In re Maddox

• Decision Date: 21 November 1901
• Citation: 50 A. 487,93 Md. 727
• Parties: In re MADDOX.
• Court: Maryland Court of Appeals

50 A. 487

93 Md. 727

In re MADDOX.

Court of Appeals of Maryland

November 21, 1901

Application of Etta H. Maddox for admission to the bar. Denied.

Argued before McSHERRY, C.J., and BRISCOE, BOYD, FOWLER, PAGE PEARCE, SCHMUCKER, and JONES, JJ.

Howard Bryant, for applicant.

McSHERRY C.J.

Miss Etta H. Maddox has made application for admission to the bar. In support of her application she has filed quite an elaborate brief. She is a female over 21 years of age, and is a graduate of one of the law schools of Baltimore. As we understand her position, there are two grounds upon which she relies to sustain her contention that she is entitled to be admitted to the bar, and these two grounds are: First, that the right to practice law is a natural right, inherently possessed by every one alike, without regard to sex, and therefore dependent in no way upon legislative authorization and, secondly, that, if the legislature has the power to prescribe who shall and who shall not be admitted to practice law, the applicant, though a female, is within the terms of the Maryland statute, and entitled to admission under it. These positions are essentially conflicting, and must be treated as alternative propositions, and therefore both must be considered.

That there is no such thing as a natural inherent right in any individual to practice law, we regard as conclusively settled by the case of In re Taylor, 48 Md. 28, 30 Am.Rep 451, even if it were doubtful on principle. In that case Charles Taylor, a negro, made application in 1877 for admission to the bar of this state. At that time the Code provided that such applications might be made by any "free white male citizen of Maryland above the age of twenty-one years." Code 1860, art. 11, § 30. It was contended that, though the legislature had in express terms declared that white male citizens were entitled to practice law, the applicant, who was a male citizen, but not a white male citizen, was still entitled, because the provision of the Code was repugnant to the fourteenth amendment to the federal constitution, and that the repugnancy consisted in the inequality which was created by the exclusion of the negro race as a class from the right to practice law. This court, speaking through the late Chief Judge Bartol, in the course of its judgment denying the claim of the applicant said: "The privilege of admission to the office of an attorney cannot be said to be a right or immunity belonging to the citizen, but is governed and regulated by the legislature, who may prescribe the qualifications required, and designate the class of persons who may be admitted." And the court then proceeded to quote with approval the following extract from the separate opinion of Mr. Justice Bradley in Bradwell's Case, 16 Wall. 142, 21 L.Ed. 446: "In the nature of things, it is not every citizen of every age, sex, and condition that is qualified for every calling and position. It is the prerogative of the legislature to prescribe regulations, founded on nature, reason, and experience, for the due admission of qualified persons to professions and callings demanding special skill and confidence. This fairly belongs to the police power of the state." These observations were made in a case which involved the right of a female to practice law in the state of Illinois. In the course of his argument in behalf of Mrs. Bradwell in that case, the late Mr. Matt H. Carpenter, after citing several decisions, said: "From these cases the conclusion is irresistible that the profession of the law, like the clerical profession and that of medicine, is an avocation open to every citizen of the United States. And, while the legislature may prescribe qualifications for entering upon this pursuit, it cannot, under the guise of fixing qualifications, exclude a class of citizens from admission to the bar. The legislature may say at what age candidates shall be admitted; may elevate or depress the standard of learning required. But a qualification to which a whole class of citizens can never attain is not a regulation of admission to the bar, but is, as to such citizens, a prohibition." The application of Mrs. Bradwell had been denied by the supreme court of the state on the ground that the applicant was a woman (55 Ill. 535); and upon writ of error the supreme court of the United States distinctly repudiated the contention that the fourteenth amendment abridged the right of the states to prescribe by statutes who should be admitted to practice law, and thus, of necessity, rejected the theory that the right to practice law was a right existing independently of statute.

Now, as to the second alternative: Prior to 1898 the Code provided, as amended by the act of 1892, c. 37, that "any male citizen of Maryland" possessing the qualifications therein mentioned might be admitted to practice law. Code, art. 10, § 3. In 1898, section 3 and other sections of the same article were amended. As amended, section 3 enacts that "all applications for admission to the bar shall be referred by the court of appeals to the state board of law examiners, who shall examine the applicant touching his qualifications for admission to the bar. *** If the court of appeals shall find the applicant to be qualified to discharge the duties of an attorney, and to be of good moral character and worthy to be admitted, they shall pass an order admitting him. *** Every applicant upon presenting himself for examination before the board of law examiners," is required to pay a certain fee; and it is further declared in the same section that "any fraudulent act or representation by an applicant in connection with his application or examination shall be sufficient cause for the revocation of the order admitting him to practice." Act 1898, c. 139. A perusal of this act of 1898 will show that the main, indeed, the only, purpose which the legislature had in view when it adopted the statute was to change the method of admitting applicants to the bar, and that there was no design to enlarge the class of persons entitled to admission. It is obvious, we think, that, under the Code as it stood prior to the adoption of the act of 1898, the present applicant, not being a male citizen, would have been ineligible, unless the rule of interpretation which declares that "the masculine includes all genders, except where such construction would be absurd or unreasonable" (Code, art. 1, § 6), would have brought her within the class of persons entitled to be admitted. Under the phraseology of the act of 1898, which deals alone with the masculine gender, the applicant is likewise excluded, unless the same rule of interpretation includes her. So, whether dealing with the original or amended provision on this subject, we confront this general rule of interpretation. It must be noted that the rule, whilst general, is, by its own terms, not without exceptions. It was couched in general terms because it was intended to be applicable throughout the Code to all subjects therein dealt with, except when its application to some of those subjects would be absurd or unreasonable. If this rule of interpretation does not make the statute declare precisely the reverse of what the words of the statute say, then there is no legislative provision under which the applicant can claim that she is entitled to practice law. And, if there is no such legislative provision, this court is powerless to admit her. We cannot enact legislation. We are restricted to an interpretation of that which has been adopted by the general assembly.

Has the rule of interpretation contained in section 6, art. 1, of the Code, any application to the subject-matter before us? By the common law, to which, under article 5 of the declaration of rights, the inhabitants of Maryland are entitled, no woman could, in person, take an official part in the government of the state, except as queen or overseer of the poor, without express authority of a statute. Though an attorney at law is not, in the widest sense of the term, a public officer, he is an officer, and is required to take an oath of office, which has remained without substantial modifications since the time of Lord Holt. In England no instance is known in which a woman was admitted to practice as an attorney, solicitor, or barrister. Robinson's Case, 131 Mass. 376, 41 Am.Rep 239. The rules of the common law and the usages of Westminster Hall from time immemorial excluded women from practicing as attorneys; and those rules, if not those usages, were ingrafted on our own jurisprudence more...