Sweeney v. Cannon

• Decision Date: 29 March 1965
• Parties: Daniel T. SWEENEY, on behalf of himself and all other persons similarly situated, Plaintiff-Respondent-Appellant, v. Raymond J. CANNON, as Clerk of the Court of Appeals of the State of New York, Defendant-Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 183

258 N.Y.S.2d 183

23 A.D.2d 1

Daniel T. SWEENEY, on behalf of himself and all other persons similarly situated, Plaintiff-Respondent-Appellant, v. Raymond J. CANNON, as Clerk of the Court of Appeals of the State of New York, Defendant-Appellant-Respondent.

Supreme Court, Appellate Division, Second Department.

March 29, 1965.

Louis J. Lefkowitz, Atty. Gen. (Samuel A. Hirshowitz, and Philip Weinberg, New York City, of counsel), for defendant-appellant-respondent.

Wager & Shane, Mineola (Eli Wager, David M. Shane and Jerome H. Ehrlich, Mineola, of counsel), for plaintiff-respondent-appellant.

Howard F. Cerny, New York City (Alden Mesrop, New York City, of counsel), for Queens County Bar Ass'n, amicus curiae.

Before CHRIST, Acting P. J., and HILL, RABIN, HOPKINS and BENJAMIN, JJ.

HILL, Justice.

This action for a declaratory judgment was commenced in the Supreme Court, by an attorney admitted to practice in the courts of New York on December 9, 1957.

Among other relief, plaintiff seeks judgment declaring 'Chapter 204 of the Laws of 1963, and more particularly section 74 thereof, now known as section 467-a of the Judiciary Law of the State of New York, to be in violation of the Constitution of the United States of America and the Constitution of the State of New York' and to be 'null and void and of no force and effect.'

Section 74 of chapter 204 of the Laws of 1963 reads as follows: 'Every attorney and counsellor-at-law duly licensed and admitted to practice law in this state on the first day of September, nineteen hundred sixty-three, shall, on or before the first day of January, nineteen hundred sixty-four, file with the clerk of the court of appeals a certificate of registration upon a form which shall be furnished by the clerk, upon application therefor. A fee of fifteen dollars shall accompany the certificate of registration when it is transmitted to the clerk of the court of appeals for filing.'

On defendant's motion to dismiss the amended complaint for insufficiency, Special Term granted summary judgment to the plaintiff as follows: 'Ordered and adjudged, that § 467-a of the Judiciary Law of the State of New York is declared to be in violation of the Constitution of the United States of America and the Constitution of the State of New York and that said statute is null and void and of no force and effect.'

Chapter 204 of the Laws of 1963 contains 75 sections dealing with the revision of the tax schedule on liquor and with the revisions, amendments and additions to fee schedules for licenses, permits and other service charges made by the State with respect to various professions and trades.

Section 74 of said act (L.1963, ch. 204) added a new section--section 467-a of the Judiciary Law--quoted above. By February 28, 1964 the clerk of the court of appeals had remitted $727,820 to the State Treasurer, representing the aggregate of the $15 registration fees paid by about 48,521 lawyers.

Plaintiff claims: (a) that the statute is arbitrary, capricious and unreasonable because it requires an additional registration by attorneys--they having registered at the time of admission--and discriminates unlawfully because it requires no filing fees to be paid by attorneys admitted to practice after September, 1963; (b) that the tax is confiscatory since it is a tax upon officers of the courts; and (c) that the tax is arbitrary, oppressive and violative of the Fourteenth Amendment of the United States Constitution and of various provisions of the State Constitution (art. I, §§ 6, 11; art. III, § 22; art. VI, § 25).

The registration procedure provided by this act establishes the first comprehensive, accurate and up-to-date listing of attorneys in New York State.

That the State may prescribe reasonable qualifications, both for the initial admission to the bar and for the continuation of the right to practice law, is well settled (Matter of New York County Lawyers Ass'n (Roel), 4 Misc.2d 728, 156 N.Y.S.2d 651, affd. 3 A.D.2d 742, 160 N.Y.S.2d 982, affd. 3 N.Y.2d 224, 165 N.Y.S.2d 31, 144 N.E.2d 24, appeal dismissed 355 U.S. 604, 78 S.Ct. 535, 2 L.Ed.2d 524; Matter of Cassidy, 268 App.Div. 282, 51 N.Y.S.2d 202; 270 App.Div. 1046, 63 N.Y.S.2d 840, affd. 296 N.Y. 926, 73 N.E.2d 41; Saier v. State Bar of Michigan, 6 Cir., 293 F.2d 756, cert. denied 368 U.S. 947, 82 S.Ct. 388, 7 L.Ed.2d 343). As the court said in Saier (supra, 293 F.2d p. 759): 'License to practice law, the continuation of such license, regulation of the practice and the procedure for disbarment and discipline are all matters that are within the province of an individual state.' Such authority, like any licensing provision, presupposes the power to require registration as a means of establishing proof that one is a licensed attorney and to prevent frauds by means of fictitious certificates (Voit v. Walsh, Co.Ct., 125 N.Y.S.2d 720; People ex rel. Chicago Bar Ass'n v. Novotny, 386 Ill. 536, 54 N.E.2d 536, cert. denied 323 U.S. 734, 65 S.Ct. 71, 89 L.Ed. 588).

