# In re Application for License to Practice Law

> West Virginia Supreme Court · March 15, 1910 · 67 W. Va. 213

URL: https://www.frixlaw.com/law-library/cases/9042344

## Case

- **Full name:** In re Application for License to Practice Law
- **Court:** West Virginia Supreme Court
- **Decided:** March 15, 1910
- **Citations:** 67 W. Va. 213; 67 S.E. 597; 1910 W. Va. LEXIS 14
- **Precedential status:** Published
- **Opinion:** Dissent by Pofeenbarger
- **Judges:** Brannon, Miller, Pofeenbarger
- **Cited by:** 33 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9042344

## Opinion text

PofeeNBARGER, Judge,
(dissenting):
Being of the opinion that practically all the premises laid down in the 'opinion of the majority of the Court, as legal propositions, constituting the basis of the decision, are unsound and condemned by reason, historical facts and the best considered decisions, and that the conclusion announced is contrary to law, I am unable to concur in it. In my opinion, the certificate of the county court, as to the requisite of good moral character, is conclusive. Hence I neither make, *nor concur in, any finding as to the charges set forth in the. protest. Disregarding them and all the evidence adduced to sustain them, as being wholly immaterial, I favor the granting of the license. I have never come to any final conclusion that the applicant is guilty of false swearing or perjury. There is much doubt, in my mind, as to whether, in saying he had not sold or conveyed his property, *230 be was not testifying to a mere conclusion be believed to be true. Later he admitted all that bad been done. I did express an opinion as to bis knowledge and motive in conveying bis property, but I make that no part of my decision, nor do I assert that it involves moral turpitude, justifying refusal of a license, under the statute as construed by my associates. Utterly dissenting from that construction of the statute, and deeming the questions of fact, -raised by the protest immaterial, I do not decide them at all. Therefore, any remarks I may have made as to motive or purpose have no more to do with the conclusion of my associates than if they had been made by some one not a member of this Court, and have absolutely no place whatever in my own.
There is a distinction between the licensing of a person to practice law and his admission to the bar of the court, after he has been licensed. This Court alone can grant a license. That license is good all over the state, but it alone does not admit its holder to the bar of any court in the state, not even this, the granting, Court. A subsequent act of admission is essential to enrollment as a member of-the bar, and each court must do that for itself. The license is an essential pre-requisite to admission. Without it no application for admission can be made, but it is not admission, nor the equivalent thereof. Practicing without admission, after having obtained a license, is made a misdemeanor and punished by fine. Whether a licensee can be denied admission is another question altogether, and has no material bearing on the interpretation of the statute. In marking this distinction between license and admission, I am merely stating the plain terms of the statute. 4 Min. Inst. Part I, 204.
From this it is plain that the license only enables its holder to apply for admission. The requirement is a limitation upon the right to make such application. The legislation, imposing this restraint, is directed -primarily to citizens not attorneys. It concerns the entrjr of a citizen upon a certain vocation. Without this limitation, any citizen could apply for admission. Under it, only those who have complied with certain conditions can do so. This measure of regulation is justified by the police power of" the state, vested in the legislature. In nature, it is not unlike other license statutes. It is not an enabling act. On *231 the contrary, it is a limiting, regulating, act. Having plenary power over this subject, the legislature is the sole judge of the extent of the limitation. It could say the certificate of the county court as to moral character should be conclusive upon the person or tribunal, charged with the duty of granting the license. The extent of the limitation is a mere question of policy, lying wholly within the discretion of the legislature. It is not the province of courts to revise the work of the legislature and supply what, in their opinion, are omissions of provisions necessary to make a statutory system or plan wise and expedient. If that could be done in one case it could be done in all, and the courts would become legislative, as well as judicial, tribunals, a result positively forbidden by the Constitution of the State. Why should the courts add conditions to a statute,, prescribing the mode of procuring a license to practice law, any more than to one, prescribing the mode of procuring a' license to practice medicine, or keep a- hotel, or sell sewing machines, or act as a broker or real estate agent, or do any other lawful act? It cannot be maintained that there is any power in the • courts to require more than the statute specifies in any of these cases; but it is solemnly asserted that the legal profession is distinguishable from all other vocations in that it pertains to the judiciary, and this is invoked as justification for the departure from the rule governing in all other cases. To this, I cannot assent, but I defer discussion of it for the present.
