Opinion
Supplemental opinions on rehearing.
For former opinions, see 270 P. 968, 271 P. 356. COUNSEL
Alfred E. Cate, of Los Angeles, for petitioner.
Hewitt, McCormick & Crump, of Los Angeles (Guy Richards Crump, of Los Angeles, of counsel), for respondent Los Angeles Bar Ass’n.
OPINION
WORKS, P.J.
A petition for a rehearing of this matter was filed for the consideration of this court and it was in due time denied. 271 P. 356. Thereafter a petition for hearing was presented to the Supreme Court and it has been granted. The petition filed with the latter court is much more full than the one presented to us. In addition to the petition itself, a comprehensive brief has been filed in support of it by friends of the court. The briefs which preceded our main opinion in the proceeding were meager, although doubtless containing all that counsel thought was necessary to a presentation of the case, in view of the strong expressions contained in California decisions, and the greater part of the opinion is the result of a research conducted by ourselves. The case has now been fully argued for the first time, in the petition and brief upon which the Supreme Court has acted in granting a hearing.
Our faith in the correctness of the views expressed in our main opinion has been strengthened by a perusal of the petition and brief which lie in the Supreme Court files, but points are presented in them which make it advisable for us to amplify and elucidate some of the views stated in the opinion. Under the language of the Supreme Court in Houston v. Williams, 13 Cal. 24, 73 Am.Dec. 565, a notable declaration of the control which a court may exercise over its own opinions until they are officially published, we think it proper to present that amplification and elucidation in the form of a supplemental opinion. In the case cited, Justice Field, after drawing a distinction between an opinion proper and the judgment which is pronounced at its end, said that an opinion "is the property of the judges, subject to their revision, correction, and modification, in any particular deemed advisable, until, with the approbation of the writer, it is transcribed in the records"; evidently having in mind its "transcription" in the official reports. We cannot conceive that this right to revise, correct, and modify is lost to a District Court of Appeal because of the transfer of a cause to the Supreme Court, provided that the exercise of the right does not presume to alter, but is resorted to for the purpose of upholding, the judgment pronounced by the court.
We should perhaps say a little more as to the reasons which prompt us to the unusual but wholly proper procedure to which we resort. The petitioner in this proceeding has no particular interest in the questions presented by the petition for hearing and the brief. Indeed, if he can be said to have an interest in them at all, that interest probably lies with that of his formal opponents in the proceeding, for he himself asked the Supreme Court for a hearing, but upon grounds different from those presented by the other petition and by the brief filed in its support. Consequently, no written argument has been offered to the Supreme Court in opposition to the latter petition and to the brief. The matter is soon to come on for oral hearing before the higher tribunal, and it is greatly to be feared that the argument produced upon that occasion, and touching the important questions discussed in our main opinion, will be wholly unilateral. The able counsel who have contended for a hearing of these questions in the Supreme Court will doubtless then stand unopposed. It is these reflections which have impelled us to the preparation of this supplement. We have tried to free ourselves as completely as possible from that pride of opinion which in some degree will always be associated with literary authorship. We have endeavored to purge ourselves of all desire merely to combat the rather fervid assault which has been made upon our main opinion, to enter a plea of self-justification, to defend unduly an utterance which under ordinary circumstances would be left to shift for itself.
The situation is not an ordinary one. The questions to be discussed at the oral argument are of the utmost importance to the bench and bar of the state. We conceive the arguments advanced in the petition and brief to be unsound and dangerous. We think, no one else being appointed to the task, that we should expose, if we can, the fallacies which are advanced in opposition to our views. Our sole desire is that these important questions be decided correctly, and we dedicate this opinion to that desire.
It is said in the petition for hearing addressed to the Supreme Court by respondent Bar Association:
"The respective functions of the courts and of the Legislature are these:
"(1) An attorney does not hold an office or public trust, in the constitutional sense of that term, but is an officer of the court, exercising a privilege or franchise.
"(2) As attorneys are officials of the court, the power to admit applicants to practice law is judicial, and not legislative, and is invested in the courts only.
"(3) Notwithstanding the jurisdiction of the courts, the Legislature may, in the exercise of its police power, prescribe reasonable rules and regulations for admission to the bar, to which the courts will and must conform.
"(4) But the Legislature may not impose unreasonable rules, or deprive the courts of their inherent power to prescribe other rules and conditions of admission to practice."
Authorities are cited in support of the propositions stated in each of these paragraphs, to which we shall refer hereafter by the numbers given them by petitioner. In dealing with them we shall cover, so far as is necessary, the ground taken in the brief filed by friends of the court in aid of the petition.
As to the correctness of the propositions stated in paragraph (1) there can be no question. Paragraph (2) is also correct, but when its contents are considered in connection with the matters stated in paragraphs (3) and (4) it becomes patent that the grounds upon which the petition for hearing is based are not tenable. Paragraph (2) asserts that the power to admit applicants for admission to the bar is judicial, and is invested in the courts only. Counsel cannot mean by this statement that the mere perfunctory power to make orders admitting to the bar, and nothing more, is vested in the courts. If the Legislature may occupy the entire remaining field affecting admissions, that omnipotent body may take from the courts the power to make orders. If the courts cannot consider, weigh, deliberate, but must make such orders as the Legislature requires, the asserted power to make them is empty. It is no power. As asserted in our main opinion, the courts in making such orders would be but the agents of the Legislature, and the principal could terminate the agency, thereafter lodging it elsewhere, or itself exercising the power to make them. There must be some power in the courts beyond the mere power to make orders.
