dissenting:
The applicants hold diplomas from law schools, which are produced in open court, together with certificates of good moral character, and a motion is entered by an attorney of this court to admit them to practice.
Prior to November 4, 1897, under rule 47 of this court, then in force, the holder of a diploma from a recognized law school of this State was admitted to the bar on producing a certificate of g'ood moral character and presenting such diploma. On November 4, 1897, this court adopted new rules of practice, and by section 39 thereof this court appointed a State Board of Law Examiners, whose duties were defined and the subjects in which applicants for admission to the bar should be examined were prescribed. The rule also required satisfactory proof of preliminary general education, and that the applicant should furnish evidence that he had pursued a course of law studies for three years in a law school or office, and all applicants, other than the bearers of foreign licenses, were required to be examined by said board, and on its certificate of qualification admission to the bar and the issuance of a license were authorized. The petition of the applicants in this case shows that they had begun the study of the law under the rules in force prior to November 4, 1897, and expected to be admitted on compliance therewith. The rules adopted November 4, 1897, went into effect immediately on their adoption. By an act approved February 21, 1899, entitled “An act to amend section 1 of an act entitled ‘An act to revise the law in relation to attorneys and counselors, ’ approved March 28,1874, in force July 1, 1874,” it was provided as follows:
“Section 1. Be it enacted by the People of the State of Illinois, represented in the General Assembly: That section 1 of au act entitled ‘An act to revise the law in relation to attorneys and counselors, ’ approved March 28, 1874, and in force July 1, 1874, be amended so as to read as follows:
“ ‘Sec. 1. Be it enacted by the People of the State of Illinois, represented in the General Assembly: That no person shall be permitted to practice as an attorney or counselor at law, or to commence, conduct or defend any action, suit or plaint in which he is not a party concerned, in any court of record within this State, either by using or subscribing his own name or the name of any other person, without having previously obtained a license for that purpose from some two of the justices of the Supreme Court, which license shall constitute the person receiving the same an attorney and counselor at law, and shall authorize him to appear in all the courts within this State and there to practice as an attorney.and counselor at law, according to the laws and customs thereof, for and during his good behavior in said practice, and to demand and receive fees for any services which he may render as an attorney and counselor at law in this State. No person shall be refused a license under this act on account of sex, and every applicant for a license who shall comply with the rules of the Supreme Court in regard to admission to the bar in force at the time such applicant commenced the study of law, either in a law office or at a law school or college, shall be granted a license under this act, notwithstanding any subsequent changes in said rules: Provided, that to date of the 31st day of December, A. D. 1899, a diploma regularly issued by any law school regularly organized under the laws of this State, whose regular course of law studies is two years and requiring an actual attendance by the student of at least thirty-six weeks in each of such years, shall be received by the Supreme Court of this State, and a license of admittance to the bar shall thereupon be granted by the said court to the holder of such diploma; but every application for admission to the bar made on behalf of any person to whom any diploma, as aforesaid, has been awarded, must be made in term time, by motion of some attorney of the said court, supported by the usual proofs of good moral character, and the production in the said court of such diploma, or satisfactorily accounting by the applicant for its non-production; and in all cases when the diploma on which the application is based does not recite all the facts requisite to its reception, all such omitted facts must be shown by the affidavit of the applicant, or some officer of the law school, or by both.’
“Whereas an emergency exists, therefore this act shall take effect and be in force from and after its passage.”
Under this act the applicants present their applications for admission to the bar, and objection is made by members of the bar who appear in behalf of bar associations- and as amici curice, who urge that the act is unconstitutional; that as an attorney is an officer of the court his admission is an act of quasi public character, to which any person may object; that the admission of an attorney is a judicial act and a part of the judicial power; that the legislature cannot constitutionally impair the judicial power, and the act of February 21,1899, is an assumption of such power and is special legislation denying the equal protection of the law, and hence not binding on the court.
The legislation of this State with reference to the admission of attorneys is by the act of February 10,1819, which was substantially re-enacted in 1833 and is to the same effect as that found in the Revised Statutes of 1815 and 1871. By that legislation a person is prohibited from practicing" as an attorney in any court of record without having obtained a license from some two of the justices of the Supreme Court, and such license shall constitute him an attorney at law and authorize him to appear in all courts of record in Illinois to practice as an attorney for and during his good behavior. The statute authorizes the justices of the Supreme Court to strike the attorney’s name from the roll for malconduct in office, and gives to the Supreme Court and circuit courts power to punish, in a summary way, any attorney who may be guilty of contempt. By this legislation no court but the Supreme Court could license an attorney nor could any other court disbar him. The power to license being withheld from the circuit court, which is a court of general jurisdiction, it cannot be said that the power to license is a purely judicial act.