This distinction between license and admission or membership of the bar has not escaped judicial notice. On the contrary, it has been asserted and emphasized. In Fisher's Case, 6 Leigh 619 , the superior court summarily revoked and annulled Fisher’s license for what it deemed malpractice committed in its presence. On an appeal to the general court of Virginia, this judgment was reversed, the court holding that, before such a judgment could be pronounced by the court below, the party accused must be regularly prosecuted by information or indictment and found guilty by a jury. It was observed, however, that the court, for misconduct, could have suspended or annulled the license, so far as it authorized the attorney to practice in the particular court, but no further. This would have amounted to nothing more, in effect, than disbarment or striking the attorney’s name from the roll of that particular court. Fry, *232 Juclge, said: “But it is believed, the power of no court at common law, extends farther than to fine, imprison, or disbar from its o'wn forum. Contempts, or other misconduct, may be punished by fine, imprisonment, or striking from the roll of attorneys. But striking from the roll of one court did not extend to any other court. * * * This power of the court, it se.ems to me, is''ample to vindicate a due respect for itself and the laws, in a case like that in this record. The additional power of summary suspension or revocation of license, is not necessary for such purpose.” In Ex-parte Hunter et als, 2 W. Va. 122, 144 , Judge BeowN said: “The license, of itself, and before admission or induction by the Court, does not constitute the holder an attorney or officer of any court, but simply entitles him to be admitted as such, to practice in all the courts of the state, upon his taking the oaths required by the laws in force at the time of such admission, unless good cause appear to the Court for withholding its permission. Any cause that would warrant the suspension or expulsion of an attorney from the office or, as it is commonly called, striking his name from the roll of attorneys, would equally authorize a refusal of admission.” He further says the admission of an applicant is a judicial, and not merely a ministerial act. Proceeding further he.says: “It 'will be observed also, that there is a marked distinction between the power of the Court to supersede or annul the attorney’s license, as provided in the fifth and sixth sections of chapter 164- of the Code, and the common law power to disbar him from jiracticing as an officer of the particular court. In the-former case it can only be done for the causes assigned, and in the mode prescribed by the statute, and when so done supersedes and annuls the license altogether, and alike debars from admission, and disbars after admission from all the courts of the state. But in the latter case, that is, of amotion or suspension from the particular court — the Court exercises only the common law powers of a court of record, and its judgment, whether called a judgment of amotion, suspension, expulsion, disbarment, or striking from the roll of attorneys, only affects the official position of the party in that particular court.” In State v. McClaugherty, 33 W. Va. 250 , this Court held as follows: “A circuit court may, independent and outside of the provisions of section 6, chapter 119 of Code 1887, strike the name of an *233 attorney from tlie roll of such court for sufficient cause, but it cannot, except in tlie manner provided by said statute, suspend or annul tlie license of an attorney.”
From the nature of a license, as we define and interpret it, as well as from tlie character of an attorney’s business, it follows that the regulation thereof belongs to the- police power of tlie state, exercised by the legislature and not by the'courts, except in so far -as tlie latter are charged with some duty in the execution of tlie power of the former. While the legal profession, .like all other vocations, rising to the dignity of professions, is honorable, such as those of teaching and medicine, tlie practice •of the law is still nothing more than a vocation. An attorney is in no sense a representative of the court in which lie practices. By virtue of his mere office of attorney, he neither represents nor binds the court by any act of his. He is .neither its agent nor its servant, although it may require of him the performance ■of certain duties.' His subjection to the power of the court in this respects does not flow from any representative relation. It is based upon the power of the court to make his right to practice therein dependent upon conditions, or upon the law imposing conditions enforcible by the court. He lias no judicial power and performs no judicial function. He is merely the adviser and advocate of his client. His advice never binds the court nor protects liis client, and, as advocate, he can demand ■nothing. These propositions are, or should be, matters of com* mon knowledge, such as even laymen should know. Those who •doubt them and rely upon bad advice of attorneys suffer a rude awakening in the courts. This is every day experience in litigation. The contention, therefore, that legislative, regulation of the licensing and admission of attorneys is an invasion of the power and authority of the judiciary, stands upon no legal principle. Legislative interference with something, pertaining to tlie courts, which is not, in any sense, judicial in character ■or function, cannot possibly constitute an invasion of the judicial department of the government. Suppose an attorney is an officer of the court in a certain sense. So are its clerk and ■sheriff. Certainty these offices can be made elective, notwithstanding their relations to the court are just as close in nature as that of attorneys, and their" powers and functions, as instru-mentalities in the administration of justice, are far more im *234 portant and powerful than those of an attorney. They are elective. They are so clearly independent and devoid of judicial power; that, by the constitution and laws, such persons as the people see fit to elect are installed in these offices. Why may not the legislature do the same in respect to attorneys? The truth is, notwithstanding dicta and and ill-considered opinions to the contrary, that the right to admission as an attorney never was a judicial right at common law, nor at all except ini so far as it has been made so by statute. At first, attorneys were appointed by royal letters patent under the great seal, commanding the justices to admit the persons therein named to be attorneys for certain persons. Later, the whole subject was regulated by statute 1 Bacon’s Ab. 474. The history of this subject, given in the work just cited, amply sustains the following statement and conclusion of the court of last resort of New York In Re Cooper, 22 N. Y. 67 , 90: “But the most serious objection to the law, and that upon which'the judgment of the court below was mainly based, is, that the power to appoint or admit attorneys and counsellors is vested exclusively in the courts, and that in this respect the act in question is in conflict with the Constitution and void. If such an exclusive power is vested in the courts, it must be derived directly from some specific provision or provisions of the Constitution. It cannot be claimed as a part of the inherent power of the courts, or as resulting necessarily from their, organizations as courts. To-show this, it is unnecessary to go at length into the history of attorneys and counsellors as a separate class. It’ will be sufficient briefly to refer to the manner in which, prior to the Constitution of 1846, they had received their appointments both here and in England. Barristers or counsellors at law, in England, were never appointed by the courts at Westminster, but were called to the bar by the Inns of Court, which were voluntary unincorporated associations. The power of the court to appoint attorneys as a class of public officers was conferred originally, and has been from time to* time regulated and controlled in England, by statute. (4 Hen. IV., chapter 18; 3 James I, chapter 7; 6 and 7 Vict., chapter 73, section 27; 20 and 21 Viet., chapter 77, sections 40-45). In this State it seems that attorneys, prior to the Bevolution, were .appointed by the Governor of the Colony. (People v. The Justices of *235 Delaware, 1 Johns. Ca., 182). By the Constitution of 1777, the power of appointing this class of officers was Tested directly in the courts; bnt the Constitution of 1822 was silent upon the1 subject, thus leaving the matter in the direction and control of the legislature, which at its next session passed an act requiring attorneys to be licensed by the courts in which they should respectively practice. It is plain, therefore, that although the. appointment of attorneys has usually been entrusted in this State to the courts, it has been nevertheless, both here and in England, uniformly treated, not as a necessary or inherent part of their judicial power, but as wholly subject to legislative action. I take no notice of the distinction between attorneys and counsel in the courts of this State, because the same principles in respect to the mode of appointment are of course applicable to both.”
