88 A.D. 102 | N.Y. App. Div. | 1903
Lead Opinion
This proceeding was instituted by Mi*. James M. Hunt, an attorney and counselor of the Supreme Oourt, by the presentation of. verified charges against the Hon. Theodore H. Silkman, surrogate of the county of Westchester, accusing him, in the precise language, of the charges, of “ practicing as an attorney and counsellor at law in the Supreme Court, Westchester county, and before this Appellate Division of the Supreme Court, said Supreme Court being a
The provision of the Constitution which Mr. Silkman is charged with violating is the following, contained in section 20 of article 6, viz.: “ JSTor shall any judge of the Court of Appeals, or justice of the Supreme Court, or any county judge or surrogate hereafter elected in a county having a population exceeding one hundred and twenty thousand, practice as an attorney or counselor in any court of record in this State, or act as referee.” Mr. Silkman was elected surrogate at the general election in the year 1900, at which time it is claimed that the population of the county of Westchester largely exceeded the prescribed number; but it is contended in his behalf that the word “ population,” as used in the section of the Constitution cited, is to be confined to the citizen inhabitants, excluding aliens, and that so construed the population of the county at the time of his election was within the limit of 120,000.
The question has been argued with force and ability on either side, but in the view taken of our jurisdiction we do not deem it necessary or proper to- decide it. Assuming that at the time of Mr. Silkman’s election it be true that the county of Westchester contained a population exceeding 120,000 within the meaning of the section referred to, then it necessarily follows that upon taking office on January 1, 1901, he was by the express terms of the Constitution at once suspended from practice as effectively as he could possibly be by any order of this court. In so far as the application, therefore, seeks the expression of this court’s opinion upon the abstract question of his right to practice in the absence of any special case in which he is assuming so to do, it but invites either the mere expression of opinion, or, at most, an order in the form of
The statutory power conferred- upon this court in the premises is. contained in section’ 67 of the Code of Civil Procedure, and, so far as applicable, it provides that “an attorney and counselor, who-is guilty of any deceit, malpractice, crime or misdemeanor,. * * * may be suspended from practice, or removed from office, by the Appellate Division of the Supreme Court.” There, is no charge in this case of the commission of any crime or misdemeanor, and the deceit and malpractice referred to relate, we-think, to some act of professional deceit and malpractice. If, however, Mr. Silkman has violated the injunction of the. Constitution, he has offended as surrogate, and not as an attorney. As an attorney his right to practice law is undoubted, and it is only as surrogate that it is or can be questioned, and it follows that the violation of the Constitution, if it has been violated, has been committed by him in his judicial or official rather than in his professional capacity. *
But it is urged that the Appellate Division has “ inherent ” power to discipline lawyers, and that an offense committed by a judge in practicing when prohibited is likewise an offense committed by him. as a lawyer which calls for the exercise of the inherent power. It may be conceded that an inherent power exists in the court by which attorneys are admitted to practice law, to discipline them in their, profession for any conduct exhibiting turpitude or the loss of that, good character Avhich was essential to admission and which must be deemed equally essential to continuance at the bar. But in the case of transgressions by judicial officers, the Constitution provides for punishment by removal from office, Avhich, in the absence of a. distinct expression to the contrary, should be deemed exclusive. Section 11 of article 6 of the Constitution provides that judges of the Court of . Appeals and justices of the Supreme Court may be removed by concurrent resolution of both houses of the Legislature on a vote of t.wo-thirds of all the members elected to each house
We think the jurisdiction invoked does not exist and that the charges should accordingly be dismissed. It is proper, however, to add that if the fact was established that the county of Westchester at the time of Mr. Silkman’s election did contain more than 120,000 of population within the meaning of the Constitution, it would undoubtedly be the duty and within the power of any court of record in the State in which he should attempt to practice law to prohibit and prevent him from so doing. All we decide is that we are not called upon to give an abstract opinion upon his right to practice law or to act as referee, in the absence of an actual case brought within our jurisdiction and involving the question ; that a suspension pronounced by this court would add nothing to the force
Bartlett and Hooker, JJ., concurred; Woodward, J., concurred in separate, opinion ; Goodrich, P. J., read dissenting opinion. , '
Concurrence Opinion
I would' content myself with, a simple concurrence in the views expressed by Mr. Justice Hirschberg, were it not that I feel that the dissenting opinion of Presiding Justice Goodrich does not present the correct view of the law, in so far as it relates to the question of population for political and administrative purposes. In passing, it may be proper to suggest that, while the definitions quoted from the standard dictionaries correctly defined the word “ malpractice ” in the abstract, I am clearly of the opinion that as applied to practitioners before this court it must have some relation to the discharge of professional duties. As was said in Matter of Baum (5 Silv. S. C. 463): “ Malpractice as a lawyer means evil practice in a professional capacity and the. resort to methods and . practices .unsanctioned and prohibited by law,” and in Case of J. V. N. Yates (4 Johns. 367) it was said that “ the word malpractice is. an appropriate term for a contempt committed by an attorney or solicitor, in abusing the practice of the court.” So in Mayor, etc., of Macon v. Shaw (16 Ga. 186) it was held that the crime of gambling by a city marshal did not constitute “ malpractice in office ” within a statute authorizing his dismissal for such malpractice, and I know of no rule of- construction which warrants an enlargement of the jurisdiction of a court of justice for the purpose of-limiting human liberties.