The only question is: Where is the line to be drawn? That counsel cannot intend paragraph (2) to stand with the limitation upon it which we have imagined is evident from an inspection of the single case which they cite in support of it. Ex parte Garland, 4 Wall. 333, 18 L.Ed. 366. The court there said: "[Attorneys] are officers of the court, admitted as such by its order, upon evidence of their possessing sufficient legal learning and fair private character. It has been the general practice in this country to obtain this evidence by an examination of the parties. *** The order of admission is the judgment of the court that the parties possess the requisite qualifications. *** Their admission *** is not the exercise of a mere ministerial power. It is the exercise of judicial power."
So much for paragraph (2) standing alone. Let us now proceed to consider it and paragraphs (3) and (4) together. Paragraph (3) is to the effect that, despite the jurisdiction of the courts which is mentioned in paragraph (2), the Legislature, in the exercise of the police power, may prescribe reasonable rules and regulations for admission to the bar, to which the courts must conform. This statement, we think, is erroneous. Several cases are cited in support of it, three of which are decisions of the Supreme Court of the state. The first two of these, Cohen v. Wright, 22 Cal. 293, and Ex parte Yale, 24 Cal. 241, 85 Am.Dec. 62, concede to the Legislature in the most positive terms— whether justly or unjustly it is not permitted to this court to inquire— the power to pass laws designed to prevent improper persons, traitors to the general government, from practicing law. To that doctrine the courts of California are at present committed, as we pointed out in our main opinion. The third case cited, In re Galusha, 184 Cal. 697, 195 P. 406, while quoting from Ex parte Yale, supra, decides only that a member of the legal profession may be made subject to the payment of an occupational tax provided for by a city ordinance.
It is true that there are decided cases which, in general terms, state a rule to the effect that the Legislature, under the police power, may pass reasonable laws regulating the matter of admissions to the bar. The reason for the existence of this rule has not been set down. The courts have been content to state that it is, not why or how it is. The broad question to be determined in this proceeding is whether the doctrine of Cohen v. Wright, supra, and Ex parte Yale, supra, is to be so extended as to allow to the Legislature sole and exclusive power over admissions and readmissions or reinstatements; for, while the proceeding is one for a reinstatement only, the power of the Legislature over admissions, if it enjoys such a power, necessarily must be as plenary as its power over reinstatements. This question of legislative power we endeavored to plumb to its depths in the opinion to which this is a supplement. Our endeavor was not successful, as it now appears, at least in so far as the question of the assumed rights of the Legislature under the police power are concerned. These rights are insisted upon, not only in the petition for hearing addressed to the Supreme Court, but in the brief filed in support of it.
Petitioner’s paragraph (4), quoted above, is stated in a manner which we think was not intended. We shall assume that counsel meant to say that the Legislature may not impose unreasonable rules, and that the courts, in the exercise of an inherent power, may prescribe rules and conditions to operate over a field not already occupied, or perhaps afterward to be occupied, by legislative enactment. Counsel thus assent to a rule which the courts, in a practically universal concord, have settled at least in the terms in which counsel have stated it. The rule as thus stated cannot, under the authorities, be denied. We followed in our main opinion those courts which have gone further, and which have held that this inherent power is exclusive, although those cases make the exception that the Legislature may pass laws denying admission to the bar, or the right to continue in practice, to unworthy persons. It appears to us that in stating the contents of paragraph (4) counsel have conceded the ground we then took and to which we now adhere. We shall here attempt to show that the inherent power of the courts over admissions is derived from the Constitution, and is for that reason exclusive of the power of the Legislature, under the police power and in the thin disguise of "regulation," to invade the field. "A power [in a court] which the Legislature does not give, it cannot take away. If power, distinguished from jurisdiction, exists independently of legislation, it will continue to exist notwithstanding legislation." Hale v. State, 55 Ohio St. 210, 45 N.E. 199, 36 L.R.A. 254, 60 Am.St.Rep. 691. The court, in employing the phrase "distinguished from jurisdiction," apparently had in mind that jurisdiction, strictly so termed, was conferred by the Legislature.
We understand, both from the petition for hearing and from the accompanying brief, that the functions here claimed for the Legislature under the police power are regulatory only. Moreover, it seems that it is conceded in both documents that the power is to "regulate" the performance of a constitutional duty imposed upon the courts; and we call this a concession, for the reason that, if the attitude of counsel is correctly appraised by us, the whole ground upon which they attempt to stand is cut from under them by a process of erosion of which they are the creators. If, however, the concession is not made that the ordering by courts of rules governing admissions is the exercise of a constitutional power, then we are brought to the necessity of determining whether the making of those rules is the exercise of such a power.
