In re Branch

70 N.J.L. 537 | N.J. | 1904

The opinion of the court was delivered by

Garrison, J.

The legal question raised upon this application is whether the petitioners are entitled, as of right, to the recommendation of this court to the governor for licenses as attomoys-at-law, notwithstanding they have not submitted themselves to one of the examinations required by the rules of the court adopted March 24th, 1902. Dispensation from such examination is claimed by the petitioners by force of an act of the legislature approved April 7th, 1903, recited at length in the petition. If this legislation has the force thus ascribed to it it is because it abrogates, pro tanto, the rules made by this court for the examination of applicants for its recommendation. The question, therefore, is whether the statute has this effect.

In approaching this question it should be noted, in aid oi precision, that the act in question is not only addressed solely to the granting of an immunity to a specified class of individuals, but that it is only by reading the practice and rules of this court into such act that it can be construed into a requisition to this court to recommend to the governor the individuals that come within the class specified, notwithstanding they have not submitted themselves to an examination with respect to their educational qualifications. Unless this force be attributed to the act, the present application is pointless.

Assuming such to be the construction of this statute, the question that is presented is not whether the recommendation of this court to the governor may be dispensed with by the legislature, but whether, assuming the necessity of such recommendation, the Supreme Court may be required to grant it to persons whose 'educational qualifications it is prohibited by the legislature from testing. In fine, the question is whether the court, as a recommending body, may be required by the legislature to base its certificate to the governor as to the educational qualifications of those whom it recommends upon a legislative immunity from, instead of a submission to,, an examination, designed to test such qualifications.

In order to see the exact nature and extent of such immunity it must be recalled that prior to March 24th, 1902, when the recent rules were adopted, a law student who was not a,college graduate must, before making his application for admission to his bar examination, have served a clerkship of four years. The effect of the adoption of the rules in question was to wipe out the four years’ clerkship entirely, doing away at the same time with the distinction theretofore accorded to a college diploma, and to substitute, as to all registered law students, a three years’ clerkship, plus an educational test, in which high school graduations were assimilated with college diplomas, and an examination which should be the equivalent of that required for high school graduation permitted to students who were graduates neither of high schools nor colleges. As to college graduates this left the matter as it had been before, but as to those who previously had been four-year students the new rule struck off one year from the term of clei'kship previously prescribed, substituting, however, in its stead, an educational test that placed such students upon a plane of exact equality with high school and college graduates. The effect, therefore, of the new rules upon the petitioners was to lessen their term of required clerkship from four years to three, provided they passed an examination equivalent to that required for high school graduates, provisions for holding which were made by the rules.

Such being the earlier rules in force at the time these petitioners began their clerkships and the later ones in force at the time of the passage of the statute in question, we are in a position to see what was the precise privilege or immunity granted by the statute under consideration to the class of persons within its purview, which, in a constitutional sense, includes all registered law students whose clerkships had, at the time of the passage of the act, to wit, April 7th, 1903, been running for three years — that is, all who on or before April 6th, 1900, had begun the service of such clerkship. Now, a clerkship that dated from April 6th, 1900, had, as we have seen, four years to run, so that when this statute provided, with respect to such clerkship, that if it had existed for tlmec years prior to the passage of the act it should entitle the student to the same status as if he liad taken the preliminary examination from which he was absolved by the act itself, an out-and-out immunity was granted not only from the examination provided for by the rules of this court, but also from one year of the term of clerkship provided for by the rules in force at the time such clerkship began, leaving as a net gain to the class included within this statute one year of actual clerkship, for which they have given no equivalent whatsoever.

That this statute, therefore, is one granting a privilege or immunity, is not to be questioned. That it grants such privilege or immunity to those individuals alone who are included within its classification, cannot be questioned. Hence, as to all not within such classification, the privilege in question is an exclusive one, within the meaning of article 4, section 7, paragraph 11 of the state constitution, which prohibits the legislature from granting to any individual any exclusive privilege or immunity whatever. The controlling question, therefore, is whether this statute is, in a constitutional sense, a special law, or whether it is general in the sense that it is “founded upon differences and characteristics sufficiently marked and important to make them naturally a class by themselves.”

