State ex rel. Ralston v. Turner

• Decision Date: 05 June 1942
• Docket Number: 31279.
• Citation: 4 N.W.2d 302,141 Neb. 556
• Parties: STATE ex rel. RALSTON v. TURNER.
• Court: Nebraska Supreme Court

4 N.W.2d 302

141 Neb. 556

STATE ex rel. RALSTON v. TURNER.

No. 31279.

Supreme Court of Nebraska

June 5, 1942

[Copyrighted Material Omitted]

Syllabus by the Court.

1. The character of police regulation, whether reasonable impartial and consistent with the Constitution and the state policy, is a question for the court.

2. When the legislature passes an act which plainly transcends the police power of the state, it is the duty of the judiciary to pronounce its invalidity.

3. Territorial courts are legislative courts, created in virtue of the national sovereignty, under clause 2, sec. 3, art. IV of the Constitution of the United States.

4. Establishment by Constitution of judicial department conferred authority necessary to exercise its powers as coordinate department of government. Const. art. V, sec. 1.

5. "The term 'inherent power of the judiciary' means that which is essential to the existence, dignity and functions of the court from the very fact that it is a court." In re Integration of the Nebraska State Bar Ass'n, 133 Neb. 283, 275 N.W. 265, 114 A.L.R. 151.

6. "The supreme court is vested with the sole power to admit persons to the practice of law in this state and to fix the qualifications for admission to the bar." State v. Barlow, 131 Neb. 294, 268 N.W. 95.

7. "The supreme court of this state has the inherent power to regulate the conduct and qualifications of attorneys as officers of the court." In re Integration of the Nebraska State Bar Ass'n, 133 Neb. 283, 275 N.W. 265, 114 A.L.R. 151.

8. Section 25, art. V, of the Constitution of Nebraska, contemplates that the supreme court may promulgate rules of practice and procedure for all courts, and does not limit the judicial power with respect to making rules setting forth the qualifications for applicants to take examinations for admission to the bar.

9. Section 27-210, Comp.St.1929, contemplates that the judges of the supreme court shall, during certain periods of time, revise general rules of the court and adopt additional rules, necessary or appropriate for the dispatch of business, and does not relate to the supreme court fixing qualifications for applicants to take examinations for admission to the state bar.

10. Sections 27-231, 27-233, 27-235, Comp.St.Supp.1939, provide in part that the supreme court shall have the power to promulgate general rules of practice and procedure, and do not relate to the supreme court fixing qualifications of applicants to take examinations for admission to the state bar.

11. The classification as contained in rule 3, adopted by this court, is not arbitrary, unreasonable and without rational basis and not violative of the relator's rights under the Constitution of the United States, in that such rule denies him the equal protection of the law, or deprives him of his property rights and liberty without due process of law.

12. The Fourteenth Amendment to the Constitution of the United States does not grant the right to practice law; nor is the right to practice law in the courts a privilege or immunity, within the meaning of the Fourteenth Amendment.

13. Where legislation from and after the adoption of the Constitution of 1875 until 1941 has not attempted in any manner to assert exclusive power to prescribe qualifications of applicants for admission to the bar, or to overrule any rule of the court relating to the qualifications of an applicant for admission to the bar, and the court has recognized that, within the limits of the police power, the legislature has prescribed minimum requirements for admission of an applicant to the bar; held, not to constitute acquiescence by the court that the legislature alone has the power to prescribe the qualifications of an applicant for admission to the bar.

14. Where a legislative bill constitutes an endeavor on the part of the legislature to go beyond the concept of minimum requirements of an applicant to take examination for admission to the bar and denies the judicial department the power to place higher qualifications than those specified in the act, and, in fact, usurps the power of the judiciary in such respect; held, such legislative act is unconstitutional.

15. Even if the subject of the legislation was a proper exercise of legislative power, the legislative bill in the instant case is unconstitutional and void in that it definitely freezes the class.

ROSE and YEAGER, JJ., dissenting.

John A. Ryan, S. L. Winters and Elmer E. Thomas, all of Omaha, for relator.

Hall, Cline & Williams, of Lincoln, for defendant.

Heard before SIMMONS, C. J., and ROSE, EBERLY, PAINE, CARTER, MESSMORE, and YEAGER, JJ.

