39 Wis. 232 (Wis. 1875), In re Goodell

Citation:39 Wis. 232
Opinion Judge:EDWARD G. RYAN, C. J.
Party Name:In the Matter of the Motion to admit Miss LAVINIA GOODELL to the Bar of this Court
Court:Supreme Court of Wisconsin
 
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Page 232

39 Wis. 232 (Wis. 1875)

In the Matter of the Motion to admit Miss LAVINIA GOODELL to the Bar of this Court

Supreme Court of Wisconsin

August, 1875

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Motion denied.

On the 14th of December, 1875, I. C. Sloan, Esq., moved the court for the admission to the bar of this court of Miss R. Lavinia Goodell, and read to the court a certificate of the clerk of the circuit court for Rock county in this state, which stated that at a term of said court begun and held on the 17th of June, 1874, Miss Goodell was examined in open court, and that, it appearing that she was a resident of this state, more than twenty-one years of age, of good moral character, and possessed of sufficient legal knowledge and ability, she was duly admitted by said court as an attorney and counselor at law. Mr. Sloan argued substantially as follows: [*]

Tay. Stats., 1343-4, §§ 31-33 (which are the same as secs. 1-3, ch. 189, Laws of 1861), are in these words:

"§ 31. No person shall hereafter be admitted or licensed to practice as an attorney of any court of record in this state, except in the manner hereinafter provided.

"§ 32. To entitle any such person to practice as such attorney in the circuit courts of this state, he shall be first licensed by order of one of the judges thereof, made in open court; and no such order shall be made until the person applying for such license shall have first been examined in open court, by the judge thereof, or examiners by him appointed, as to his learning in the law and ability to practice as such attorney, nor until such judge shall be satisfied that such person possesses sufficient legal knowledge and ability to entitle him to practice as such attorney, nor unless such person be a resident of this state, more than twenty-one years of age, and of good moral character. His residence and age must be made to appear by his affidavit.

"§ 33. Any person licensed by order of the court, as provided by section two of this act [§ 32], shall be entitled to practice as attorney of any court of record of this state except the supreme court; and to entitle any person to practice as attorney in the supreme court, he shall first be licensed by order of such court."

There is nothing in these provisions which can be construed to debar a woman from a license under them, unless it be the use of the masculine pronoun. But, by statute relating to the rules of interpretation, "every word importing the masculine gender only may extend and be applied to females as well as to males." Tay. Stats. p. 181; R. S., ch. 5, sec. 1, pl. 2. This rule of interpretation is followed in the construction of all the statutes; and there appears no reason why it should not be applied to the particular statute under consideration, as well as to the statutes generally. It has been so applied to the statute providing for notaries public, and defining their duties, under which Miss Goodell has been appointed and now holds the office of notary.

Nothing appears, then, in the laws of the state tending to disqualify an applicant for admission to the bar, in consequence of her sex; and there is no rule of this court modifying the statutes in that respect.