The power conferred upon the Supreme Court to license, by the legislature, which assumed control over the whole subject of admissions to and dismissals from the bar, has been recognized and acted upon by this court from the earliest legislation on this subject in this State, and has been treated as the source of this court’s power to act with reference to these subjects. In- the case of Robb v. Smith, 3 Scam. 46, a motion was made by the appellant to dismiss the suit because the papers were not signed by the plaintiff himself or any attorney of the court, as required by section 1 of the acts of 1819 and 1833. This case came up in 1841, and it was held with reference to this motion: “This is a point upon which we have but little authority, and we need little other than the letter and spirit of these provisions. * * * While those salutary provisions remain upon the statute books, not as a restriction upon the citizen or suitor, but for his protection against the mistakes, the ignorance and unskillfulness of pretenders, we cannot allow an action to be commenced or prosecuted by an ‘agent’ who, as such, is expressly inhibited the privilege and denied the power. * * * This act was passed, we believe, in a spirit of liberality toward suitors, and for their protection against the practices of those who might seduce their confidence and induce them to trust the latter in the management of important interests, when suitors could not possibly ascertain the skill and qualifications of those in whom they confided, or their acquaintance with the most intricate, difficult and important of human sciences. The statute has further provided that, for malpractices, etc., the Supreme Court may strike the name of an attorney from the roll. Should he be enabled, under the character of agent, to resume the practice, the intent of the law would be defeated and all its provisions rendered null and void.” By this opinion the power of the legislature with reference to the subject is recognized, and the principle on which its recognition is based is, that it is the exercise of the police power for the protection against mistakes, ignorance and unskillfulness by suitors, who cannot possibly inquire into the skill and qualifications, with reference to an intricate difficulty and important question of science, of those who alone may go into courts as their representatives.
The court discussed again the question of admission to the bar under the statutes of the State in the case of In re Bradwell, 55 Ill. 535. In that case it was said (p. 537): “He is an officer of the court, holding his commission in this State from two of the members of this court, and subject to be disbarred by this court for what our statute calls ‘malconduct in his office.’ He is appointed to assist in the administration of justice, is required to take an oath of office and is privileged from arrest while attending courts. Our statute provides that no person shall be permitted to practice as an attorney or counselor at law without having previously obtained a license for that purpose from two of the justices of the Supreme Court. By the second section of the act it is provided that no person shall be entitled to receive a license until he shall have obtained a certificate from the court of some county of his good moral character, and this is the only express limitation upon the exercise of the power thus entrusted to this court. In all other respects it is left to our discretion to establish the rules by which admission to this office shall be determined. But this discretion is not an arbitrary one, and must be exercised subject to at least two limitations. One is, that the court should establish such terms of admission as will promote the proper administration of justice; the second, that it should not admit any persons or class of persons who are not intended by the legislature to be admitted, even though their exclusion is not expressly required by the statute. The substance of the last limitation is simply that this important trust reposed in us should be exercised in conformity with the designs of the power creating it. * * * It is sufficient to say that in our opinion the other implied limitation upon our power, to which we have above referred, must operate to prevent our admitting women to the office of attorney at law. If we were to admit them we should be exercising the authority conferred upon us in a manner which we are fully satisfied was never contemplated by the legislature. * * * In view of these facts, we are certainly warranted in saying that when the legislature gave to this court the power of granting licenses to practice law, it was with not the slightest expectation that this privilege would be extended equally to men and women.” By this opinion it is expressly held that the power to license is delegated to the court by the legislature, and it was recognized that the legislature had the right to impose limitations to such extent as it might deem proper, and that it had the right to take away the power.
