In re Day

• Decision Date: 19 June 1899
• Parties: In re DAY et al.
• Court: Illinois Supreme Court

181 Ill. 73

54 N.E. 646

In re DAY et al.¹

Supreme Court of Illinois.

June 19, 1899.

In the matter of the application of Henry M. Day and others for admission to the bar. Denied.

Phillips and Boggs, JJ., dissenting.

Blewett Lee, A. M. Pence, and Lessing Rosenthal, for objectors.

Hamline, Scott & Lord, for applicants.

CARTWRIGHT, J.

This is an application to this court for admission to the bar of this state by virtue of diplomas from law schools issued to the applicants. The act of the general assembly passed in 1899, under which the application is made, is entitled ‘An act to amend section 1 of an act entitled ‘An act to revise the law in relation to attorneys and counselors,’ approved March 28, 1874, in force July 1, 1874.' The amendment, so far as it appears in the enacting clause, consists in the addition to the section of the following: ‘And every applicant for a license who shall comply with the rules of the supreme court in regard to admission to the bar in force at the time such applicant commenced the study of law, either in a law office or a law school or college, shall be granted a license under this act notwithstanding any subsequent changes in said rules.’ The eminent counsel who have argued the motion for admission on behalf of the applicants say that this provision, and all of the section preceding the proviso hereinafter mentioned, is prospective in its nature, and that it concedes to this court the power to make and change rules for admission to the bar, but annexes the additional requirement that, when they do change them in the future, any one who has commenced the study of law at the time of the change may have a license by complying with the rules for admission in force at the time such applicant commenced such study. They say that, so far as that provision goes, it means only that new rules hereafter made ‘must be prospective, and must not affect so-called ‘inchoate rights.” In this position counsel are unquestionably correct. A retrospective operation is not favored, and a statute will be construed to have a prospective effect, if such a conclusion is permissible. If the real design of the statute in that respect is doubtful, it will be construed to have a prospective operation only, and a retrospective effect will not be given to it, unless it clearly appears that such was the intention of the legislature. McHaney v. Trustees, 68 Ill. 140;Mortgage Co. v. Gross, 93 Ill. 483;People v. Peacock, 98 Ill. 172;Means v. Harrison, 114 Ill. 248, 2 N. E. 64. In this case no intention to make the enactment retrospective is expressed, but such an intention is clearly negatived by the attempt to legislate for those affected by the change already made, under the form of a proviso; and, further, if the enactment were retrospective, students to be examined would go to the appellate court, while the proviso sends them to the examining board. To hold it retrospective would make the proviso repugnant to it. The provision quoted, therefore, operates only as a rule for the future, and does not confer the rights claimed on this application. The change in the rules for admission to the bar made November 4, 1897, and the rules themselves, are unaffected by that provision, and counsel for applicants rest their claim wholly upon the proviso following such provision. After said provision there is a double proviso, one branch of which is that up to December 31, 1899, this court shall grant a license of admittance to the bar to the holder of every diploma regularly issued by any law school regularly organized under the laws of this state, whose regular course of law studies is two years, and requiring an attendance by the student of at least 36 weeks in each of such years, and showing that the student began the study of law prior to November 4, 1897, and accompanied with the usual proofs of good moral character. The other branch of the proviso is that any student who has studied law for two years in a law office, or part of such time in a law office ‘and part in the aforesaid law school,’ and whose course of study began prior to November 4, 1897, shall be admitted upon a satisfactory examination by the examining board in the branches now required by the rules of this court. If the right to admission exists at all, it is by virtue of the proviso, which, it is claimed, confers substantial rights and privileges upon the persons named therein, and establishes rules of legislative creation for their admission to the bar.

