Application of Kaufman

Citation69 Idaho 297,206 P.2d 528
Decision Date16 May 1949
Docket Number7528
PartiesApplication of KAUFMAN et al
CourtUnited States State Supreme Court of Idaho

Original proceeding's in the matter of the applications of Samuel Kaufman, Jr., John W. Gunn, and Sumner Delana, for admission to practice law without compliance with the rules of the Supreme Court of the State of Idaho.

Applications denied.

Eugene H. Anderson, Boise, for applicants.

It is well settled that unless the legislature, a distinct and independent but coordinate branch of the state government, is prohibited by the constitution, it has plenary power. Taylor v. State of Idaho, 1941, 62 Idaho 212, 109 P.2d 879; State ex rel. Macey v. Johnson, 50 Idaho 363, 296 P. 588; State v. Nelson, 1923, 36 Idaho 713, 213 P. 358; State ex rel. Davis v. Banks, 1921 33 Idaho 765, 198 P. 472.

The legal profession has long been held a proper subject of legislative regulation and control. In re Platz, 1940, 60 Nev. 296, 108 P.2d 858; Ex parte Ross, 1943, 196 Ga 499, 26 S.E.2d 880; Institute of the Metropolis Inc., v University of State of New York, 1936, 249 A.D. 33, 291 N.Y.S. 893.

In exercise of its police power, and in the interest and for the protection of the general public, the legislature may with entire validity reasonably regulate admissions to the bar. Clark v. Austin, 1937, 340 Mo. 467, 101 S.W.2d 977; State ex rel. Johnson v. Childe, 139 Neb. 91, 295 N.W. 381.

Grievance Committee of State Bar of Texas, Twenty-First Congressional District v. Dean, 1945, Tex.Civ.App., 190 S.W.2d 126; Detroit Bar Ass'n v. Union Guardian Trust Co., 1937, 282 Mich. 707, 281 N.W. 432; Opinion of Justices, 1935, 289 Mass. 607, 194 N.E. 313; In re Bonam 1931, 255 Mich. 59, 237 N.W. 45.

Robert E. Brown, Kellogg, J. L. Eberle, Boise, V. K. Jeppesen, Nampa, for Board of Commissioners of Idaho State Bar.

The admission or exclusion of attorneys to practice is not the exercise of the mere ministerial power, but is the exercise of judicial power. In re Edwards, 45 Idaho 676, 266 P. 665.

Although the Legislature, under its police power, and in order that public interests may be protected, may impose minimum standards, such standards do not constitute the ultimate qualifications beyond which the court cannot go in fixing additional qualifications deemed necessary by the Court for the proper administration of judicial functions. State ex rel. Ralston v. Turner, 141 Neb. 556, 4 N.W.2d 302, 144 A.L.R. 138. Numerous cases cited in annotation in 144 A.L.R. 150.

An attorney is not an officer of the state, in a constitutional or statutory sense of the term, but he is an officer of the court, and such privilege is granted by the court in the exercise of judicial power. In re Integration of Nebraska State Bar Association, 133 Neb. 283, 275 N.W. 265, 114 A.L.R. 151. See numerous cases cited in annotation to 114 A.L.R. 161.

The judicial department of the government has inherent jurisdiction over the admission and exclusion of attorneys as its officers, and any attempt of legislative control would be an usurpation and invasion of the inherent power of the judiciary. Integration of Bar Case, 244 Wis. 8; 11 N.W.2d 604. See numerous cases cited in annotation to 151 A.L.R. 617.

John A. Carver, Jr., Boise, Amicus Curiae.

The courts, when reviewing acts of legislatures which are asserted to encroach upon judicial power, should look to substance, and determine whether the necessary effect is to seriously interfere with the exercise of the judicial function. Penn Anthracite Mining Co. v. Anthracite Miners of Pennsylvania, 1935, 318 Pa. 401, 178 A. 291; Clark v. Austin, 1937, 340 Mo. 467, 101 S.W.2d 977; Brydonjack v. State Bar of California, 1929, 208 Cal. 439, 281 P. 1018, 66 A.L.R. 1507.

The exercise of the power to admit attorneys to practice law is generally held to be a judicial function. 1 Thornton, Attorneys at Law, sec. 29.

There is a distinction between the existence of a power and the manner of its exercise, and the latter may be subject to legislative control where the former is not. Penn Anthracite Mining Co. v. Anthracite Miners of Pennsylvania, 1935, 318 Pa. 401, 178 A. 291.

Givens, Justice. Holden, C. J., Porter and Taylor, JJ., and Koelsch, District Judge, concur.


Givens, Justice.