The history of the law, concerning the licensing and admission of attorneys in Virginia, as set forth in 4 Min. Ins., p. 199, shows that, from the earliest times, the subject has been regulated by statute. In 1642, what was then known as the Grand Assembly required licenses from what was called the Quarter-Court, held by the governor and council, and one county court, and prohibited practice without it. In 1645, what were called mercenary attorneys were prohibited and required to be expelled. In 1656, the legislation, relating to mercenary attorneys, was repealed. In 1658, it was enacted “that noe person or persons whatsoever, within this eollony, either lawyers or any other, shall pleade in any courte of judicature within this eollony, or give councill in any cause, or controvercie whatsoever, for any kind of reward or profit whatsoever.” In 1680, it was provided that lawyers should be licensed by the governor, in order to exclude impertinent, busy and ignorant men from pretending to practice law. In 1682, this act was repealed. In 1718, a statute was passed regulating the charges of attorneys. In 1732 practicing in the county courts, without a license, issued by the governor and council, upon examination by persons learned in the law, was prohibited. In 1786, a statute was passed by the General Assembly providing “That no person except the attorney general, shall be permitted by any court to practice therein as a counsel, attorney at law or proctor, unless he shall heretofore have obtained a license, in the manner prescribed by the law then in force, or until he shall obtain a license in *236 ■writing from tliree of tliose, who shall be at that time, judges of the high court of chancery or general court; which license, if he produce to them a certificate from the court of that county wherein his’ usual abode shall have been during twelve months next preceding, that lie is a person of honest demeanor, such three judges are empowered and required to grant under their hands and seals, if, after examination, it be their opinion, that he is duly qualified.” On Feb. 15, 1819, an act was passed, providing that, before any person should be licensed to practice law, he should produce, to those thereby authorized to grant licenses, a certificate from the court of that county or corporation where he had usually resided for the preceding twelve months that he ivas a person of honest demeanor and upwards of twenty-one years of age; and that three of the judges of the superior court, upon such certificate being produced to them, might grant a license. The Codes of 1849 and 1860 contain this provision: “Any three judges of the superior courts of this State may grant a license in writing to practice law in the courts thereof, to any person who shall on examination be duly qualified, and who shall produce to them a certificate of the court of the county or corporation where he has resided for one year next preceding, that he is a person of honest demeanor, and is over twenty-one years of age.” Code 1860, chapter 164, section 1.. After the organization of this State, the statutory provisions 'were substantially the same, until the act of Feb. 17, 1897, became effective, and then the provision as to age, residence and moral character was not altered. Going back over these provisions, we observe that, from 1786 to 1819, a period of thirty-three years, a statute mandatorily required three judges to grant a license, on ascertainment of the possession of the necessary educational qualifications and the production of a certificate of the county court, showing residence and character. ■ Never, Lin all the history of this State or Yirginia, has any superior court been charged with the duty of ascertaining the moral fitness of the applicant. For one hundred and twenty-four years, this duty has been committed to county courts and no other. For more than one hundred years, the duty 'of issuing licenses to practice law was charged, not upon any court, but upon three judges of superior courts. Not until 1897 was it ever imposed upon any superior court, *237 and then no authority was conferred upon that court to conduct any inquiry as to age, residence or moral character. That function was left where it had been for more than a century. From 1786, it has been necessary to procure, first, a license, and, second, admission.