The main feature of the classification adopted by the statute is a date that is related to the time of the passage of the act itself, namely, three years prior thereto, so that such registered law students only whoso clerkships began three years prior to April 7th, 1903, to wit, on April 6th, 1900, can ever enjoy the privilege or immunity created by the statute. The selection of the class thus delimited is justified in the brief of counsel as follows:

“The avowed intention of the legislature in enacting the act of April 7th, 1903, was to preserve a right that partook of the nature of a vested right, vested in certain individuals. This, in itself, rendered the act operative 'upon a limited class of persons ortiy, namely, those in whom the right vested. The most general classification possible, tiren, was one which would preserve this right where it existed and at the same time not extend a privilege to other persons who were in no way entitled to it.”

This application of the doctrine of “vested rights” proceeds apparently upon the notion that tire original term of the clerkships upon which the statute operated was three years, and therefore that the super-imposition of an examination not contemplated by such students at the time they entered upon their' clerkships was an unwarranted infringement of their rights; but this entirely overlooks the fact above pointed out, namely, that the so-called “vested right” of such student was to be recommended at tire expiration of a four years’ clerkship and not at the end of three years of such service. Without reference therefore to the fundamental fallacy involved in this conception of vested rights the theory itself totally fails to sustain the classification even upon the assumption of its soundness. No reason is advanced, and none I venture to say is conceivable, why a student who, on April 6th, 1900, entered upon a four years’ term of clerkship, should be recommended for license after serving but three years of such term, which would not be equally applicable to a student whose clerkship dated from April 8th instead of April 6th. The dispensation of one year from the term of required clerkship would in either case be a pure gratuity for which no more reason exists in one case than in the other.

I am therefore constrained to the conclusion that the classification adopted by this statute is arbitrary and illusory, and that the immunity granted by it to the class thus selected is contrary to the plain interdict of the constitution.

If, however, for the pur-pose of entertaining the argument mainly relied upon in the petitioners’ brief, we assume that the statute under consideration is free from the vice just imputed to it, we find such argument to be as follows:

Originally, in England, the right to appoint attorneys was a royal privilege. 1 Pollock & Maitland’s “History of English Law ,” p. 191; 2 Id., p. 224.

As early, however, as the thirteenth reign, Edward I., the exercise of this right was regulated by parliament.

“We may infer,” says the authority last cited, “that already, before 1292, these practitioners had acquired an exclusive right to be heard on behalf of others. In that year King Edward directed his justices to provide for every county a sufficient number of attornies- and apprentices from among those the best, the most lawful and the most teachable, so that king and people might be well served.” 1 Pollock & Maitland’s “History of English Law,” p. 194.

The direction referred to was the- statute of Westminster II., c. 10 (1285).

So that Ticld says: “Before the statute of 17esiminster II. (13 Edw. I.) c. 10 (1285) the parties to a suit could not hare appeared by attorney without the Queen’s special warrant, by writ or letters patent; but must hare attended the court in person. By the statute 3 Jac. I., c. 7, § 2, it was enacted that ‘none should from thenceforth be admitted attornies in any of the King’s courts of record at Westminster but such as had been brought up in the same courts or otherwise well practiced in soliciting causes; and had been found by their dealings to be skillful and of honest dispositions.’ ”

And Gilbert, in his “History of Civil Actions,” says: “Before the statute of Westminster II., c. 10, all attornies were made by letters patent under the broad seal, commanding the justices to admit the person to be his attorney. If such letters patent could not be obtained the persons were obliged' to appear each dajr in court in their proper persons.”

Numerous other acts of parliament showing the course of regulative legislation of this subject are cited in Liv. L. Reg. 30, and notes (1856-1858), with the summary that “long after the general right to appear by attorney had been recognized by law the class of persons on whom the duties of attorneys ordinarily devolved were without any legal regulation, though it would seem to have been competent to the presiding officers of any particular court to exercise a discretionary power in admitting persons to act in that capacity. With regard to attorneys of the Superior Courts at Westminster, it was provided, as far back as the 20 Edw. I. (1292), that judges should select from every county a number of attorneys and apprentices, of the best and most apt for their learning and skill, to do service in the courts. By 15 Edw. II., c. 1 (1322), the Barons of the Exchequer were restrained from admitting attornies except in pleas before them, and their clerks and servants were prohibited from admitting attornies, the power being reserved to the Chancellor and the Chief Justice to admit attornies, according to their discretion, as had before been observed,” and concluding with the remark that “although necessarily subject to local customs tef particular places and particular courts/ the bar of the United States, generally, is subject to the same principles and doctrines of common law applicable, to their brethren in England.”