Applicants respectively filed with the Clerk documents indicating their qualifications and compliance with the requirements of Senate Bill No. 32, Chapter 73, 1949 Session Laws, p. 126, [1] as to age, residence, citizenship, moral character and learning and ability, and thereon applied for summary admission to the Bar of this Court, as follows:

"February 21st, 1949.

* * * *

"With the submission of the above documents I hereby request that I be sworn in as an attorney by the Clerk of the Supreme Court of the State of Idaho and be admitted to the practice of law in this state."

"s/ Samuel Kaufman, Jr.

"February 25, 1949

* * * *

"Wherefore, the writer respectfully applies for admission to the practice of law before this Honorable Court together with all the rights and privileges pertaining thereto relating to the practice of the profession of law in the State of Idaho, all in accordance with the provisions of Senate Bill #32 aforesaid."

"s/ John W. Gunn

"February 28, 1949

* * * *

"I am respectfully submitting my application for admission to the State Bar of Idaho. I am enclosing a certificate from the University of Idaho showing that I have successfully completed the law course and will be issued a diploma at the June Commencement Exercises. I am enclosing three letters as proof of character."

s/ Sumner Delana

The State Bar Commissioners, March 8, filed objections thereto, asserting this Court has exclusive and inherent power in the premises, and has in the exercise thereof, adopted rules and regulations prescribing the procedure, fitness and qualifications of persons seeking admission to the Bar, and that said statute invades and nullifies such power and is an attempt by the legislature to exercise powers properly, exclusively and inherently belonging to the judicial department and this Court, in violation of Article II, Section 1 and Article V, Section 13 of the Constitution.

Other interposed objections, countered by applicants, by reason of the conclusion reached, need not be and are not considered.

Applicants traverse the Commissioners' objections and justify the statute as a valid and reasonable enactment of the legislature under its police -- Idaho Power etc. Co. v. Blomquist, 26 Idaho 222 at page 241, 141 P. 1083, Ann.Cas.1916E, 282; Ingard v. Barker, 27 Idaho 124, 147 P. 293 -- and reserve power in Article I, Section 21, so historically recognized and exercised, and that the constitution does not contrarily, expressly give such regulation and control of admissions to the judiciary.

Amicus curiae agreeing with applicants, additionally stresses the distinction between the existence of power and its exercise, the overlapping thereof among the three branches of government, c/f Clark v. Austin, 340 Mo. 467, 101 S.W.2d 977, hence application of principle of separation furnishes no reasonable distinction; that "inherent" and "power" are distasteful to inheritors of English freedom and to be scrutinized whenever their application tends to negative individual liberty, or narrow collective ordering of governmental machinery, apparently conceding the power to admit attorneys is generally considered to be a judicial function, but exercised solely as the act of admitting -- and if we understand counsel -- that all antecedent matters such as determining residence, citizenship, age, character and learning and ability are thus; and because no controversy exists therewith, no part of the judicial function which comprises alone the act of admission.

There is an attempt to gloss over or soften the imperative impact of the statute by suggestion that it may be considered directory and not mandatory. Such thought cannot be sustained, because; first, the applications are based on no such assumption; they are drawn squarely on the premise that, having the scholastic qualifications prescribed by the statute, the court has no alternative but to admit. Second, the wording of the statute is mandatory and upon compliance therewith, leaves nothing for the court to do but admit.

"Provided, however, that the following applicants shall be admitted as attorneys and counselors in all courts of this state without being required to pass any examination as to their qualifications with respect to learning and ability, * * *.

"An applicant who shall comply with the above requirements and pay the admission fee provided by law, shall be entitled to have issued to him by the Supreme Court of the State of Idaho, a certificate authorizing him to practice as an attorney and counselor at law in all courts in the State of Idaho." Chap. 73, 1949 Session Laws, p. 126. (Emphasis ours.)

Application of Levy, 23 Wash.2d 607, 161 P.2d 651, at page 655, 162 A.L.R. 805.

The distinction amicus curiae seeks to make between the fixing of standards and determination of an applicant's compliance therewith as ministerial acts and merely ascertaining that the applicant gives the documentary or oral proof that he possesses evidence of compliance furnished by school or university and the order thereon, the administering the oath and signing the roll of attorneys as the real judicial functions, while labored, in the dissent in Re Application for License to Practice Law, 67 W.Va. 213 67 S.E. 597, at page 604, the underlying California cases distinguished in Re Cate, Cal.App.1928, 270 P. 968, at page 984, is only a minority discussion and such case holds that the first is a prerequisite to the second; and to hold the first is ministerial and latter alon...

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