The general effect of this legislation has been a subject of judicial determination and interpretation by this Court. In Ex-parte Hunter, 2 W. Va. 122, 152 , Judge BeowN said: “Again,- attorneys have been the unquestioned subject of legislative control by the British Parliament from the reign of Henry III to the present time, and by the colonial legislature of Virginia, almost from the time of its inauguration until the Bevolution. Tins control has at all times beeen most absolute, and by the colonial government most arbitrary, and often inconsistent, unjust and even oppressive; prescribing their oaths and how they might be licensed, and admitted, to practice, and again expelling the whole profession from the bar; sometimes prescribing a fee, then changing them as suited the caprice of the legislature, and then again prohibiting, under severe penalties, their receiving any fees at all, and in some acts called and treated as a nuisance, and in some as mercenary attorneys. Yet no complaint is heard nor opposition offered to the power of the legislature in the premises except in a single instance, and then the power was re-asserted and enforced by the assembly. * * * Thus it would seem that in England and Virginia, until the ratification of the Constitution of the United States, attorneys at law were subject to the absolute control of the legislature as respects license, admission to the bar, and expulsion from it, oaths, fees and no fees, duties, conduct and punishment; and whether that control affected them prospectively or retrospectively, it was all the same; that control being influenced by considerations of a public nature, and based on the right and duty to subserve the public, was rarely, if ever, subordinated to the private interests of the attorneys.-” We have already analyzed cases in which this Court and the Virginia court have acknowledged the power of the legislature to control their action in respect to an attorney’s license. In both Fisher’s (Jase and the HoCUmgherty Case it has been solemnly declared and adjudged that the court cannot revoke a license in any manner other than that prescribed by the statute. Legislative *238 denial ^and limitation of compensation' of attorneys and their complete expulsion from the courts can mean nothing short of full and complete legislative power over them and over the courts as regards them. If the exercise of power to declare that nobody shall act as attorney and to enforce the declaration doés not mean complete legislative power over the subject, I am unable to perceive any relation between cause and effect or any obligation or force in logic. The power to regulate attorneys’ fees impli.es the same. Power in the states to tax federal agencies, such as national banks, is denied, not because of any express inhibition of the federal constitution, but bécause power to tax at all implies power to tax -without limit and that means power to destroy. A power of regulation or control, given for some purposes, must exist for all, unless there is an organic limitation. The legislature has always controlled the licensing of attorneys in this State and its power to do so has never been denied until now. The admission of attorneys, an essentially different thing, has been left, by the legislature, to the discretion of the courts. It has never attempted to interfere- with that, but its failure to do so does not argue lack of power to regulate it. '-There can be no loss of legislative power by non-user, as in some other cases. Its non-action simply leaves the common law in force, which continues only until altered by the legislature. Con. Art. Till., section 21. Our decisions on the subject of admission and disbarment, Walker v. State, 4 W. Va. 749 ; State v. McClaugherty, 33 W. Va. 250 ; State v. Stiles, 48 W. Va. 425 ; State v. Shumate, Id. 359; and State v. Hayes, 64 W. Va. 45 , do no more than declare the common law," unaffected by statute, not because the legislature cannot interfere with the subject but merely because it has not done so. There is not a suggestion of lack of legislative power to do so in any one of them. No decision of the federal supreme court contains a hint of any such lack of authority. . It is not found in Ex-parte Secombe, 19 How. 9 , nor Ex-parte Garland, 71 U. S. 333 , nor Ex-parte Wall, 107 U. S. 265 . In the Secombe Case it was found that a' statute did govern and 'was substantially the same as the common law. There are a few State eases which assert the supremacy of the courts over, the legislature in respect to the admission and disbarment of attorneys: Petition of Splane, 123 Pa. St. 527, a mere obiter dictum; Ex-parte Mosness, 39 *239 Wis. 509 , another dictum, pure and simple; In re Goodell, 39 Wis. 333 , in which the court indulged in a lot of high-sounding platitudes and a threat to the legislature and refused the applicant admission because of her sex, Justifying its action in part on the lack of a statute authorizing admission of women; In re Goodell, 48 Wis. 693 , in which, obeying a later statute, expressly forbidding denial of admission or license to any person on account of her sex, the same court merely reiterated its doubt as to legislative jurisdiction and power and admitted the applicant; Application for Admission, 31 Barb. (N. Y.) 353, denying legislative power, but most emphatically overruled by In re Cooper, 22 N. Y. 67 ; and In re Day, 181 Ill. 73 , the only existing, unimpeached, actual decision found, in which the power of the legislature to control the matter of admission to practice has been denied, on the ground of mere inherent, natural, exclusive, power, in the courts. The New Jersey cases do not assert it. Attorney’s License, 1 Zab. (21 N. J. L.) 346, says not a word on the subject. In re Branch, 70 N. J. L. 537, involved neither license nor admission, but only the duty of the court to certify to the governor educational qualification of certain persons to enable them to obtain licenses from the governor. The court held that the examination and recommendation of applicants belonged exclusively to the court, not because of any natural or inherent right, nor because it was necessary to the preservation of the separation of judicial from legislative power, but because the constitution had expressly vested exclusive control thereof in the supreme court. Concisely stated in the court’s own language, the proposition is: “The supreme court of New Jersey