Counsel for petitioner says, in effect, that the courts, in the discharge of an inherent function which they characterize as judicial, may adopt a full code of rules concerning admissions; the Legislature not having occupied the field. This power, called judicial, must be constitutional, for it exists because of those parts of the organic law which provide for the three departments of government and which erect the courts of the state as the instrumentalities through which the judicial branch is to operate. If the power does not come from the Constitution, where does it originate? It will not do to say that it is not constitutional, because it is inherent. What powers are inherent in courts find their residence in these forums because they are courts, of course; but it is obvious that they can possess no inherent powers prior to their existence, and they owe their existence to the Constitution. Their inherent powers are therefore derived from that paper. It is well known that the doctrine of implied powers applies to the judicial department. "Courts possess implied and resulting powers from general grants of jurisdiction." McNealy v. Gregory, 13 Fla. 417, 435. "Jurisdiction may be conferred upon a court by necessary implication as effectually as by express terms." Spence v. Fenchler, 107 Tex. 443, 457, 180 S.W. 597, 601. "It is well settled that courts of general jurisdiction possess inherent powers not created or conferred by legislative enactment." Hitt v. Carr, 77 Ind.App. 488, 501, 130 N.E. 1, 6. "A court has the inherent right to function and to function efficiently." People v. Brown, 238 Mich. 298, 212 N.W. 968.
It seems plain that the power in courts to provide for a bar is a resultant from the general provisions of the Constitution to which we have referred. The organic law makes no provision for a bar, and yet lawyers are indispensable to the discharge of the judicial function. They are officers of the courts. They are, in a body, an integral factor of the judicial department. It is therefore just to perceive in the constitutional provisions relating to the department a power in the courts, which stand at the head of the department, to provide for a bar. At any rate, the power certainly exists, and it is difficult to ascribe to it any other origin. In truth, it seems that it can possibly have no other origin.
It is perhaps not strange that counsel should contend that the Legislature, by means of the police power, may occupy this field of constitutional judicial power and totally exclude the courts from it, for some of the courts themselves have reached the same degrading conclusion, albeit without an examination of the principles involved in the question. The brief filed in support of the petition for hearing contains, however, statements which do violence to the attitude which counsel assume. It is said, for instance: "The Legislature has no power to prescribe regulations which substantially impair the discharge by a co-ordinate department of the government of the latter’s constitutional functions." At another place: "Numerous as are the decisions holding that the Legislature may not, under the guise of regulation, substantially impair the discharge by a co-ordinate department of its constitutional functions, much more numerous are the decisions holding that the power of regulation still remains with the Legislature, and it is only if the regulations are unreasonable, either in the way of substantially impairing the discharge by a co-ordinate department of its functions or in some other way, that the regulations are invalid."
The idea that the courts may frame rules governing admissions to the bar is utterly inconsistent with the idea that the Legislature, under any circumstances, may do the same thing. It is futile to assert that the Legislature, under the police power, may make such rules either to fill a void left by a failure of the courts to make them or to supplant rules which the courts have made. Let us suppose an illustration which will serve further to develop this point. Let us imagine two states of the Union, which we will call state A and state B. We will suppose that the Supreme Court of state A adopts a complete code of rules governing admissions to the bar. The Legislature of state B passes a bill attempting to put into effect a set of rules in the exact language of those adopted by the court in state A. Can it possibly be said that the rules for state A were adopted in the exercise of a constitutional judicial function, while those framed for state B spring from an exercise of the police power? It cannot. The action of the Legislature of state B was not an attempt to regulate the constitutional functions of the judicial branch of the state government. It was neither more nor less than an attempt to exercise those functions themselves. The action was a usurpation of power, a plain invasion of the rights of one of the co-ordinate branches of government by one of the others, however benevolent the invasion was intended to be. It was, to employ the language above quoted from the brief filed in support of the petition, a clear violation of the principle that "the Legislature may not, under the guise of regulation, substantially impair the discharge by a co-ordinate department of its constitutional functions."
The national Constitution (article 2, § 2) provides that the President shall appoint the principal officers of the executive branch of the government "by and with the *** consent of the Senate." Despite the concurrence allowed the upper house of Congress by this provision, the practice, since the government began to function in 1789, based upon an extended debate in Congress, has been to allow the Chief Executive the sole power of removal of those officers. It has never been questioned that the power of removal would rest in the President, if appointments were not required by the Constitution to be concurred in by the Senate. Before the new government was installed, this question had been presented to the people of the states in the Federalist. The power of removal was there said to be vested in the President and Senate together, but solely on the ground that both participated in appointments. The paper in which the discussion is contained (No. 77) was written by Alexander Hamilton and these are its opening sentences: "It has been mentioned as one of the advantages to be expected from the co-operation of the Senate in the business of appointments that it would contribute to the stability of the administration. The consent of that body would be necessary to displace as well as to appoint."