From this exercise by the judges of certain of the English courts, under authority of parliament, of the power to admit attorneys, coupled with the unverified assumption that a similar power is exercised by the Supreme Court of New Jersey, a conclusion is reached which is thus stated in the brief of counsel:

“Our contention, therefore, is that it is the right of the legislature to regulate and control the admission of attorneys and counsellors-at-law in this state; that the legislature has the power to prescribe the requirements and qualifications incident to their admission; that the control thereof hitherto exercised by this court by virtue of the authority of ancient ordinances and statutes was always limited by this right of statutory regulation, restriction and alteration; and that the authority by which the power was originally conferred may regulate, control or divest it. Hence the act of April T'th, 1903, is not in derogation of any inherent, constitutional prerogative of this court, and should therefore stand.”

The assumption of fact upon which the validity of this argument depends, which has been conservatively characterized as “unverified,” is that the Supreme Court of New Jersey exercises the power of licensing attorneys or of admitting them to practice, and the conclusion of law based thereon is that as the right thus exercised is an inherited one, originally granted byparliament, it is still subject to legislative control. But it is not a fact that the Supreme Court of New Jersey licenses attorneys-at-law or admits them to practice, and if this function has ever been exercised by it, either in state or colony, I Lave been ■unable to discover the least trace of it, either as an inherited prerogative or as a statutory authorization. The nearest approach to it is a reference contained in a letter of one Ford. John Paris, annexed to a report made by Fran: Fane to the lords’ commissioners of trades and plantations, on tlie 3d of December, 1734. New Jersey Archives, vol. 5, p. 377. It may be gathered from this letter that on August 16th, 1733, a bill or. ordinance had been adopted by the colonial assembly of New Jersejr touching the practice of law, which was, upon the strength of this letter, adversely reported and disallowed h)' King George on April 13th, 1735. Allin. L., ¶. 99. What the provisions of this ordinance were touching “Practisers of the Law,” is left in obscurity by the letter in question. This is what it says:

“We skip now over the 12th to the 13th Clause, in ordv that we may consid1' altogether the sev1 parts w’ch relate to the Practisers of the Law, And this Enacts that no pson shall be at any time hereafter admitted to practise as an Atty but such as arc Skilled in the Law [who’s to try that, not their Judges in New Jersey, Sure] of good name & who have Served at least 7 y1"8 Apprenticeship to an Able licensed Atty, or has Studyed the Law 4 yrs at least after he came of full age — How their Judges may understand this word admitted I know not, whether they may not pretty fairly construe it permitted. And if so possibly the Scheme may be to throw out and exclude the whole prsent Sett of Practisers in Ordv to lett in a new Sett who must pay so many 20s to the Gov1' for their licenses, and so many 20s to His Secy, and so many 10s to his Cheif Judge; If so His Ex°y may raise a pretty sum of money & may do (as has been done in other places) turn a bill, for the regulating the Practisers of the Law, into a money bill.”

Prom the writer’s parenthetical references to the judges, it is evident that the ground of his apprehension was surmise only; but, on the other hand, his reference to the governor’s licenses indicates the existence of a practice already in recognized vogue. This colonial act was apparently a second attempt to provide a Practice act for New Jersey, a former act having been disallowed on November 25th, 1731. New Jersey Archives, vol. 14, p. 476.

In June, 1765, another act, entitled “An act regulating the practice of law and other purposes therein mentioned” (New Jersey Archives, vol. 10, p. 199), was passed, which was likewise disallowed by the King in council on December 9th, 1770. New Jersey Analytical Index, p. 417. The provisions of this act are not known save that it contained a clause suspending its operation until the King’s pleasure be known, and hence it never took effect.

As the result of such research as 1 have been able to give to the subject, the only conclusion i can reach is that the assumption of legislative authority upon which the petitioners’ argument rests is not only unverifiable, but is inferential^', if not demonstrably, unreal.

The matter need not, however, be further pursued as it is enough for present purposes to say, what no one can contravert, that attornevs-at-law in New Jersey are not appointed, licensed or admitted to practice by the Supreme Court or by any branch of the judicial department of the state. They arc invested with that privilege by letters-patent, issued under the great seal of the state by its chief executive, in language that is 'of itself a complete refutation of the assumption upon which tire petitioners’ argument is founded, viz.: ciI (the executive), being well assured of the knowledge, learning and ability of-, have thought fit to constitute and appoint, and by these presents do constitute and appoint him, the said -, an attorney-at-law and solicitor in Chancery, hereby authorizing him to appear in all the courts of record within the said State of New Jersey and there to practice as an attorney and solicitor in Chancery according to the laws and customs of said state, for and during his good behavior in the said practice, hereby authorizing and empowering Mm, the said-, to have and demand, take and receive such fees as are or may be by law established in the said state fon any service or services which he shall or may do as attorney-at-law or solicitor in Chancery in the said state. And all judges, justices and others concerned are hereby required to admit Mm accordingly.”