neither licenses attorneys-at-law nor admits them to practice. They are invested with that privilege by letters-patent, issued by the governor of the state when he is assured that such licensees are possessed of the proper qualifications by a recommendation to that effect from the supreme court, based upon -an examination made by it or under its supervision, which examinations so made or supervised has, from the earliest periods, been a distinctive attribute of the supreme court, and as such existed in unqualified form at the time the constitution of 1844 was adopted. The power of the supreme court thus to examine, for itself, those whom it recommended, for license, was therefore one of those ‘’powers’ which, in addition to its ‘jurisdiction,’ it fi^as *240 by that instrument authorized to ‘continued Assuming the continuance of such mode of appointment, a statute, passed in 1903, requiring the supreme court to recommend certain individuals without such an examination, is an unauthorized exercise of legislative control.” That case does not even countenance the doctrine of the Illinois court.' In taking shelter under an express constitutional provision, it impliedly denies and repudiates the idea of inherent power. The Indiana cases enunciate no such doctrine. Not a word on the subject is found in Garrigus v. State, 93 Ind. 239 . In In re Leach, 134 Ind. 665 , the exact opposite is asserted, for the court, after saying’ attorneys are subject to the rules of practice in court, and that the power of courts to control their attorneys is inherent, added “such rules, of course, not conflicting with the constitution and laws of the state.” This is an express acknowledgment of legislative supremacy, and I do not see how iny brethern can cite the case for the opposite contention. In O’Brien’s Petition, 79 Conn. 46 , the applicant contended, nor that there was inherent power in the courts to grant licenses or admit to practice, .beyond legislative control, but that a statute, expressly committing to the courts the matter of admission upon examination by a committee of the bar, was unconstitutional because it required examination by mere members of the bar instead of by some officer; but the court upheld the statute and thereby recognized legislative authority in the premises. To the weight of this lack of authority for the proposition, underlying the majority opinion, there is to be added that of the following cases, expressly declaring the contrary: Ex-parte Yale, 24 Cal. 241 , saying “The manner, terms, and conditions of an attorney’s admission to practice, as well as his powers, duties and privileges, are subject to legislative control, the same as any other profession or business that is created, .or regulated by statute;” Cohen v. Wright, 22 Cal. 293 ; In re Hovey, 80 Pac. Rep. 234 ; Champion v. State, 43 Tenn. (3 Cold.) 111 , declaring “An attorney, before he is permitted to practice law in this state, must, in open court, take an oath to support the Constitution of the United States, and the state of Tennessee, and to faithfully demean himself in the practice of his profession, &c. No court has the right to affix other conditions,’than those imposed by law”; In re Application for License, 143 N. C. 1 , holding that “The legis *241 lature lias the right to establish the qualifications to be required of one to become a practicing member of the bar by virtue of the police power which is vested in that body”; and In re Hovey, 81 Pac. Rep. 1019 , declaring “The finding of a referee appointed to ascertain and report as to moral character of applicant for admission to the bar that the applicant was of good moral character prior to his arrival in the state, and that he was then guiltless of crime or. improper conduct as -an attorney, is conclusive.” It is a just criticism upon the decision in the Day Case, 181 Ill. 73 , to say. the historic facts, relating to the admission of attorneys, which compelled the New York court of appeals to overrule one of its decisions, and drove the supreme court of New Jersey to the'shelter of an express constitutional declaration of exclusive power in itself, are all admitted and either denied any force whatever or given a significance diametrically opposite 'to that accorded them by the New York and New Jersey courts and its authority and reasoning were repudiated in the North Carolina case.
There could not have been any such exclusive power in the courts at common law. The power of the British, Parliament was supreme. It could dethrone the King and did so. It could destroy the courts and replace them with others of its own creation, and has done so. Judge Cooley, in his treatise on'Constitutional Limitations, pp. 124 and 125, says the parliament can do everything that is.not naturally impossible, wherefore some have not 'scrupled to call its power, by a figure rather too bold, the omnipotence of parliament; and quotes Sir Matthew Hale as having said “This being -the highest and greatest court, over which none other can have jurisdiction in the kingdom, if by any means a misgovernment should any way fall upon it, the subjects of this kingdom are left without all manner of remedy;” and Lord Burleigh as having said “That England could never be ruined but by a parliament.” Of course our legislatures have no such power, but they do have all the sovereign power not vested by express constitutional provision in the other two departments, the executive and judicial. Judge Cooley says, at page 126: “In creating a legislative department and conferring upon it- legislative power, the people must be understood fo have conferred the full and complete power as it rests in, and may be exercised by, the sovereign power of any *242 country, subject only to sucb restrictions as they have seen fit to impose, and to the limitations which are contained in the Constitution of the United States. The legislative department is not made a special agency for the exercise of specifically defined legislative powers, but is intrusted with the general authority to make laws at its discretion.” This means that the legislature possesses all sovereign power, not expressly or by necessary implication vested in the other two departments. It is the successor, in logic, of the British Parliament, except in so far as certain powers exercised by parliament have been carved out and lodged in the other two departments. This principle was recognized by the New Jersey