The courts have frequently upheld statutes expressly imposing license fees or taxes on attorneys under provisions pertaining to various occupations (Clay v. County of Monroe, 300 N.Y. 724, 92 N.E.2d 61; Franklin v. Peterson, 87 Cal.App.2d 727, 197 P.2d 788; Davis v. Ogden City, 117 Utah 315, 215 P.2d 616, 223 P.2d 412, 16 A.L.R.2d 1208; Sterling v. City of Philadelphia, 378 Pa. 538, 106 A.2d 793), or under provisions pertaining to attorneys alone (Ex parte Johnson, 47 Cal.App. 465, 190 P. 852; Matter of Gibson, 35 N.M. 550, 4 P.2d 643, [$5 annual fee upheld]). In other words, the State has the power to impose a license fee on attorneys as a police regulation or as a revenue measure (see Williams v. City of Richmond, 177 Va. 477, 14 S.E.2d 287, 134 A.L.R. 833).

In Ex parte Johnson (supra, 47 Cal.App. p. 466, 190 P. p. 853) the court sustained, as a revenue measure, an ordinance which read: 'Every person engaged in business as a lawyer, maintaining an office in said city, shall pay a license [fee] of $2.50 per month.' Similarly, the courts have consistently upheld provisions adopted in about half the states in the union which provide for an 'integrated bar,' that is, where every attorney admitted to practice is required to join a state bar association and pay dues (Lathrop v. Donohue, 367 U.S. 820, 81 S.Ct. 1826, 6 L.Ed.2d 1191 [annual fee of $15 held not unreasonable]; State Bar of Michigan v. City of Lansing, 361 Mich. 185, 105 N.W.2d 131; Petition of Florida State Bar Ass'n, 40 So.2d 902 [Florida]; 7 C.J.S. Attorney and Client § 60).

Section 467-a of the Judiciary Law requires only that attorneys file a certificate and pay a non-recurring fee of $15, in contrast to the far more burdensome charges above mentioned. Under the circumstances, the enactment of this statute was a reasonable exercise of the Legislature's power in response to the need for an up-to-date official register of attorneys in order to prevent the unauthorized practice of law. As such, it is not violative of the due process clause. As the court said in Wasmuth v. Allen, 14 N.Y.2d 391, 398, 252 N.Y.S.2d 65, 70, 200 N.E.2d 756, 759, app. dsmd. 379 U.S. 11, 85 S.Ct. 86, 13 L.Ed.2d 23: 'The imposition of a new requirement for the continued practice of a profession previously carried on without the need for such requirements does not violate the Constitution.'

Plaintiff argues that the statute was enacted for the purpose of raising revenue and, while conceding that lawyers are not entitled to exemption from business taxes, he argues that the instant statute 'imposes upon our profession alone, an arbitrary, unreasonable, unnecessary and excessive tax, in derogation of our life time privilege to practice that profession, subject only to the maintenance of good moral character and proper professional conduct by the individual practitioner.' Plaintiff contends that the fee charged has to be commensurate with the costs of the purpose to be served. In support of his contention plaintiff cites Adlerstein v. City of New York, Dept. of Water Supply, Gas and Electricity, 11 Misc.2d 754, 174 N.Y.S.2d 610, affd. 7 A.D.2d 717, 181 N.Y.S.2d 165, affd. 6 N.Y.2d 740, 185 N.Y.S.2d 821, 158 N.E.2d 512. There, pursuant to a provision of the Administrative Code of the City of New York (L.1937, ch. 929) for the licensing of electricians, the City sought to impose a $250 license fee on electricians. In its opinion (11 Misc.2d 754, p. 755, 174 N.Y.S.2d 610, p. 611) the court in that case stated: 'There is accord that the section of the code is not a revenue statute. There is further agreement that the fee which may be charged for the issuance of a license is such that will compensate the licensing authority for issuing and recording the license and pay for inspection to see to the enforcing of the license provisions.'

It is therefore apparent that in Adlerstein (supra) the power to pass the ordinance was reviewed in its very limited aspect as an exercise of the licensing power which had been delegated to the City. This was true, also, in the other case cited in behalf of plaintiff on this point (People v. Jarvis, 19 App.Div. 466, 632, 46 N.Y.S. 596). We, on the other hand, are now dealing with a legislative enactment which suffers from no such limitation. 'It is undoubtedly true that the Legislature may impose on professions, callings, businesses, and vocations license fees for the purpose of revenue, and, though termed license fees, they are enacted not under the police power, but under the power of taxation' (People ex rel. Moskowitz v. Jenkins, 202 N.Y. 53, 59, 94 N.E. 1065, 1067, 35 L.R.A.,N.S., 1079). Furthermore, as noted by the trial court in the instant case, contrary to Adlerstein (supra), the amount involved here is concededly not disproportionate for a true licensing fee.

It is argued that there is no provision in the statute (L.1963, ch. 204, § 74; Judiciary Law, § 467-a) for keeping the list up-to-date, and that...