This view was departed from at the first session of the First Congress. The House of Representatives had under consideration a proposal for the creation of a Department of Foreign Affairs, and during the debate Smith, of South Carolina, advanced the view, a little different from that of Hamilton, that the head of such a department could be removed only by impeachment. 5 Writings of James Madison, 361, note. Madison, who had been a collaborator with Hamilton in the preparation of the Federalist, took issue with Smith, and during the course of the debate said: "I think it absolutely necessary that the President should have the power of removing from office; it will make him, in a peculiar manner, responsible for their conduct, and subject him to impeachment himself, if he suffers them to perpetrate with impunity high crimes or misdemeanors against the United States, or neglects to superintend their conduct, so as to check their excesses. On the constitutionality of the declaration I have no manner of doubt." Id. 362. In the same speech Madison remarked further:
"It is said that it comports with the nature of things, that those who appoint should have the power of removal; but I cannot conceive that this sentiment is warranted by the Constitution; I believe it would be found very inconvenient in practice. It is one of the most prominent features of the Constitution, a principle that pervades the whole system, that there should be the highest possible degree of responsibility in all the executive officers thereof; anything, therefore, which tends to lessen this responsibility, is contrary to its spirit and intention, and, unless it is saddled upon us expressly by the letter of that work, I shall oppose the admission of it into any act of the Legislature. Now, if the heads of the executive departments are subjected to removal by the President alone, we have in him security for the good behavior of the officer. If he does not conform to the judgment of the President in doing the executive duties of his office, he can be displaced. This makes him responsible to the great executive power, and makes the President responsible to the public for the conduct of the person he has nominated and appointed to aid him in the administration of his department. But if the President shall join in a collusion with this officer, and continue a bad man in office, the case of impeachment will reach the culprit, and drag him forth to punishment. But if you take the other construction, and say he shall not be displaced, but by and with the advice and consent of the Senate, the President is no longer answerable for the conduct of the officer; all will depend upon the Senate. You here destroy a real responsibility, without obtaining even the shadow; for no gentleman will pretend to say the responsibility of the Senate can be of such a nature as to afford substantial security. But why, it may be asked, was the Senate joined with the President in appointing to office, if they have no responsibility? I answer, merely for the sake of advising, being supposed, from their nature, better acquainted with the character of the candidates than an individual; yet even here the President is held to the responsibility— he nominates, and, with their consent, appoints. No person can be forced upon him as an assistant by any other branch of the government." Id. 363.
A few days later Madison said again: "It is evidently the intention of the Constitution that the first magistrate should be responsible for the executive department; so far, therefore, as we do not make the officers who are to aid him in the duties of that department responsible to him, he is not responsible to his country. Again, is there no danger that an officer, when he is appointed by the concurrence of the Senate, and his friends in that body, may choose rather to risk his establishment on the favor of that branch, than rest it upon the discharge of his duties to the satisfaction of the executive branch, which is constitutionally authorized to inspect and control his conduct? And if it should happen that the officers connect themselves with the Senate, they may mutually support each other, and for want of efficacy reduce the power of the President to a mere vapor; in which case his responsibility would be annihilated, and the expectation of it unjust. The high executive officers, joined in cabal with the Senate, would lay the foundation of discord, and end in an assumption of the executive power, only to be removed by a revolution in the government. I believe no principle is more clearly laid down in the Constitution than that of responsibility." Id. 392.
Upon this same occasion Madison said further: "The Constitution affirms that the executive power shall be vested in the President. Are there exceptions to this proposition? Yes; there are. The Constitution says that, in appointing to office, the Senate shall be associated with the President, unless in the case of inferior officers, when the law shall otherwise direct. Have we a right to extend this exception? I believe not. If the Constitution has invested all executive power in the President, I venture to assert that the Legislature has no right to diminish or modify his executive authority. The question now resolves itself into this, Is the power of displacing an executive power? I conceive that if any power whatsoever is in its nature executive, it is the power of appointing, overseeing, and controlling those who execute the laws. If the Constitution had not qualified the power of the President in appointing to office, by associating the Senate with him in that business, would it not be clear that he would have the right, by virtue of his executive power, to make such appointment? Should we be authorized, in defiance of that clause in the Constitution, ‘The executive power shall be vested in a President,’ to unite the Senate with the President in the appointment to office? I conceive not. If it is admitted that we should not be authorized to do this, I think it may be disputed whether we have a right to associate them in removing persons from office, the one power being as much of an executive nature as the other; and the first only is authorized by being excepted out of the general rule established by the Constitution, in these words, ‘The executive power shall be vested in the President.’ " Id. 394.
In 1850, Senator Bradbury, of Maine, offered a resolution calling upon the President to furnish to the Senate certain information relating to removals from office which he had enforced. Daniel Webster opposed the resolution, on the ground that such matters were of no concern to the Senate. He thus addressed himself to the theory that the power of removal rested solely in the President: "I have looked recently, though not for the first time, into the debates which took place in Congress when that construction of the Constitution was fixed at its first session. You know, sir, that the Senate of the United States, at that time and for several years afterwards, sat with closed doors. There were no debates of the Senate published up to the year 1794, I think. But this question was debated in the House of Representatives at great length. The speeches made there were reported and published. The idea that the President possessed a removing power, without the consent of the Senate, seems to have been chiefly supported by a very able speech from Mr. Madison, whose opinions, as one engaged in framing the Constitution, upon constitutional subjects, were regarded, and have ever been regarded, as very high authority. His judgment appears to have prevailed with the House of Representatives on that occasion. I have understood that the vote affirming that power in the President passed the Senate by the casting vote of the then Vice President, Mr. Adams." 14 Writings and Speeches of Daniel Webster, 360.