Theodore H. Silkman, an attorney and counselor at law, was elected to the office of surrogate of Westchester county,- and entered upon the discharge of his duties as such officer on the 1st day of January, 1901, after having taken and subscribed the constitutional oath of office, and it is ádmitted. that he has continued to
What are we to understand by the words “having a population exceeding one hundred and twenty thousand,” as used in section 29 of article 6 of the State Constitution ? Is the word “ population.” one of so precise definition that it may not be “ restrained unto the fitness of the matter ” and be made to conform to the spirit, of the instrument in which, it is used? We think not, and we are clearly of opinion that .the words “ having a population,” when used in the Constitution Of this State, which is to be considered . as - a whole, complete in itself, force to be given to every provision contained in it, and each clause explained and qualified by every other (People ex rel. Balcom v. Mosher, 163 N. Y. 32, 36), are to be understood as limited to the resident citizen population of the county. The Constitution of the State is a complete instrument; it provides .fertile creation of the departments of the State and limits the powers of the several, departments, and when it speaks of the population of the State, or.of any of the subdivisions of the State, we are to find the meaning of the words from the sense in winch they are used in connection with the other clauses of the instrument. The Constitution. (Art. 3, §§ 4, 5) provides a way of determining the population
When the people, the custodians of the political power of the State, as distinguished from negroes and other aliens present within the territory, met and in the name of the “ good people of this State” enacted a Constitution for the government of themselves through legislative, judicial and executive departments, they provided, among-other things, for the creation of a legislative power, consisting of two houses, the representatives in which were apportioned to the then existing counties, and it was also provided (Const. [1777} § 5) “ That as soon after the expiration of seven years, subsequent to the termination of the present war, as may be, a census of the electors and inhabitants of this State shall be taken, under the direction of the Legislature. And if on such census it shall appear that the number of representatives in assembly from the said counties is not justly proportioned to the number of electors in the said counties respectively, that the Legislature do adjust and apportion the same by that rule. And, further, that once in every seven years, after the taking of the said first census, a just account of the electors resident in each county shall be taken, and if it shall thereupon appear that the number of electors in any county shall have increased or diminished one or more seventieth parts of the whole number of electors, which on the said first census shall be found in this State, the number of representatives for such county shall be increased or diminished accordingly, that is to say, one representative for every seventieth part, as aforesaid.” The electors, who will be seen to have constituted the .basis of representation in the Assembly, were to con
The essential error in the reasoning of the learned presiding justice, as I view this question, is that- he seeks to give a popular general meaning to words which are used in a limited sense, failing to construe them in the connection in which they are used. He says: “ The words 'inhabitants, excluding aliens are used in sections 4 and 5 of article 3 in reference to the- exercise of political powers, while in article 6, section 20, the word ‘ population ’ is used with reference to judicial functions. In the exercise of political power aliens are not entitled to consideration as they have no participation therein, but their rights are to be regarded in respect of judicial functions which may come to have jurisdiction over their property.” What right or interest has an alien' in the mere machinery through which the laws are administered more than in the making of the laws themselves ? “ We, the people of the State of Hew York, grateful to Almighty God for our freedom, in order to secure its blessings, do establish this Constitution.” (Preamble to State Const.) It is not “We, the people in the State of Hew York,” but “We, the people of the State of Hew York;” we who have interests and citizenship; we who are “ grateful to Almighty God for our freedom ” — for that freedom and liberty which is ours by virtue of our birth and citizenship within the State, who ordained this Constitution. When we reflect, that “We, the people of the State of Hew York,” who have ordained this Constitution ; we who have formulated and adopted its provisions, without any aid or assistance from any of the Indians^ disfranchised persons or aliens, do not constitute all of the inhabitants or population, using those words in their broadest sense, but merely those in whom is vested the sovereignty , of the State, it seems absurd to say that the word “population,” used in the same instrument, and with reference
As we have already pointed out, the judiciary article of the Constitution, under which it is urged Mr. Silkman is denied the right to practice his profession in Westchester county, recognizes the enumeration provision of the Constitution as controlling in fixing the judicial districts, which, like those of the Legislature, are to be
If we are right in reaching the conclusion above stated, the other questions involved are much simplified. By the provisions of chapter 934 of the Laws- of 1895, a portion of Westchester' county, embracing the towns of Westchester and Pelham, and the first and second election districts of the town of Eastchester, was annexed to the city and-county of Hew York, and the validity of this act' was
But it is urged that under the census of the United States government, taken in 1900, the population of the county is shown to be 184,257, and we" are furnished a certificate of the acting director of the census that, “ according to the official count of the returns of the Twelfth United States Census, the total population of the county of Westchester, in the State of Hew York, is one hundred and eighty-four thousand two hundred and fifty-seven,” but there is nothing 'to indicate what portion of this number are aliens, nor is there any certificate that this is the actual number of inhabitants, so that unless this court may take judicial notice of the facts set forth in the United States census, for the purpose of determining a purely local and governmental or political question, involving no rights of property, the certificate can serve no useful purpose here, and must be disregarded ; for it is a maxim of the law that “ Where the Court cannot take judicial notice of a fact, it is the same as if the fact had not existed.” (Broom Leg. Max. 121, *163.) The United States census is not taken by an officer owing any duty to the State of Hew York in the discharge of his duties; he may be a citizen of a foreign State, and we are called upon to give full faith and credit only to the public acts, records and judicial proceedings of every other State ” (U. S. Const, art. 4, § 1), and not to the United States, which,
The motion to suspend the respondent, Mr. Silkman, from the practice of his profession is in all things denied.
