In Re Applicants For License.

• Decision Date: 27 November 1906
• Citation: 143 N.C. 1,55 S.E. 635
• Parties: In re APPLICANTS FOR LICENSE.
• Court: North Carolina Supreme Court

55 S.E. 635

143 N.C. 1

In re APPLICANTS FOR LICENSE.

Supreme Court of North Carolina.

Nov. 27, 1906.

1. Attorney and Client — Admission to Practice—Moral Character.

Revisal 1905, § 207, relating to the admission of attorneys, provides that "all applicants who shall satisfy the court of their competent knowledge of the law shall receive license to practice in the courts of the state." Section 208 provides that, before being allowed to stand an examination, each applicant must comply with certain conditions, among which "he must file with the clerk of the court, a certificate of good moral character signed by two attorneys who practice in that court." Held, that one who complies with the formal prerequisites is entitled to become an applicant and to be examined, and, if he shows himself to have competent knowledge, it is the duty of the court to license him without investigating his general moral character.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 5, Attorney and Client, § 5.]

2. Same—Power to Regulate.

The right to establish the qualifications of the office of attorney rests in the police power by virtue of which a state is authorized to enact laws to preserve the public safety, maintain the public peace, and promote and preserve (he public health and morals.

3. Constitutional Law—Legislative Powers—Encroachment on Judiciary.

Revisal 1905, §§ 207, 208, relating to the admission of attorneys, and making it the duty of the court to license an applicant where he has complied with the formal prerequisites and shows himself to have a competent knowledge of the law, is not in violation of Declaration of Rights, § 8, which provides that legislative, executiue, and supreme judicial powers of the government shall be kept separate and distinct.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 10, Constitutional Law, § 53; vol. 5, Attorney and Client, § 2.]

4. Same.

Revisal 1905, §§ 207, 208, relating to the admission of attorneys, and making it the duty of the court to admit to practice one who complies with the formal prerequisites and shows himself to have competent knowledge of the law, is not in violation of Const, art. 4, § 12. which ordains that the General Assembly shall have no power to deprive the judicial de partment of any power or jurisdiction which rightfully pertains to it.

[Ed. Note.—For cases in point, see Cent. Dig vol. 10, Constitutional Law, § 53; vol. 5, Attorney and Client, § 2.]

Brown and Walker, JJ., dissenting.

In the matter of applicants for license to practice law. Applicants licensed.

HOKE, J. At the beginning of the present term, when the court was about to enter on the examination of applicants for license to practice 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, c. 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 characters, shall be admitted to practice 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 practicing 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 practice in that court. An applicant from another state may have such certificate signed by any state officer of the state fromwhich he comes. (3) He must deposit with the clerk twenty-one dollars and fifty cents." And section 207: "No person shall practice 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 practice 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 practicing members of the court, is only a formal matter, fixing the status as an applicant. When this is done, and the other preliminaries complied with, section 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, § 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, Southerland Statutory Construction (2d Ed.) § 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 contestants 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 section 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) Section 12 of article 4 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 practice 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 section 8 of She 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 appellate 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 practicing member of the bar. As said in Ex parte Garland, 71 U. S., at page 379, 18 L Ed. 366: "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. State v. Moore, 104 N. C. 714, 10 S. E. 143, 17 Am. St. Rep. 696. Subject to constitutional restrictions and limitations, ...