work on the Police Power, can be upheld, where they can be upheld at all, on grounds other than the doctrine for which they are now cited. Thus, in Ex parte Secombe, 60 U.S. at p. 9, the Court denied an application for a mandamus to a lower court, holding that the admission of one to practise law in such court was a question which rested in the legal discretion of the Court.

The act of the Legislature in this case was held not to have respected in any way the common-law power of the courts on the subject, and the question we are here discussing was in no way presented.

In In re Attorney-General, 21 N.J. Law, at p. 345, the Court, while declaring that the right to pass on the admission of an applicant was one of the inherent powers of the Court, were then considering a rule of their own very similar in language to our former law, and there being no statute on the subject, the question we are now discussing did not arise.

In Splanes' case, 123 Pa., at p. 528, the Court held that the admission to practise law being a judicial act, a mandamus to a lower court would not be allowed. The Judge who delivered the opinion, after resting the decision on this unquestioned principle, goes on to declare that the statute on the subject was an encroachment on the judicial power, paying a fine and deserved tribute to the character of the bar, in which we most heartily concur. And in Goodell's case, 39 Wis. 232, the headnote states the principle contended for by protestants with a quaere, and the body of the opinion requires that it should be so stated.

The only decision which squarely declares that a statute on this subject is unconstitutional, describing it as an unlawful attempt to deprive the Court of one of its essential and inherent powers, is the case (14) of In re Day, 181 Ill. 72. This opinion (and it is an able one) can well be upheld on other grounds, and its force is much weakened by the dissent of two of the Judges, who show that in Illinois also, as a matter of history, this question has always been one of legislative regulation and control. The dissenting Judge makes another pertinent suggestion, that if this is one of the inherent and essential powers of the courts, it is just as inherent in one court as another; and so it might come about that the Judges of the Supreme Court and each of the Judges of the Superior Courts might require a widely different set of qualifications, which would establish different rules in every section of the State.

As my Lord Coke would say: "The argument ab inconvenienti availeth much, reader."

As said in this able opinion of the Illinois Supreme Court: "The right to practise law is a privilege, and any law conferring this privilege should be general in its operations." There should be no differences in sections and no unreasonable discrimination in classes or individuals, and the qualifications should be established and proclaimed, so that every citizen may know what is required of him; and this can only be successfully and properly accomplished by means of a public statute.

In what has been said the Court does not express any opinion upon the facts offered in support or denial of this protest, nor must it be for one moment inferred that we speak in disapproval of the action of the protestants. Under the former law their protest would have been timely. Like the Court, they were, perhaps, inadvertent to the pronounced change so recently made, and in any event they did right to take action in the premises; for if the law has been changed it should be declared. We know, too, that they acted from entirely disinterested motives and were prompted solely by a desire to do what was best for the good of the Commonwealth and of their profession.

We hold, however, as heretofore stated, that as the law now (15) stands one who complies with the formal prerequisites is entitled to become an applicant and to be examined and if, on his examination, he shows himself to have competent knowledge of the law, it is the duty of the Court to license him; and an investigation into the general moral character of the applicant is no longer required.

It is ordered, therefore, that the applicants be licensed.

Summaries of

In re Applicants for License

Supreme Court of North Carolina
Nov 1, 1906
143 N.C. 1 (N.C. 1906)
Case details for

In re Applicants for License

Case Details


Court:Supreme Court of North Carolina

Date published: Nov 1, 1906


143 N.C. 1 (N.C. 1906)
55 S.E. 635

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