The power to license and the power to disbar are alike the subject of legislation in the statutes to which reference has been made, and in Winkelman v. People, 50 Ill. 449, it was held that the circuit court had no power to suspend an attorney at law from practice. In that case it was said (p. 451): “The subject of attorneys and counselors at law has been considered by the legislature, and no power over them for mal conduct—and such was the import of the charge against appellant—has been confided to the circuit courts. No power has been given them to strike an attorney from the rolls for any cause. In the Supreme Court alone is that power reposed. * * * The legislature has conferred this power expressly upon this court. By the fourth section of the act respecting attorneys and counselors at law it is provided, among other things, that the justices of the Supreme Court, in open court, shall have power, at their discretion, to strike the name of any attorney or counselor at law from the roll, for malconduct in office. (Gross’ Comp. 41.) And there is a propriety in this, as the appointment of attorneys and counselors is made by that court and the power of removal appropriately rests with the power to appoint. In some States they are appointed by the circuit courts, and, of course, removable by them for proper cause. We know of no power inherent in the circuit court to suspend from practice an attorney duly licensed by this court,—at least none so to suspend him as virtually to strike him from the roll. But it may be asked, has the circuit court no power over an attorney who shall be guilty of malconduct, such as charged against the appellant? The answer is, such court possesses ample power in the premises. Altering the pleas of a court is not only an offense of a grave character, but, being done without the authority of the court in which the files are, is a contempt of that court, its usages and customs, and is punishable by fine and imprisonment. On the possession of this power can those courts safely repose.”
In People v. Palmer, 61 Ill. 255, a proceeding was had in this court to strike the name of the respondent from the roll for malconduct in office. In making the rule absolute it was said (p. 256): “In a certain contingency the discharge of the duty required is painful and disagreeable, but as it is imposed by the statute we cannot shrink from its performance. * * * The statute provides that this court, at discretion, shall have power to strike the name of any attorney or counselor at law from the roll for malconduct in office. It further makes it the duty of the court, whenever it shall be made to appear that any attorney has neglected, upon demand and tender of reasonable fees, to pay over or deliver money or property to his client, to direct that the name of such attorney shall be stricken from the roll of attorneys of this court. * * * This court is responsible, to some extent, for the honesty and capacity of those who shall minister at the altars of justice. We must grant the license to practice, and in the proper case it is our duty to disbar.”
In a similar case (People ex rel. v. Goodrich, 79 Ill. 148,) it was said (p. 153): “This court having power, by express law, to grant a license to practice law, has an inherent right to see that the license is not abused or perverted to a use not contemplated in the grant. * * * In view of our duty as imposed by the statute, and of the defendant’s rights as guaranteed him by the constitution and the laws, we are unable to see why this court has not and should not have the power to purge itself of all uncleanness which may be fqund in its cloisters, and ridding itself of any nuisance which may desecrate them.”
In Moutray v. People ex rel. 162 Ill. 194, a proceeding in the nature of an information was instituted in the circuit court of Richland county, asking that the respondents be suspended from the practice of law in that court. A. motion was made by the respondents to quash the information because the malconduct was not charged to be against the peace and dignity of the People of the State of Illinois, which motion was overruled and an answer was filed and the case tried before the court upon the issues formed. The order of the circuit court was that the respondents be suspended from the practice of their profession in that circuit from the 30th day of-November, 1895, to the 16th day of June, 1897. In passing on the question presented by that record on appeal to this court it was held (p. 196): “We think there was no error in overruling the motion to quash. The statute (chap. 13, sec. 6,) provides that the justices of this court shall have power, at their discretion, to strike the name of any attorney or counselor at law from the roll for malconduct in his office, and that any judge of a circuit court or of the superior court of Cook county shall for like cause have power to suspend * * * during such time as he may deem proper, subject to the right to have such order set aside by this court upon appeal. The statute does not prescribe the mode in which either of these powers shall be enforced. Rule 50 of this court provides that in case an application shall be made to strike the name of an attorney from the rolls there shall be filed an information, signed by the Attorney General or some State’s attorney, and yrhen the information shall be deemed sufficient the court will enter a rule to show cause. It does not appear that any similar or other rule of court having reference to a proceeding for the suspension of an attorney from practice is in force in either the Éichland circuit court or in the second judicial circuit. It is the manifest intent of the statute that the proceeding to suspend from practice shall be summary, and it would seem any appropriate procedure may be adopted, provided the charges are stated with sufficient particularity and reasonable notice is given and opportunity afforded the respondent to produce his testimony and make his defense.”
Subsequently an information was filed in this court in the case of People ex rel. v. Moutray, 166 Ill. 630, in which it was sought to have the name of the respondent stricken from the roll of attorneys, and it was held (p. 632): “This objection was held of no avail on the appeal of respondents in Moutray v. People, 162 Ill. 194. The statute authorizes us, in our discretion, to strike the name of any attorney from the roll for malconduct in his office. Such a proceeding is of a civil character, and not for the purpose of punishment. It is not a prosecution which must be carried on in the name of the People, and the provision of the constitution relied upon has no application. * * * It is our duty to guard and maintain the character of the profession, and to protect the courts and litigants ag-ains't those who indulge in. practices designed to corrupt and defeat the administration of justice.”