In this language three things should be noticed — first, it is that of a mandate addressed to the justices and not that of an appointment made by them; second, the executive licensee is constituted a solicitor in Chancery, a privilege that the Supreme Court of this state is confessedly powerless to confer; and third, that the patent itself is based upon an assurance by the executive that the licensee is possessed of certain qualifications. This assurance, historically speaking, refers to a certification by the Supreme Court as to the qualifications of the licensee and its recommendation to the executive for his appointment, which recommendation is likewise, as a matter of history, based upon an examination made by the Supreme Court or under its supervision. ■

This executive act rests upon no statutory authority, express or implied, although in the instructions to Jeremiah Basse, governor of the province of East New Jersey, sent by the proprietors on April 14th, 1698, was one requiring him to consent to the passage of a law that uo person should practice or plead for hire “but such as are admitted to practice by license of the governor of the province for the time being.” Leam. cP Spi-., p. 223.

I can find, however, nothing to indicate that such a law was. ever passed.

Similarly, the examination and recommendation by the Supreme Court upon which such action is based have no legislative antecedents, ancient or modern. The custom is sui generis. It originated as customs do, and has grown as customs grow, and is, both historically and constitutional!]1, susceptible of consideration quite apart from the question of the power of the legislature to provide some other mode of appointment, a question with which we are not now directly concerned.

The statute under consideration does not seek to withdraw the appointing power from the executive, or to do away with the recommendation by the judicial department as to the qualifications of appointees. Upon the contrary, it recognizes each of these subsisting institutions and limits its provisions entirely to denying- the right of the court as such recommending body to examine those whom it shall recommend. To this narrower question therefore our decision must be confined if we would avoid passing by way of dictum upon matters that are not before us. The decision that is thus called for seems to me to present no obscure questions. The words “certification” and “recommendation” used in the executive appointment so strongly connote the right to test by examination that which is certified, or him who is recommended, that, if not conclusive of such right, it at least prepares us to find that which historically appears, namely, that the recommendation of the Supreme Court to the executive has always included the right of that body to institute and conduct the examination upon which such recommendation was based; and also that, historically, this power has always been exercised by the Supreme Court under rules framed by itself, the earliest of which, in accessible form, were those adopted at the February Term, 1805. 4 Goxe.

From a small manuscript volume, in the possession of Garret D. W. Vroom, Esquire, on the title page of which, in the well-known handwriting of Garret D. Wall, is written “Rules and Orders of the Supreme Court, together with a list of the Attorneys, Counsellors and Serjeants of said court. G. D. Wall. Extracted by Garret Dorset Wall,” I copy the following rules which are all that pertain to the matter in hand, believing them to be otherwise inaccessible:

“August Term, 1752.

“To prevent any application to this court for the future for certificates of recommendation to the govr. for licensing of attys by persons not duly qualified ordered that no person be recommended by the judges of this court to the governor for a license to practice as an atty in this province by virtue of any indenture of clerkship hereafter to be made unless they shall have faithfully served in G. Britain, Ireland or in this province or any of the neighboring colonies for the space of five years to some atty or attys at law and shall produce a certificate of such service and of their good reputation. and behaviour. Provided nevertheless that if any person of approved integrity and of sufficient ability as tbe same shall appear upon public examination in open court shall desire to be recommended the court in their discretion may grant such recommendation.”

“April Term, 1767.

“Whereas, the mode and rule for the recomn of attys to practice in the several courts of this province has upon experience been found improper and inadequate for the valuable ends designed thereby. It is therefore ordered that for the future upon appn. of any person to be recmend as an atty at law of this province he shall produce a certificate from the gentlen whom he has served purporting that he has served him faithfully and constantly as a elk for the space of five years and that he is properly qualified both as to integrity and ability in his profession and that his ability and capacity be appd upon a public examination in open court without which no person shall be entitled to a recomn from the justices of this court to the govr for a license, and whereas the court also considering that the undistinguished admission to practice both as an-atty and counsellor at law has been inconvenient and the introduction of a contrary practice may be of great utility and put the profession of the law in this province upon a more respectful footing. It is'therefore ordered that for the .future the recomn as an atty and counsellor be distinct and that no person be admitted as an atty and counsellor at law until he shall have practiced as an atty for the space of three years at least and upon such appn to submit to such an examination in open court touching his ability and knowledge in the law as the court shall think proper.”