During the same speech Webster said, again: "But, sir, since the practice has become a settled practice, since every administration has indulged in it, and since it must now be considered, as the legal construction of the Constitution, that it is one of the powers of the President to remove incumbents from offices which they hold, it follows, as a necessary and as an inevitable consequence, that this power, thus legally vested in the President, must be exercised by him as independently of our control as any other power that is to be exercised by him under the Constitution. If he holds the power, he holds it to be exercised at his own control and discretion. And I see no ground upon which we can call upon him to give us reasons for the manner in which he exercises that power, any more than we can call upon him to give reasons for the manner in which he exercises any other power under the Constitution; or, on the other hand, that we have no more right to call upon him to account to us for the manner in which he exercises a power solely confided to him, than he has to call upon us to give him reasons for the manner in which we exercise a power solely confided to our hands. And I think, therefore, it would be against what is the settled construction of the Constitution, and the practice of the government, for us to make any such requirement of the President." Id. 361.
And later in the speech Webster employed this very striking language concerning the inviolability of the powers of each of the three departments of government: "The powers of the departments are not all mixed up in a jumble. They are separate, and are made separate by the Constitution, and have hitherto been kept separate by the practice of the government. I hope they will continue to be kept separate, for then there is a just responsibility. If every department acts within its own power, it takes the responsibility belonging to its power. But if the powers of two or more departments are mixed up irregularly and jumbled together, there is no just responsibility upon anybody. Every consideration therefore of propriety, as well as the written text of the Constitution, requires that the powers assigned to one department of the government shall not be interfered with or intermeddled with by another." Id. 362.
Notwithstanding the long-settled practice concerning removals from office and the excellent reasons for it, the Congress willfully violated the established construction of the Constitution during the administration of President Andrew Johnson. The national Legislature passed what is known to history as the Tenure of Office Bill (14 Stat. 430), as a part of the frenzied struggle between it and the President over the question of reconstruction. The act contained the following provisions: "That every person holding any civil office to which he has been appointed by and with the advice and consent of the Senate, and every person who shall hereafter be appointed to any such office, and shall become duly qualified to act therein, is and shall be entitled to hold such office until a successor shall have been *** appointed" by the President, with the advice and consent of the Senate, and duly qualified; and "that the Secretaries of State, of the Treasury, of War, of the Navy, and of the Interior, the Postmaster General, and the Attorney General shall hold their offices respectively for and during the term of the President by whom they may have been appointed and for one month thereafter, subject to removal by and with the advice and consent of the Senate." 6 Messages and Papers of the Presidents, 492.
The measure went to the President, but was promptly returned without his approval. The veto message which accompanied it was with little doubt prepared by the masterly hand of William H. Seward (2 Bancroft, Life of Seward, 465), who was then Secretary of State, and contained a convincing argument against the constitutionality of the bill (6 Messages, 492), based, however, upon the construction which had been placed upon the organic law by the First Congress and upon the acquiescence in it during a period of more than three-quarters of a century. The bill was passed over the veto, the President a little later removed Edwin M. Stanton as Secretary of War without the consent of the Senate, articles of impeachment were presented against him, he was tried by the Senate and was acquitted by only a narrow vote. The question of the constitutionality of the Tenure of Office Bill was never presented to the courts, nor was the general question upon which it trenched. 1 Kent, Comm. p. 310.
It cannot be denied that some reason operates against the construction placed upon the President’s power of removal by the First Congress, but the fact that such a construction could be reached, in the face of the constitutional provision allowing the Senate to participate in appointments made by the President, is significant in a consideration of the present proceeding. The President’s appointees are subordinate officers of the executive department, and he is responsible for their acts (1 Kent, Comm. p. 310), as Madison points out, and the First Congress saw in this circumstance, as we must see in reason, that it was imperative that he exercise control over them in all respects except the mere matter of their appointments. This latter power he could not exercise because of the direct mandate of the Constitution. Kent, joining with Madison, says at the place above cited that "the participation in that authority by the Senate was an exception to a general principle and ought to be taken strictly." This general principle is, of course, that each of the three departments of government should control the appointment, as well as the discipline and removal of its officers. A reading of Madison’s remarks will demonstrate that the construction of the Constitution by the First Congress was based upon this principle and upon the view that the concurrence of the Senate in appointments was an exception to it. There can be no doubt, to our minds, that the principle applies as well to the judicial department as to the executive department.
The various speeches above quoted show the dangers incident to an attempt to divide the indivisible powers of a department of government. Webster, particularly, covers this special question. It is to be observed, too, how Madison, as well as Webster, dwells upon the question of responsibility as fixed in each of the departments by the Constitution. This point is of great moment here. Where is responsibility to be located if the Legislature, from time to time and in a greater or lesser degree, as its uncontrolled inclination may dictate, makes provision for admissions to the bar, leaving the courts to occupy so much of the field as it chooses not to cover?
At several places in our main opinion we characterized the contention of respondent Bar Association as an attempt to dismember an indivisible power, and we said particularly: "All these matters— admissions, discipline, disbarments— are either wholly under legislative control or they are wholly under judicial control." The deeper the subject is probed, the more clearly does the justice of this conclusion become certain; and, as we said in our main opinion, the answer is that the power is judicial. If the courts exercise a constitutional function in making provision for a bar, how can the Legislature divest the power through the exercise of an assumed police power? It is too clear for words that the Legislature cannot, under the feeble guise of regulation, destroy a constitutional function of either of the other departments of government. If it could, one of the salient tenets of governmental science is scrapped. The time-honored principle that all government is naturally divided into three branches, the executive, the legislative, and the judicial, perceived by at least as early a thinker as Aristotle, and presented to the fathers of the national Constitution in the forceful phrase of Montesquieu, is relegated to the depths of the despotisms from which it was unearthed, and government itself becomes a reproach.