Dissenting Opinion
I agree with Mr. Justice Hirschberg when he says that, assuming it to be true that the county of Westchester contained, a population exceeding 120,000 when Mr. Silkman was elected surrogate, “he ivas by the express terms of the Constitution at once suspended from practice as effectively as he could possibly be by any order of this court.”
If the population of Westchester county exceeded 120,000 when Mr. Silkman was elected surrogate, and he continued thereafter to practice as an attorney or counselor in any court of record in this State, he disobeyed the fundamental law of the State, and, in my opinion, is guilty of malpractice, the definition of which is given in standard dictionaries, as follows: Webster defines it as “Evil practice; illegal or immoral conduct; practice contrary to established rules.” The Century defines it as “ Misbehavior; evil practice; practice contrary to established rules.” The Standard defines it as “ Improper or immoral conduct; objectionable practice.” Worcester defines it as “ Practice- contrary to rules.”
I do not agree with Mr. Justice Hirschberg that if Mr. Silkman has violated the inhibition of the Constitution, he has offended as surrogate and not as attorney. True it is that for any breach of the constitutional inhibition, which by his official oath he swore he would support, he might be impeached in his office of surrogate, but it is not his acting as surrogate, but his acting as attorney and counselor that we are considering. Over the former we have no
Can it be doubted that if Mr. Silkman were to be impeached as Surrogate for disobedience of., the constitutional provision this court could suspend'or disbar him on that account?
It seems to be conceded by the counsel of Mr: Silkman that since his election as surrogate he has practiced as attorney and counselor in courts of record in this State. It is conceded that by the State census of 1892 Westchester county contained 130,360 inhabitants^ of whom 116,481 were citizens and 13,879 were aliens.
Mr. Endlich in his Interpretation of Statutes (§ 2) says: “ The first and most elementary rule of construction is, that it is to be assumed that the words and- phrases are used in their technical meaning if they have acquired one, and in their popular meaning if they have not.” At section 507 he says“ Like other instruments a constitution is entitled to a construction as -nearly as may be in accordance with the intent of. its makers, who, in this case, are the people themselves. Whilst, therefore, phrases that have acquired a settled meaning thoroughly understood, not only in legal parlance, but in common acceptation, are to be given that significance when used in a constitution, * * * where a phrase has both a technical and a popular meaning the former, which would ordinarily prevail in a statute, will be discarded for the latter .in a constitutional provision. Indeed, the language of the constitution, owing its' whole force to its ratification by the people, is always to be taken in its common acceptation, its plain, ordinary,' natural, untechnical sense. * * .* It follows that where the words of a constitutional provision, taken in t-h'eir ordinary sense and in the order Of their grammatical arrangement embody a definite meaning, which involves no absurdity or conflict with other parts of the same instrument-, the meaning thus apparent on the face of the provision is the only one that can be presumed to have been intended, and there is no room for construction.”
With this standard authority in mind let us consider the meaning of article 6, section 20 of the Constitution. The word “ popular tion ” there used does not seem to me to be synonymous with the
The words “ inhabitants, excluding aliens ” are used in sections 4 and 5 of article 3, in reference to the exercise' of political powers, while in article 6, section 20, the word “ population ” is used with reference to judicial functions. In the exercise of political power aliens are not entitled to consideration as they have no participation therein, but their rights are to be regarded in respect of judicial functions, which may come to have jurisdiction over their property., I again refer to the standard dictionaries for the ordinary, untechnical meaning of the word “ population,” that is, its common acceptation. Webster’s, Worcester’s, the Century and Standard dictionaries substantially agree in defining “ population ” as “ the whole number of people or inhabitants in a country or district.” In my opinion the' word “ population ” in article 6, section 20, includes all individuals resident in a county; and as it appears by the census that the number of such persons in the county of Westchester is more than 120,000, the section forbids the surrogate of that county to ' practice as an attorney or counselor in any court of record of this State or to act as referee.
It remains only to consider whether in the present proceeding an order may be made suspending Mr. Silkman from practice. I find adequate power in section 67 of the Code of Civil Procedure, which provides that an attorney who has been guilty of malpractice may be suspended from practice or removed from office by the Appellate Division of the Supreme Court. There is no prerequisite of motion to the court. The court may act of its own motion. The attention of the court having been called to the matter, we are called upon to act.
Motion denied, without costs.