In all of these opinions there is a recognition of the power to license as delegated to the court by the legislature, or a recognition of the right to disbar by reason of the power conferred by the legislature, and in none of the cases cited has the right to license or to disbar been placed upon any power inherent in the court, but has been recognized as conferred by the legislature. If either the power to license or the power to disbar is inherent, as belonging to a court of record as an attribute necessary for the performance of its judicial duties, and is solely and only a judicial act having its origin in the power of the court alone, it is difficult to see why a circuit court, being a court of general jurisdiction under the constitution of this State, must not possess the power to license or disbar as an inherent power equally with the Supreme Court of this State; and with the many circuit courts of the State and with the numerous circuit judges there would be constant disagreements and constant conflict with reference to the admission to the bar.and with reference to disbarments, and much confusion would result in the administration of justice by reason of the difficulty in determining who are and who are not officers of the court.
Both counsel for the applicants and counsel opposing the motion to admit the applicants and grant them licenses have evidenced great industry and ability in presenting the full history of the question of admission to the bar in England and in this country. But I have not deemed it necessary to enter upon a discussion of the history of this question, as full power is conferred by the statutes of the State, and the legislature has throughout its history, by its legislation, controlled the question of admission to the bar and disbarment, which has been recognized by this court. I concur in the view expressed by Justice Selden in Cooper’s case, 22 N. Y. 90, where it is said: “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.” After reviewing the constitution, decisions and laws of New York State he says: “It is plain, therefore,' that although the appointment of attorneys has usually been entrusted, in this State, to the courts, it has nevertheless, both here and in England, been uniformly treated, not as a necessary or inherent part of their judicial power, but as wholly subject to legislative action.”
The control exercised by the legislature being the exercise of a police power with reference to the subject matter, cannot be held to be an impairment of judicial power nor the assumption of such judicial power by the legislature. The power of the legislature to prescribe qualifications for the office to which an applicant must conform was incidentally before the Supreme Court of the United States in Ex parte Garland, 4 Wall. 333, where the statute in relation to the test oath was before the court, and it was held: “They 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 always been the g'eneral practice in this country to obtain this evidence by an examination of the parties. In this court the fact of the admission of such officers in the highest court of the State to which they respectively belonged, for three years preceding their application, was regarded as sufficient evidence of the parties possessing the requisite legal learning, and the statement of counsel moving their admission is sufficient evidence that their private and professional character is fair. The order of admission is the judgment of the court that the parties possess the requisite qualifications as attorneys and counselors and are entitled to appear as such and conduct causes therein. Prom its entry the parties become officers of the court and are responsible to it for professional misconduct. They hold their office during good behavior, and can only be deprived of it by misconduct ascertained and declared by the judgment of the court, after opportunity to be heard has been afforded. * * * The attorney and counselor being by the solemn judicial act clothed with his office does not hold it as a matter of grace and favor. The right which it confers upon him to appear for suitors and to argue causes is something more than a mere indulgence, revocable at the will of the court or at the command of the legislature. It is a right of which he can only be deprived, in the judgment of the court, for immoral or professional misconduct. The legislature may undoubtedly prescribe qualifications for the office, 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. The question in this case is not as to the power of courts to prescribe qualifications, but whether that power has been exercised as a means for the infliction of punishment, against the prohibition of the constitution.”
The objection that the act under which this motion for admission is made is special legislation, and therefore violative of the provisions of the constitution, cannot be sustained. It was held in Williams v. People, 121 Ill. 84, (on p. 87): “It is the common exercise of legislative power to prescribe regulations for securing the admission of qualified persons to professions and callings demanding special skill, and nowhere is this undoubtedly valid exercise of the police power of the State more wise and salutary and more imperiously called for than in the case of the practice of medicine.” The court there pointed out that exempting ten-year practitioners from the act, which required all others to have a diploma or pass a special examination, was not special legislation. It said: “It was in the province of the legislature to prescribe what should be the qualifications for the practice of medicine and what the mode in which they should be determined. The act provides as to a graduate in medicine with a diploma that he may practice upon his diploma, it being verified as pointed out by the act. In regard to others it is provided they shall undergo an examination before the State board or board of examiners and may practice upon the certificate of the board. As respects the proviso, we regard it in the light of but prescribing a qualification— that ten years’ practice within the State should constitute a qualification for practicing medicine.” See, also, Atchison, Topeka and Sante Fe Railroad Co. v. Matthews, 174 U. S. 96.
The act of February 21, 1899, is, in my opinion, constitutional.