"When the legislative and executive powers are united in the same person, or the same body of magistrates, there can be no liberty, because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner. Again, there is no liberty of the judiciary power if it be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be the legislator. Were it joined to the executive power, the judge might behave with violence and oppression. There would be an end of everything were the same man, or the same body, whether of nobles or of the people, to exercise these three powers— that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals." Montesquieu, Esprit des Lois, book 2, c. 6.
We perceive no such dire consequences to result from the present proceeding; but, if the views expressed in the petition for hearing and in the brief were to prevail, we are on the broad highway to serious results. It can make no difference here if the courts of the land, in neglectful submission to the legislative will, imposed without sinister intent, as it has been in the various states, have heretofore slept upon a question important to the general welfare. It is well that in this state an opportunity has been given to stem the tide, which, if it is not curbed, will widen the breaches it has already made in the levees which protect the sacred domain of government.
The writers of the brief which accompanies the petition for hearing in the Supreme Court, in developing the theory that the Legislature, by means of the police power, may "regulate" the matter of admissions to the bar, point to the fact that the law-making bodies of the land have long been accustomed to "regulate" judicial procedure throughout the Union. It is quite pertinent to observe that such matters, either in whole or in part, were formerly in the control of the courts. We have no inclination to go deeply into this question, but we shall briefly notice the auspices under which were developed the principles of the law of evidence, touching only that particular item in the realm of court procedure. The rules of evidence were created, improved, and have reached their present state of excellence through an age-long devotion of the courts to the subject. This point is too well understood to require a lengthy exposition, but it is dealt with in a most instructive historical note in Jones’ Blackstone, commencing at page 1969. It appears from this note, not only that the law of evidence was the outgrowth of the successive opinions of the courts, but that the subject was sometimes covered by rules of court. It was also thoroughly explored and elucidated by another factor of the judicial department, in the numerous text-books on evidence, prepared by members of the bar. And yet our Code of Civil Procedure contains what is assumed to be a complete statement of the rules of evidence. Thus the law upon this important subject passed, apparently, into the hands of the Legislatures of the various states, and the same situation applies to other branches of procedure.
If we return again to the general question of court procedure, laying aside the special matter of evidence, it is not to be forgotten that one of the forward-looking movements of the day is toward the ultimate regulation of procedure by rule of court. The judicial department is endeavoring again to come into its own. As an evidence of this movement, on the day on which these lines are written, a newspaper is laid upon our desks which acquaints us with the intelligence that, at the session of the Legislature which is to convene next month, the Judicial Council will endeavor to procure the introduction of a bill authorizing that body to adopt rules of court regulating judicial procedure, with a view to nullifying, by that means, the major portion of the Code of Civil Procedure and large parts of the Penal Code. We do not, of course, take this newspaper report as authoritative, but present it as indicating that the movement to which we have referred is afoot, and as illustrating what may happen under it.
If the courts, by a relaxation of that vigilance which is the price of liberty, have abdicated their dominance over the regulation of court procedure, there is no reason why they should relinquish the control which constitutionally they may exercise over their own officers. Upon that question the sentry is so far awake, and it would be deplorable if he should surrender to the joy of slumbering upon his beat.
I concur in everything that is said in the opinions of my associates which follow.
CRAIG, J.
I concur in the opinions of Presiding Justice WORKS and Justice THOMPSON. The question is vital, and its decision must be far-reaching. The right of the legislative branch of the government to invade the province of the judicial, whose authority in its own sphere the Constitution makes absolute, is in question. That such invasions of this realm in the past have not been disputed cannot bar the assertion of the authority of the judiciary over a matter clearly and solely within its power. It is quite probable that certain courts have been reticent to refuse recognition of statutes whose provisions were beneficent, even though it appeared that such acts were in reality beyond the power of the Legislature to enact. It is quite possible that this reticence has been partly due to reluctance to create friction with a sister branch of government, as well as a natural modesty on the part of the judiciary to assert its own authority in conflict with that of the Legislature.
But the question is one to be decided impersonally. The preservation of the complete separation of the functions of the legislative, judicial, and executive branches of government is too fundamental to the maintenance of the American democracy to allow its slightest infringement. It is, I think, worthy of serious consideration that the federal Constitution itself guarantees this form of government in each state, and to that end it is essential that such government shall have these functions independently and separately maintained. To my mind, even the public rights presumably protected by the exercise of the police power of the state might better suffer than have this governmental principle ignored, and a beginning made toward the ultimate complete subjugation of the judicial branch of government to the legislative. The maintenance of an independent judiciary is not merely a privilege permitted that department of the government; it is its imperative duty, perhaps the first and most important one, to guard that independence.
I believe that the courts have the power by rule to regulate the entire subject of admission of attorneys to the bar, their discipline, and disbarment. This necessarily follows from the fact that the entire subject is admittedly incidental to the judiciary, and that the courts have entire supervision of such matters as a constitutional right which follows as incontrovertibly as does the right of the Legislature to enact laws from the mere creation of such a body by the Constitution.