court when it based its exclusive authority to recommend applicants for license to practice law upon the constitutional provision of that state, declaring the powers and privileges of the supreme court should continue, but entirely overlooked in the Illinois case, to which reference has been made. Our own Constitution impliedly says there is jurisdiction in the' legislature to regulate and control the exercise of judicial power. Section 39 of Art. VI says the legislature shall not pass local or special laws in any of certain enumerated cases, one of which is described as follows: “Begu-lating the practice in the courts of justice.” The constitution goes no further than to vest the judicial power in certain courts by it created and certain others which the legislature is allowed to create, and then the regulation.of the practice and procedure of the courts is left in the power of the legislature. The common law practice, except in so far as it had been repealed or modified by legislation, was left in force until the legislature should alter it. Even now, this Court is operating under certain statutes, governing its practice, that are not conducive to the best results for the public, nor the convenience of the Court. On the contrary, some of these regulations are inconvenient and materially impair the efficiency of the Court, by reason of delays and lack of system and order. But I apprehend it would strike the people of this State as novel, arbitrary, or possibly tyrannical, if we should refuse obedience to those laws and transact business in accordance with our own notions óf expediency, wisdom and justice. Again, it is to be observed that the selection of the personel of the court, the judges, is not and never was judicial. It has always been executive or legis *243 lative. Since tbe people are entrusted with the selection of the judges who preside in the courts, the real administrators of justice, and the legislature can prescribe all the rules of procedure, and the judges are bound to respect and obey them, let them impair the efficiency of the court or not, it strikes me as a strange doctrine that attorneys, who have .no judicial power and are the mere representatives of their clients, stand upon an infinitely higher and superior plane, beyond the reach of the people through lgislative power, and are responsible to the courts alone for their origin and rights. For this position, we have the high authority of the Supreme Court of the United States in Ex-parte Garland, 71 U. S. 333, 380 , declaring "The legislature may undoubtedly prescribe qualifications for the office (of attorney) to which he must conform, as it may, where it has exclusive jurisdiction, prescribe qualifications for the pursuit of any of the ordinary avocations of life.”
It is always proper to look to the possible consequence of the determination of any question, as having some bearing upon the correctness thereof. If the courts have exclusive power to say who shall and who shall not be attorneys and what qualifications they shall possess, and the legislature can exercise no power in this respect, that the courts are bound to submit to, the latter can raise the standard of educational, social and moral qualifications to such an extent as to exclude all but a few of the great body of citizens from the legal profession, and there is no power in the state that can prevent it. They could exclude women, the colored citizen, all male citizens who have not acquired the highest possible educational attainments, all but Methodists, or Baptists, or Presbyterians, or Catholics, or any other class. Gentlemen composing the bench and bar, and clothed with such absolute power, could soon make themselves a very select and exclusive class of citizens, from which worthy and competent men would be barred out on fanciful pretexts, bearing no just or reasonable relation to the nature or efficiency of the profession. There would be no limit to their arbitrary power. They might come in contact with 'some of the late amendments to the Constitution of the United States, but.the state is not supposed to look to them as factors in the determination of its own domestic policy, except as a limitation upon its powers. There was a time when these amendments did not *244 exist and they may cease to exist in the future. The constitution of the state has set no limitation upon the powers of the court in respect to the admission'ánd disbarment of attorneys, and if the legislature has no power of control in that behalf, there is none and they may do. what they please. It is not to be presumed, of course, that any such radical, unreasonable and unjust measures as those mentioned'will ever be adopted, but the framers of the constitution attempted to cover and provide for possibilities as well as probabilities. That instrument was made not merely for ordinary conditions and circumstances, but for times when conditions may be extraordinary and, for some reason, passion and prejudice and conflict of interest might attempt to obtrude themselves even into the courts. Such calamities, should they befall us[ would be remediable by a constitutional amendment, of course, but should we adopt a construction which makes possible the necessity of resort to so drastic a remedy, one in the nature of a revolution? If the power to regulate this subject is left in the legislature, ultimate and substantive rights, resjpecting the profession will be recognized as having originated in positive law, like those of other people, and be subject to the control of that branch of government to which the members of all other professions have to subordinate their interests and aspirations. ■ .
Having thus examined all the decisions, relied upon to sustain the supposition of exclusive power in the courts, in the light of legal principles, our system of popular government, and considerations of public policy, I am thoroughly convinced that, in so far as they assert the doctrine, they are founded upon mere sentiment and over-zealousness for the interests Of the profession, mistaken for reason and law, and accord to the courts a power far in excess of means necessary to preserve and maintain the efficiency of the judiciary. ■ Stilted exclusiveness and puritanical fastidiousness may be desirable and pleasant to bench and bar, but are not at all necessary to the due administration of justice, nor accordant with the spirit of our institutions.
