Henington v. State Board of Bar Examiners

• Decision Date: 03 January 1956
• Docket Number: No. 5987,5987
• Citation: 60 N.M. 393,291 P.2d 1108,1956 NMSC 1
• Parties: Harry C. HENINGTON, Plaintiff-Appellant, v. STATE BOARD OF BAR EXAMINERS; and Bryan G. Johnson, L. C. White, Frank Andrews, Rosser L. Malone, Jr., and W. C. Whatley, who constitutes its members, Defendants-Appellees.
• Court: New Mexico Supreme Court

Page 1108

291 P.2d 1108

60 N.M. 393

Harry C. HENINGTON, Plaintiff-Appellant, v. STATE BOARD OF BAR EXAMINERS; and Bryan G. Johnson, L. C White, Frank Andrews, Rosser L. Malone, Jr., and W. C. Whatley, who constitutes its members, Defendants-Appellees.

No. 5987.

Supreme Court of New Mexico.

Jan. 3, 1956.

Rehearing Denied Jan. 19, 1956.

Jack Love, Roswell, for appellant.

Richard H. Robinson, Atty. Gen., Fred M. Standley, Asst. Atty. Gen., Paul L. Billhymer, Asst. Atty. Gen., Howard F. Houk, Santa Fe, for appellees.

LUJAN, Justice.

Harry C. Henington, plaintiff (appellant), asked the Board of Bar Examiners to permit him to take the New Mexico bar examination. He tendered his application accompanied by the required examination fee, but did not enclose with said application a diploma or a properly authenticated certificate showing his graducation from an accredited law school, nor a certificate of an attorney of this state that he is a person of good moral character as is provided by rule.

Rule 1, Sec. 2 reads as follows:

'No person, other than those admitted on certificate from other states, shall be granted a license to practice law in this state or shall be entitled to take examination for admission to the Bar unless such person shall have graduated from a law school approved by the American Bar Association as meeting the standards of that Association. (Sec. 18-1-8 of 1953 Compilation.)' (Emphasis ours.)

The Board of Bar Examiners rejected plaintiff's application. On June 8, 1954, the plaintiff filed his complaint in the District Court of Santa Fe County and prayed for an alternative writ of mandamus, seeking to compel the Board of Bar Examiners to examine him as to his qualifications for admission to the bar. On June 14, 1954, the District Court issued an alternative writ of mandamus commanding the Board of Bar Examiners to examine the plaintiff as to his qualifications for admission to the State Bar of New Mexico, and to make an independent investigation of his moral character within thirty days or show cause why it has not done so. An answer was filed by the Board of Bar Examiners, and after a hearing, the alternative writ of mandamus was quashed, and plaintiff appeals.

Under point two plaintiff contends that the so-called 'college' rule violates the Fourteenth Amendment to the Constitution of the United States and Sec. 18 of Article 2 of the New Mexico Constitution. We are of opinion and so hold that the educational qualifications required of applicants before they are permitted to practice law in this state does not violate the Fourteenth Amendment or Sec. 18 of Article 2 of our Constitution, either in regard to the clause requiring due process of law, or that providing for equal protection of the laws.

In State v. Rosborough, 152 La. 945, 94 So. 858, the court said:

'* * * But the defendant conceives, and in brief and in argument urges, that he is denied some right guaranteed to him by the Fourteenth Amendment to the Constitution of the United States, and section 2 of article 1 of the Louisiana Constitution of 1921, to wit, that no person shall be deprived of life, liberty, or property without due process of law, or be denied the equal protection of the law.

'As to this, suffice it to say that the right to practice law in the state courts is not a privilege or immunity of a citizen of the United States. In re Lockwood, 154 U.S. 116, 14 S.Ct. 1082, 38 L.Ed. 929.

'For the rest----

"The practice of law is not a business open to all who wish to engage in it, nor is it a natural right or one guaranteed by the Constitution; but a personal right or privilege limited to a few persons of good moral character, with special qualifications, duly ascertained and certified. It is in the nature of a franchise from the state conferred only for merit, and is not a lawful business except for members of the bar who have complied with all the conditions required by statute and the rules of court."

See, also, Schware v. Board of Bar Examiners of the State of New Mexico, 60 N.Mex. ----, 291 P.2d 607; Hulbert v. Mybeck, 220 Ind. 530, 44 N.E.2d 830; Seawell v. Carolina Motor Club, 209 N.C. 624, 184 S.E. 540; Kraushaar v. La Vin, 181 Misc. 508, 42 N.Y.S.2d 857; In re Summers, 325 U.S. 561, 65 S.Ct. 1307, 89 L.Ed. 1795.

And in the case of Rosenthal v. State Bar Examining Committee, 116 Conn. 409, 165 A. 211, 213, 87 A.L.R. 991, the court said:

'* * * The basis of the petitioner's claim upon this phase of the case is that the court could not delegate to the bar examining committee the power to determine the law school in which the petitioner should be required to study in order to be entitled to take the examination for admission. * * * In Connecticut, from the earliest times, to prevent the admission of unqualified persons into the practice of the profession, the courts have employed the members of the bar for the purpose of ascertaining the character and qualifications of those applying for membership. This is a reasonable usage. * * * The claim of the petitioner, that to commit to an examining committee the power to determine the educational qualifications of candidates for admission is an unlawful delegation of judicial power, is without force when we consider that from the earliest times in this state, it has been the uninterrupted practice for the court to rely on the bar for investigation as to such matters. * * * The ultimate purpose of all regulations of the admission of attorneys is to assure the courts the assistance of advocates of ability, learning, and sound character and to protect the public from incompetent and dishonest practitioners. * * * While the determination of the qualifications of attorneys to be admitted to practice in our courts pertains to the judicial department, the decisions which must be made in carrying out the procedure established by the rules of the judges to accomplish that end are not judicial in their nature and may properly be vested in the bar examining committee, including the power to determine what law schools shall be approved as furnishing a sufficient educational basis for admitting a candidate to the examination. Nor can it be maintained that the bar examining committee exceeded its powers or acted unreasonably in approving the same schools as the Council of the American...