Our courts have been slow, perhaps neglectful, in the exercise of their authority in this behalf. Their failure to act may even have invited the Legislature to take action amounting to an attempt to take over the performance of this judicial duty, but this fact, if it be one, cannot affect in the slightest degree the constitutional apportionment of the separate governmental functions. Nor is the duty of the courts to safeguard their independence any less clear and imperative because such action if taken now would be belated and perhaps might result in the criticism of certain former decisions not altogether well or fully considered.
I have said that the whole subject of the practice of the law by the legal profession is an incident to the judicial department of government. Not only is this true, but the services rendered by the members of the bar are essential to the successful functioning of courts of justice. Several instances are recorded in history where it has been attempted to abolish the legal profession, and to conduct courts without their aid; in every such case utter failure has resulted. In France the bar was formally abolished, but in a short time as a matter of necessity it was reinstated, and resumed its place in the governmental machinery.
The courts should be free, and I believe that they are at liberty, regardless of any edict which the Legislature may enact, to receive such aid in the production of evidence and a proper consideration and presentation of the law as the exigencies of any litigation may demand. To subserve the ends of justice, it might be well that in some case the services of a member of the legal profession might not be available. The assistance of a layman, or of some one learned in the law, though not formally admitted in this jurisdiction, might be invaluable to the court. To my mind, any law attempting to limit such power would be void, as an attempted abridgment of the judicial powers inherent in the courts by reason of the fact that they are courts of justice.
In a number of the decisions which have approved the doctrine that statutory regulations of the practice of the law must be upheld by the courts, it has been reasoned that the power of the legislation in that regard is similar to that admittedly possessed to legislate concerning various trades and professions. Such observations are not in point. They overlook the fact that the practice of medicine or dentistry, or of the trade of a barber, are in no way incident to the maintenance or functioning of the government. The practice of the law is more than a commercial pursuit. The rights of those who are permitted to practice law are secondary. The right of the public in the makeup of the personnel of the bar and its interest in their rectitude is primary. Superficially it might appear that therefore the matter is one for police regulation, but it must be remembered that the interests of the public may be safeguarded perhaps better through other channels than through the police power in the hands of the Legislature. It is worthy of reflection that the absolute authority of the courts over their own procedure and in their own jurisdiction is at least as potential in the protection of public interest as the police power lodged in the Legislature.
At all events, and beyond the possibility of cavil, the police power exercised by the Legislature is inferior to the Constitution and its provisions, and where, as in this instance, the Constitution allocates judicial prerogatives to the judicial department alone, such authority cannot possibly be lodged in the Legislature under the guise of police power.
THOMPSON, J.
I concur in all that has been said by Presiding Justice WORKS and Justice CRAIG. In view, however, of the extreme importance of the case to the cause of an independent judicial system and its protection against the gradual, although well-intended, encroachment of the Legislature, it seems meet that an effort be made, although the hope is probably vain, to add somewhat to the force of what has already been said. Counsel seem to fear that the state bar is in danger of not being permitted "to function properly and bring about the great good in the administration of justice which is confidently expected of it by the people of the state." (Italics ours.) What is the basis of this fear? They say it springs from the conclusion, reached in the former opinion, that admissions, discipline, and disbarments are wholly under judicial control. Is this a confession that the Legislature is the better able to judge of the qualifications, or misfeasance, or regeneration, of those who are to assist in administering justice, or to judge the conditions upon which it is proper to permit persons to aid the courts in dispensing justice, than is the judiciary itself? Since when has the judiciary become so impotent to judge the qualifications of its officers? What has recently occurred to qualify laymen, a majority of whom probably compose the Legislature, to correctly judge of the duties and responsibilities of members of our ancient and honorable profession?— something that was not conceded yesterday. Can it be possible that the present fear is akin to the desire manifested by some in the past few years for a recall of judicial decisions?
The questions are not beside the point. They are asked for the purpose of conveying to the mind a twofold idea: First, that the judicial system is composed, not only of courts, consisting of judges, clerks, and bailiffs, but also of each and every member of the bar, constituting the other officers of the courts, who are named and designated by them as worthy and able to assist, as counsel say, "in the administration of justice"; second, that the process of determining the qualifications of those and the conditions upon which they shall be admitted to practice, of passing upon the nature of unethical conduct which shall subject them to discipline, or the regeneration of character which warrants readmission is wholly and exclusively a judicial function. Every act performed requires a thorough understanding and appreciation of that branch of legal learning, knowledge of which, according to the court in Danforth v. Egan, 23 S.D. 43, 119 N.W. 1021, 139 Am.St.Rep. 1030, 20 Ann.Cas. 418, "has long been recognized as the most important qualification for one who is to be entrusted with the sacred duties of an attorney at law" and which is known to the profession as legal ethics. If it be said to this that the Legislature has the power to confer this judicial authority upon the state bar, the answer immediately suggests itself that the people have already vested their entire judicial power, through the Constitution, in courts already established.
Let us view the matter from another standpoint. What is the purpose of requiring legal learning and good moral character as prerequisites to admission and their retention after admission as conditions to continued membership in the profession? In re Percy, 36 N.Y. 651. If the applicant fails to measure up to the standards of the time, in legal learning, instead of being an aid to the court and one of those indispensable cogs in the machinery, he is a hindrance and an obstruction to the administration of justice. If he fails to attain and preserve that high degree of moral character demanded of an attorney, he is no longer entitled to the confidence of the court, and the latter can repose no trust in his statements or activities. In short, "he is no longer an aid to the court." Fairfield County Bar v. Taylor, 60 Conn. 17, 22 A. 443, 13 L.R.A. 767. From this it follows, as the authorities have repeatedly announced, that the paramount duty of every lawyer is to assist the courts in the administration of justice.