Justification for the position taken in the majority opinion is sought in those decisions which say the function of admitting and disbarring attorneys is judicial. These enunciations do not imply what is claimed for them. In Walker v. State, 4 W. Va. 749 , State v. McClaugherty, 33 W. Va. 250 , State v. *245 Stiles, 48 W. Va. 425 , State v. Shumate, 48 W. Va. 359 , State v. Hayes, 64 W. Va. 45 , Ex-parte Secombe, 19 How. 9 , re Garland, 71 U. S. 333 , and Ex-parte Wall, 107 U. S. 265 , the judicial nature of the proceeding was adverted to or recognized as either justifying or precluding the remedy, invoked in the appellate court, and nothing more. Nowhere is it said that the judicial character of the proceeding places the matter of right to practice ot right to be retained in the court beyond the legislative power. In the Secombe Case, application was made in the Supreme Court of the United States for a mandamus to compel the supreme court of the territory of Minnesota to set aside an order entered by that court, removing Secombe from his office as attorney and prohibiting him from practicing his profession in any of the courts of that territory. The Supreme Court of the United States said no more than that, both at common law and under the statute of the territory of Minnesota, the admission and disbarment of attorneys was a- judicial act, and, for that reason, a mandamus could not be awarded to review the action of the territorial court. The statement of the nature of the proceeding was made for no other reason than to show that mandamm was not the proper remedy for review. We have held over and over in this Court that mandamus cannot be substituted for a, writ of error, and that is substantially all the Supreme Court of the United States decided in the Secombe Case, in which the principle was applicable. Our own eases, entertaining writs of error in proceedings of that kind, are precedents and authorities for the proposition that a writ of error lies and is the proper remedy to review a judgment of disbarment, because it is judicial and not administrative, and that is the only reason for saying the function is judicial. The Cooper Case, in 22 N. Y. 67 , well illustrates the fallacy of the argument of - the majority opinion. It says the admission of attorneys is a judicial and not an executive function. Thereby it justifies an appeal to the court of appeals. Then it proceeds to say and decide that the legislature has power to determine the conditions upon which persons shall be admitted, and these two propositions are not inconsistent. In that case Judge Selden said, after reviewing the English and early New York law, “It follows from what has been said, that unless the constitution of 1846 has either expressly or impliedly conferred upon *246 the supreme court, or upon the several courts, the exclusive power claimed iu this case, the -whole subject of the admission of attorneys and counsellors was left as theretofore in the hands of the legislature, subject only to the constitutional provisions bearing upon it.” Then after reviewing the reasoning of the judge of the court below, he continued: “In this, the judge no doubt is correct; but his inference that the power thus exercised by the supreme court is thus established so as to be beyond the control of the legislature is plainly erroneous. * * * The legislature has not taken from the court its jurisdiction over the question of admission, but it has simply prescribed what shall be competent evidence in certain cases upon that question. * * * some kind of formal admission was contemplated; but so far as I can see, that admission, under the provisions of the constitution, may as well have been by the governor, the attorney general, or any other, public functionary, as by the courts. There was a propriety, certainly, in investing the court with the power, as the legislature has done; but this was a question of mere legislative discretion.” The judicial character of the function of the court below, in refusing admission on the theory that the legislative act was unconstitutional, as invading the powers of the judiciary, was declared by the court of appeals as the basis of an appeal to enable that court to declare the judgment of the lower court erroneous, in holding that the legislature had no power to say who should be admitted to practice law. The court of appeals said the court below had acted judicially in passing upon the sufficiency of the evidence of certain facts and the constitutionality and validity of a statute, in acting on the application for admission. It did not say the creation of the right to admission was judicial. The inference of exclusive power in the courts, respecting the rights of attorneys, from the character of the function performed by the court in admitting or expelling them, is a confusion of right with remedy. The question we have here is not one of remedy, but of the source or origin of the right to be an attorney and practice in the courts. The function of the judiciary is to ascertain, declare and enforce rights given or created by the common law, statutes or the constitution, rights created, not by the judiciary, but by some other power. The origination.or creation of rights, whether personal or prop *247 erty, is no part of the judicial function. Its powers are to administer and enforce, not to make, laws. We have shown that, in the first instance, this right was conferred by the King and then by statute and never by the courts out of any inherent power possessed by them. They merely recognized and enforced it. In determining whether a person is heir, distributee, devisee or a legatee of an estate, the court acts judicially, but it would be absurd to say it creates the title or right of heir, distributee, devisee or legatee. The court acts judicially in passing upon the constitutionality of statutes and in construing them, but who would infer from that a claim of right on its part to pass statutes ? The court acts judicially in rendering a judgment in favor of a creditor for money or an owner of land for possession thereof and in decreeing specific performance of a contract, but who would say, for that reason, that it creates the debt or gives title to the land or makes the contract of the parties? The inference is an absolute non seqmtur. It should be- the exact opposite. That.the function is judicial implies the existence of a right in the attorney beyond the arbitrary or discretionary power of the court, a right originating in, and springing from, a source outside of the court, a right guaranteed by law so the court cannot take it away or deny it, except upon a hearing and for cause.
Another serious misapprehension, entering into the. reasoning and conclusion of the majority opinion, is the failure to distinguish between a license and admission. All of the decisions relied upon, for the controlling proposition, of that opinion, were rendered in cases of application for admission, except the ease in 70 N. J. L., and that was not an application for a license. It was an application for a certificate or recommendation to the governor as the basis of an application to him for a license. To say there is no difference between an application for a license and one for admission is to contradict the solemn, emphatic and deliberate decisions by which we are bound. Fisher’s Case, 6 Leigh 619 ; State v. McClaugherty, 33 W. Va. 250 . To say the Court can do, in respect to a license, what it can do, concerning an application for admission, or by way of disbarment, is to assert the exact contrary of what those decisions say. They declare that a license cannot be taken away by summary proceedings nor at all but for the causes and in the manner speci *248 fied in the statute. Because an informal proceeding and immorality suffice to debar or disbar an attorney, it is assumed that they justify refusal of a license, and that in the face of decisions which say the license, if granted, could not be revoked, 'suspended or annulled in any such manner nor for any such cause. The applicant here is denied a license for a reason which would not be sufficient cause for revoking it, if it had been granted, upon the fallacious and indefensible notion that license and admission are equivalent things.