Now, the office of a proviso is to qualify or limit the enactment itself. It cannot enlarge the enacting clause, but can only restrain, qualify, or explain it. ‘The office of a proviso, generally, is either to except something from the enacting clause, to qualify or restrain its generality, or to exclude some possible ground of misinterpretation of its extending to cases not intended to be brought within its purview.’ Potter's Dwar. St. 118, note 11. It is intended to qualify what is affirmed in the body of the act, section, or paragraph preceding it. Boon v. Juliet, 1 Scam. 258;Sarah v. Borders, 4 Scam. 341;Huddleston v. Francis, 124 Ill. 195, 16 N. E. 243;City of Chicago v. Phoenix Ins. Co., 126 Ill. 276, 18 N. E. 668;Voorhees v. Jackson, 10 Pet. 449. This proviso, instead of excepting something from the enactment or qualifying it in some way, attempts to enlarge the enactment to which it is appended, and is designed to operate as a substantive enactment itself. That is not the legitimate office of a proviso.

Considering the proviso, however, as an enactment, it is clearly special legislation, prohibited by the constitution, and invalid as such. If the legislature had any right to admit attorneys to practice in the courts and take part in the administration of justice, and could prescribe the character of evidence which should be received by the court as conclusive of the requisite learning and ability of persons to practice law, it could only be done by a general law, and not by granting special and exclusive privileges to certain persons or classes of persons. Const. art. 4, § 22. The right to practice law is a privilege, and a license for that purpose makes the holder an officer of the court, and confers upon him the right to appear for litigants, to argue causes, and to collect fees therefor, and creates certain exemptions, such as from jury service and arrest on civil process while attending court. The law conferring such privileges must be general in its operation. No doubt the legislature, in framing an enactment for that purpose, may classify persons so long as the law establishing classes is general, and has some reasonable relation to the end sought. There must be some difference which furnishes a reasonable basis for different legislation as to the different classes, and not a purely arbitrary one, having no just relation to the subject of the legislation. Braceville Coal Co. v. People, 147 Ill. 66, 35 N. E. 62;Ritchie v. People, 155 Ill. 98, 40 N. E. 454; Railroad Co. v. Ellis, 165 U. S. 150, 17 Sup. Ct. 255.

The length of time a physician has practiced, and the skill acquired by experience, may furnish a basis for classification (Williams v. People, 121 Ill. 84, 11 N. E. 881); but the place where such physician has resided and practiced his profession cannot furnish such basis, and is an arbitrary discrimination, making an enactment based upon it void (State v. Pennoyer, 65 N. H. 113, 18 Atl. 878). Here the legislature undertakes to say what shall serve as a test of fitness for the profession of the law, and, plainly, any classification must have some reference to learning, character, or ability to engage in such practice. The proviso is limited, first, to a class of persons who began the study of law prior to November 4, 1897. This class is subdivided into two classes-First, those presenting diplomas issued by any law school of this state before December 31, 1899; and, second, those who studied law for the period of two years in a law office, or part of the time in a law school and part in a law office, who are to be admitted upon examination in the subjects specified in the present rules of this court, and as to this latter subdivision there seems to be no limit of time for making application for admission. As to both classes, the conditions of the rules are dispensed with, and as between the two different conditions and limits of time are fixed. No course of study is prescribed for the law school, but a diploma granted upon the completion of any sort of course its managers may prescribe is made all-sufficient. Can there be anything with relation to the qualifications or fitness of persons to practice law resting upon the mere date of November 4, 1897, which will furnish a basis of classification? Plainly not. Those who began the study of law November 4th could qualify themselves to practice in two years as well as those who began on the 3d. The classes named in the proviso need spend only two years in study, while those who commenced the next day must spend three years, although they would complete two years before the time limit. The one who commenced on the 3d, if possessed of a diploma, is to be admitted without examination before December 31, 1899, and without any prescribed course of tudy, while as to the other the prescribed course must be pursued, and the diploma is utterly useless. Such classification cannot rest upon any natural reason, or bear any just relation to the object sought, and none is suggested. The proviso is for the sole purpose of bestowing privileges upon certain defined persons.

It is not a mere change of system at a given date, but it recognizes the change made, and the power of the court to make future changes, subject to a certain restriction, and legislates for a particular class. Students who began before and after November 4, 1897, were pursuing their studies when it was passed, and those who began after that date, and before ...