The people, by their form of government and through the Constitution, have designated the courts as the instrumentalities through which justice shall be dispensed. The necessities of the situation have called to their assistance those possessed of the requisite ability and character. But the fact remains that the courts are primarily and solely responsible to the people for administering justice and for that reason have always exercised a supervisory and disciplinary power over their officers. If the vigilance has sometimes been relaxed, it is because the bench has been inclined to place great confidence and trust in the profession. That is no reason, however, why they should now shirk the responsibility placed upon their shoulders by the Constitution, nor is it a reason why any member of the bar should renounce his position as an officer of the courts and rise to protest against that supervision. Conceivably, we might have a somewhat different situation to deal with, if we had a branch of the profession which did not and was not permitted to appear before the courts, such, for instance, as the solicitors of England, the example of which probably gave birth to the provisions now involved. But we have no such branch, and no such problem to consider.
It is said by counsel that, though the enactment which purports to confer upon the state bar certain jurisdiction over the admission, discipline, and disbarment of lawyers is by the former opinion held to be stillborn, yet the opinion says the courts may treat those provisions as still existing, even in defiance of a possible legislative repeal. And they express astonishment at this result. Suppose a newspaper editor had suggested the identical provisions in question, or a member of our profession, and suppose the courts had been forcibly impressed with the merits of the proposed system and had put it into effect by rules adopted for that purpose; certainly no objection could be entertained provided always that it be considered that the courts have the authority to adopt such rules to regulate their judicial business. Nor would any one be astonished if they refused to set aside the rules if the original author should change his mind. And in such light must the various enactments of the Legislature be read which have been recognized from time to time by the courts as reasonable. They have been suggestions emanating from a co-ordinate branch of the government, entitled to consideration only because they did come from such a source, and not by reason of any authority to impose their legislative will respecting a judicial function upon the judiciary. Undoubtedly, if the courts had not thought the suggestions reasonable, as is indicated by all the authorities, the suggestions would have been ignored as of no force or vitality. The problem here presented is simple. It becomes confused only when it is proposed to split up the judicial duty, conceding a part to the judiciary and giving the rest to the Legislature. It becomes impossible of solution when an effort is made to divide an indivisible quantity. It becomes alarming when it is made manifest that under the stress of the modern practice of the law sight is lost of the position and first duty of a lawyer as an officer and aid of the court.
It is argued, in an effort to sustain the contention that the judicial functions may be divided, that the Legislature has authority by reason of the police power. There is a modern tendency to use this expression as a "catch-all." In addition to what has been said by Presiding Justice WORKS, however, upon the subject, I should like to call attention to an instance where, if the power may be invoked at all, there can be no question of its proper application. In fact, the Legislature has spoken upon the subject in subdivision 5 of section 282 of the Code of Civil Procedure, which reads that it is the duty of an attorney "to maintain inviolate the confidence, and at every peril to himself, to preserve the secrets of his client."
It has been argued with great force by an eminent member of the profession that counsel should be compelled to disclose all facts communicated to them in secret which might require a verdict of guilty to be returned; this on the theory that the guilty should not be allowed to escape. See Rationale of Judicial Evidence by Jeremy Bentham (Bentham’s Works, John Bowring’s Ed., vol. 7, p. 473); excerpt also found in Costigan’s Cases on Legal Ethics, p. 82. As a footnote to the excerpt in Costigan’s Cases just mentioned, and on page 84, we read the answer of Chief Justice Taft as follows: "I have recently heard an arraignment of our present judicial system in the trial of causes by a prominent, able and experienced member of the Boston bar. *** He feels that the procedure now in vogue authorizes and in fact requires counsel to withhold facts from the court which would help the cause of justice, if they were brought out by his own statement. To remedy this he suggests that all counsel should be compelled to disclose any facts communicated to them by their clients. *** To require counsel to disclose the confidential communications of his client to the very court and jury which are to pass on the issue which he is making would end forever the possibility of any useful relation between lawyer and client. It is essential for the proper presentation of the client’s cause that he should be able to talk freely with his counsel without fear of disclosure." (Italics ours.)
Here is a debatable question of public policy and public welfare. If it be a debatable question, and the Legislature has the right to speak by reason of its possession of police power, and does so speak, then it is the duty of the court to sustain the enactment as a proper exercise of that power. Suppose the Legislature should say, in the place of the subdivision which we have already quoted, that it is the duty of lawyers to communicate to the court and jury all that has been conveyed to them by their clients, thereby destroying the useful relation of attorney and client, and forever putting an end to that beneficent repository of the troubles and tribulations of the layman, and which operates as the cleansing receptacle to divide the chaff from the wheat for the machinery of justice, would the courts be powerless? Must they sit idly by and see the profession deprived of their usefulness, and they themselves deprived of the services of their officers, because the Legislature in the exercise of the "police power" has so decreed? We think it too apparent for argument that the courts are to determine the duty of their officers and the standards of conduct by which their usefulness to the courts and the cause of justice shall be preserved.