None of the decisions, relied upon in the majority opinion are authority for the position that the granting of a license to practice law is a judicial function. They say admission and disbarment are judicial functions, but not that the granting of a license is, and we have shown that the two things are not the same. ■ Our legislation on the subject of licenses to practice law indicates that the granting thereof is a purely ministerial function. Never, until 1897, was the granting of a license to practice law made the duty, or committed into the ■ power, of any court. For more than a hundred years the duty had been imposed upon judges, acting in vacation, and no record of their action in' granting the same was made in their courts. It was purely a ministerial matter. They examined the applicants and acted upon- their own individual judgment as to whether, they had sufficient professional attainments or qualifications, and never looked beyond the order of the county court as to age, residence or character. The power was not exercised by any court, but only by judges off of the -bench and in obedience to, and by authority of, an act of the legislature. Nothing in the statute required or authorized them to look beyond the certificate of the county court. Their authority in the premises was purely statutory and the statute stopped short of any inquiry back of that certificate. They could not have had any common law power to do so, for they were not acting in any common law capacity, not as courts, but as judges. Now, what sort of a power was that and whence its emanation? How can it be said to have come from a court', when no court had anything to do with it? How can it be said not to have come from the legislature, when it all sprang from the legislature and not elsewhere? The act of 1897 simply transferred this power from the three judges to this Court, without any indication of any *249 intent whatever to change the nature or character of it. Iiow can it be said now to be different in nature and character from what it 'was when exercised by individual judges? There is an assumption in the majority opinion, that, in requiring no more evidence of moral character, age and residence, than the certificate of the county court, the legislature has not sufficiently, provided for the integrity and purity of the profession, and that, therefore, it devolves upon this Court to interpose further safeguards. It is elementary that courts cannot review, revise or amend legislative acts, because, in their opinion, such acts do not embody the peculiar notions or views of- the courts concerning expediency, policy and wisdom. If this Court is now the guardian of the legal ■ profession, authorized to exercise powers as such by refusing licenses, after the applicant has complied with all the statutory requirements, let me ask who held that office and performed- its functions during that century in which neither the- courts of last resort of this State and Virginia, nor any other court, except the county court, had any power, or was charged with any duty, respecting the granting and refusal of licenses ? The fact that nobody, for more than a hundred years, nor until now, in all the history of the state, ever lodged a protest in any court against the granting of such a license, and that in respect to integrity and purity, the legal profession of this State compares favorably with those of other states and the country at large, argue strongly that, in the opinion of both bench and bar, there never was any such guardianj and, in that of the legislature and the people of the state, that there was no occasion for any. This Court and every other court in the State, by its power of amotion, or disbarment or striking from the roll, has been abundantly able to keep its bar purged of unworthy persons, and that has been, in the opinion of the legislature and of the courts, ample protection from contamination, impurity and incompetence. It was very wisely determined at an early day that the time of the superior courts ought not to be consumed with such inquiries as the one raised here by this protest, and for that reason the question of moral fitness of .the applicant was left to the judgment oof the representatives of his own county, and I think there was no lack of power in the legislature to refer it to them, ’ and make their finding conclusive for the purpose of the application for a license.
*250 Whether a licensee can be denied admission, for any cause antedating the certificate from the county court as to his age, residence and moral character, or as to whether such a certificate, fraudulently or irregularly procured, can be invalidated I do not take the time to inquire, deeming it wholly unnecéssary for the purposes of this case, and as having no important bearing upon the question now under consideration. If the legislature sees fit to make the certificate conclusive not only for the purpose of obtaining license, but also for the purpose of obtaining admission, in respect to all matters antecedent to the date of such certificate, I have not the slightest doubt of its power to do so. If it has done so, it does not follow that the courts cannot disbar for misconduct after admission. If, by accident, an immoral man should thus get into the profession, the continuance of immoral conduct thereafter would justify his disbarment, and the power to exclude him would be amply sufficient to protect the courts from any serious injury or embarrassment.
The statute declares a right in favor of. a citizen. It says that, upon compliance with certain conditions, the court may grant a license to any citizen of the state. The applicant here has complied with every one of them. That vests in him a right de jure, in law, for the legislature is competent to give it and has done so. It is to be read as if it said any citizen may have a license, upon compliance with the conditions imposed. It follows'that the Court cannot withhold it. To say the right is not given and is not de jure is simply to confound license with admission, a matter in respect to which the legislature may not have restrained the judicial power. In my judgment, the authorities cited in the majority opinion, call for the reading of “may” in this statute as if it were “must.” To these a great many others could be added.
For these reasons, I would reject the protest and all the evidence, offered in support of its charges, and grant the license.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9042344. Public record. Not legal advice.