“September Term, 1780.

“Whereas it has become essentially necessary to the honor and dignity of this court as well as to the benefit and security of the suitors therein that some farther rule for the admission of att3rs should be established and inviolably adhered to— it is on full and mature consideration unanimously ordered by the court that no person whatever be hereafter recommended or admitted as an atty at law in this state under the age of twenty-one years and unless he shall produce a certificate from some gentleman of the profession with whom he has served purporting that' he has served him faithfully as a clerk for the space of five years and be approved of on an examination before one or more of the justices of this court at his or their chamber in the presence of such gentlemen of the bar as shall be appd. by the court for that purpose and any others who may think proper to attend. Provided that any person .who shall have been admitted to the degree of bachelor of arts in any colledge or university and shall be approved on examn as above mentioned may be recommended and admitted as an atty on producing a certificate of having faithfully served a clerkship of four years only. And that every atty so admitted shall practice at least three .years and pass an examn as afsd previous to his being recommended or admitted, as a counsellor at law in this state. It is further ordered that no gentleman altho regularly admitted shall practice as an att3r on record who doth not reside in this state. It is furthermore ordered that whenever an atty from another state shall malm application for a recommendation and admission as aid he shall produce to the court proper testimonials of his service as a elk and length of practice amounting in the whole to at least five 3rears and pass an examination as affd.”

These excerpts trace the custom in question from a period long antedating the constitution of 1776 down to the adoption of the constitution of 1844, and show that during all this time it was a practice continuously and uniformly exercised by this court as one of its well-defined powers. Constitutionally speaking, a custom having this history and no other antecedents, exhibiting these qualities and this course of administration, constituted, at the time of the adoption of the constitution of 1844, a distinctive attribute of the Supreme Court, having no existence apart from it essential to the government, and yet unclaimed and unchallenged by any other body within the state. It was therefore, both as an historical fact and as a legal conclusion, one of the powers of the Supreme Court as that tribunal then existed. A convention that included Henry- W. Green, Richard S. Field, Peter D. Yroom, Joseph C. Ilornblower, Martin Ryerson, Abraham Browning, Joseph F. Randolph, E. B. D. Ogden, O. S. Halsted and Mahlon Dickerson, will be assumed to have acted with knowledge of the power and practice of the Supreme Court. It was, in fine, one of those “powers” which, in addition to its “jurisdiction,” that court was, by that instrument, authorized to continue unless other provision was made therefor by the constitution itself, which was not done.

The circumstance that what was thus continued was a power and not a jurisdiction is unimportant, in view of the language of the constitution itself, which, by naming both, implies that one does not include the other. “Shall continue with like powers and jurisdiction,” are the words used. Likewise, the fact that the power so continued originated in custom and not by statute is without significance, since the constitution itself makes no such distinction 3 nor does the fact that the power in question is not specifically mentioned militate against its continuance. The power of Circuit Courts to decide for themselves and without review whether new trials should be granted is not specifically mentioned in the constitution, but such power is continued in such courts by force of the provision cited. Tunison v. Central Railroad, 26 Vroom 561. The right of the same courts to review by certiorari judgments in suits originated in justices’ courts is another instance of the same sort. Dufford v. Decue, 2 Id. 302. And numerous- other instances might be cited.

The test suggested by the case first above cited is “the existence of a well-defined power prior to the adoption of the constitutional law.” Such well-defined power existed, as,-we have seen, in the Supreme Court to examine those whom it recommended for executive license, and this power, in its relation to such recommendation and mode of appointment, is therefore, in my judgment, not subject to derogation at the legislative will.

Prom this it follows that the act of April 7th, 1903, whose-sole object is such derogation, is ineffective and affords to tire petitioners no- foundation for the demand which they have based upon it.

In framing these views care has been taken to avoid, any expression of opinion respecting matters which, though argued, are not within the purview of the statute of 1903, and hence not within the proper scope of the present decision.

The recommendation of the petitioners to the governor must be withheld.