MESSMORE Justice.

The relator brought this original action to obtain a writ of mandamus against the clerk of the supreme court and secretary of the state bar commission, to compel him, as an administrative officer, to accept and file the application of the relator to take the state bar examination.

It is not questioned that the relator possesses all of the qualifications and made the proper application to take the state bar examination, as provided for in L. B. 114, Laws 1941, c. 7, an amendment to section 7-102, Comp.St.1929 (Comp.St.Supp.1941, sec. 7-102). The application, together with a tender of the fee therefor, was rejected by the defendant (respondent), for the reason that the law school from which the applicant graduated was not a reputable law school, within the meaning of rule 3 of the rules of the supreme court for admission of attorneys. Applicant entered the University of Omaha Law School in February, 1938, and graduated therefrom June 13, 1941.

Rule 3, adopted by this court June 5, 1937, is in part as follows: "A reputable law school within the meaning of this rule for admission to the bar is one on the approved list of the standardization agency of the American Bar Association, or, until July 1, 1940, any other law school now operating in the State of Nebraska receiving the approval of the Supreme Court."

L. B. 114 (Comp.St.Supp.1941, sec. 7-102) reads in part as follows: "All resident law schools now organized, operating and existing within this state are hereby declared to be reputable law schools; and graduates of any such law school are hereby declared to be eligible to take and may take the bar examinations hereinbefore provided for without discrimination; and, upon passing such examinations, they shall be admitted to the practice of the law at the bar of this state." This law became effective March 12, 1941. It makes it unnecessary for the school to be on the approved list of the standardization agency of the American Bar Association, and gives the school legislative accreditment.

The issue to be determined is whether the court must acquiesce in the qualifications for admission to the bar as prescribed by the legislature. Does the legislative or judicial department have authority to prescribe rules for admission to the bar?

The relator contends: "The right of the legislature to pass laws for the admission of attorneys to the bar is founded in the police powers of the state, which powers can be exercised by the Legislature only."

The case of State v. Drayton, 82 Neb. 254, 117 N.W. 768, 23 L.R.A.,N.S., 1287, 130 Am.St.Rep. 671, is cited, holding: "Within constitutional limits, the Legislature is the sole judge as to what laws should be enacted for the protection and welfare of the people, and as to when and how the police power of the state is to be exercised." It is said in the opinion that jurists and writers of texts have not adequately prescribed the true extent and limitations of the police power, and the following quotations from 22 Am. & Eng. Ency. of Law appear in the opinion:

"It has been found impossible to frame, and is indeed deemed inadvisable to attempt to frame, any definition of the police power which shall absolutely indicate its limits by including everything to which it may extend and excluding everything to which it cannot extend, the courts considering it better to decide as each case arises whether the police power extends thereto." 22 Am. & Eng. Ency. of Law, 915.

"The character of police regulations, whether reasonable, impartial, and consistent with the Constitution and the state policy, is a question for the courts, for the police power is too vague, indeterminate, and dangerous to be left without control, and hence the courts have ever interfered to correct an unreasonable exertion or a mistaken application of it." 22 Am. & Eng. Ency. of Law, 936. In the last analysis, the courts determine whether legislation is within the police power or exceeds it.

Our attention is directed to several statutory enactments, viz Laws of 1855, sec. 1 (p. 199); Revised Statutes of 1866, ch. III, sec. 1 (p. 14); General Statutes of 1873, ch. V, sec. 1 (p. 94); Compiled Statutes of 1895, ch. VII, secs. 1 and 2 (p. 108). The contention is that the legislature throughout its history has enacted statutes which control the admission of persons to the bar. Without detailing the statutory provisions, all legislation with reference to applicants for admission to the bar from the act of March 9, 1855, to the inclusion of the state into the Union in 1867, was during the period of territorial courts. All of such courts were legislative, created in virtue of national sovereignty under clause 2, sec. 3, art. IV of the Constitution of the United States. See O'Donoghue v. United States, 289 U.S. 516, 53 S.Ct. 740, 77 L.Ed. 1356. From and after the inclusion of the state into the Union and the adoption of the state Constitution, the legislature has provided certain qualifications for applicants for admission to the bar, and in so doing used the following language: "No person shall be admitted *** unless ***" (section 7-102, supra),...