The supreme court of Illinois, in their opinion delivered in September, 1869, upon the application of Mrs. Bradwell, held that the admission of women to the practice of law was without precedent, unknown to the common law, and not within the thought and intention of the legislature at the time the statute providing for the admission of attorneys to practice was enacted. The court say: "When our act was passed, that school of reform which claims for woman participation in the making and administering of the laws had not arisen, or, if here and there a writer had advanced such theories, they were regarded rather as abstract speculations than as an actual basis for action. * * * In view of these facts we are certainly warranted in saying that when the legislature gave to this court the power of granting licenses to practice law, it was with not the slightest expectation that this privilege would be extended equally to men and women. Neither has there been any legislation since that period which would justify us in presuming a change in the legislative intent." Whatever may be said of the applicability of this argument to that case, it is wholly inapplicable to this. The statute of Illinois providing for the admission of attorneys was enacted in 1845, or earlier, being found in the revised statutes of that state for 1845. The statute of Wisconsin here cited was enacted in 1861, when progressive ideas concerning the enlargement of the sphere of woman's industries were more widely known and adopted, and so may reasonably be presumed to have been within the minds of the legislators at the time of its enactment. But further legislation in this state clearly indicates that, whatever the intention of the legislators in 1861 might have been--if other than that expressed by plain and unequivocal language,--their subsequent intention has been to include women in the provisions made for the admission of attorneys to practice in all the courts of record in this state. By ch. 17 of 1867, women are admitted to every department, except the military, of the state university, "under such regulations and restrictions as the board of regents may deem proper." Tay. Stats., 521. This statute admits women to the law department of the university, with the privilege of pursuing the course of study marked out for its students, and of graduating from that department. Whether the clause, "under such regulations and restrictions as the board of regents may deem proper," gives said board power to exclude women from the full legal course and the privilege of graduating, or not, it certainly gives them power to allow to women students such full course of study and graduation, if they see fit to do so. Now, by the laws of 1870, ch. 79, sec. 1, "all graduates from the law department [of the state university] shall be entitled to admission to the bar of all the courts of this state, upon presenting to the judge or judges thereof a certificate of such graduation." Tay. Stats., 1344, § 36. Thus, by express legislative enactment, women may be admitted to the bar of all the courts of this state by graduating from the law department of the state university. Can it have been the intention of the legislature to give the board of regents of the university the power to admit women to the practice of law in this court, and at the same time to withhold that very power from the court itself? Again, the statute provides for the admission of attorneys from the state of Illinois and other states, under certain restrictions which do not apply to the question of sex. See Tay. Stats., 1344-5, §§ 39, 40. Accordingly women may be admitted to this bar from Illinois and other states in which they are now or may hereafter become practicing attorneys. If the courts of other states have power to procure the admittance of women to the bar of this state, are its own courts deprived of such power? Again, the constitution of this state, art. VII, sec. 20, provides for the conduct of suits by a party, or his attorney or agent. Under this clause of the constitution no court would have the right or power to refuse a woman, as a party or agent, the right to conduct a suit in court on her own behalf or that of her principal.

Upon application made in 1869 to the supreme court of Illinois, Mrs. Bradwell was refused admittance, October 6, 1869, on the sole ground that she was a married woman, and as such was incapable of making contracts. Ch. Legal News of Feb. 5, 1870. Mrs. Bradwell filed an argument, the most pertinent point in which was that, by statutes enacted by the legislature of Illinois in 1861 and 1869, giving to a married woman the right to hold property in her own name, to control her own earnings, and to sue and be sued, the disabilities asserted by the court to exist, had been removed, and could no longer form a barrier to her admission to legal practice. The court, in a subsequent opinion, while still denying Mrs. Bradwell's application, refused it no longer on the ground of her disabilties as a married woman, but solely on the ground of her being a woman. While virtually admitting that nothing in the language of the statute precluded the admission of women, the court laid down this role: "In all other respects [aside from the limitations of the statute], it is left to our discretion to establish the rules by which admission to this office shall be determined. But this discretion is not an arbitrary one, but must be held to at least two limitations. One is, that the court shall establish such terms of admission as will promote the proper administration of justice; the second, that it should not admit any person or class of persons who are not intended by the legislature to be admitted, even though their exclusion is not expressly required by the statute." No argument was made upon the first limitation enumerated, and the refusal to admit the applicant was based solely upon the second.

None of the arguments urged in opposition to the claim of Mrs. Bradwell for admission apply to this case. The applicant here is not a married woman, and is under no disabilities. But even if she were married, the recent legislation of Wisconsin, giving to married women the right to control their own property and earnings and to sue and be sued, removes their disabilities to contract, as in the case of similar legislation in Illinois, and so removes the barrier supposed to have existed, to her admission to legal practice. See Tay. Stats., 1195-6, and decisions there cited; Laws of 1850,...

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