*98On the Merits.
The opinion of the court was delivered by
Manning, C. J.The object of this suit is to test the right of the defendant to the office of District Judge of the fourth judicial District. It is alleged that he was elected to that office in November 1876, but that he can not hold it because of ineligibility, not having ¿ill of the qualifications prescribed by the Constitution. The special qualification wanting is, that he shall have practised law in this State for two years next preceding his election, art. 84.
The respondent, after making a general denial, bases his claim to the rightful occupancy of the judgeship upon a “ degree of Bachelor of Law, duly conferred by the administrators of the University of Louisiana on the 24th. of April 1872, ” and in virtue of his election and commission and qualification as district attorney of the same district in 1872, the duties of which latter office he performed from that time until his election as judge. He alleges that he has practised law in this State for two years next preceding his election, the right to jiractice being based upon the Degree above mentioned, and the actual practice upon his performance of the functions of prosecuting officer, and upon certificates of clerks of courts and of litigants that he had practised.
It can not bo presumed that the organic law, in using the words, “shall have practiced law in this State,” can intend any thing but a practice under legal permission. Those who frame a fundamental law, or any law, can not be supposed to have in contemplation the conferring a benefit in express terms upon a violator of the law. If therefore a person shall practise law, without first obtaining legal permission and in defiance of prerequisites ordained as of essential compliance, he can not base upon the fact of having thus practised a legal right to do something else, of which a lawful practice is the condition precedent. The certificates of clerks, and the testimony of litigants, that the defendant had practised law for two years is of little consequence, unless they are accompanied by a satisfactory exhibition of the authority from which he derives his legal right to practise.
Nor is the fact of holding the office of District Attorney proof that the holder had ‘practised law’'in the sense of those words in the Constitution, for the same instrument fails to require that those officers shall be lawyers, art. 92. It is argued that the Constitution must necessarily intend ex vi termini when it provides for the office of district attorney, that he shall be an attorney at law, but it may be answered that the same instrument must equally intend that a parish judge should have been a lawyer, for men must be lawyers before they can in any proper sense be said to be judges, and if it requires a knowl*99edge of law to be a district attorney, how much greater knowledge does it require to administer the succession system of our State.
Tho defendant’s eligibility to the district judgeship depends upon his legal right to have practised law for two years next preceding his election. That right emanates from the proceedings of the Board of Administrators of tne University of this State on April 24th, 1872. They shall be copied in full:
“ At a meeting of the Board, held this evening, the following preamble and resolutions offered by Mr. Fellows, was adopted by a vote of five to three in the negative, and a motion to reconsider which vote was laid on the table, viz.:
Whereas, the President of tho University being present, and having stated that it would be impossible for him to declare which of the rejected students received three favorable votes on the examination by the professors, and which did not;
Therefore, be it resolved that the degree of Bachelor of Laws be granted to and conferred upon the following members of tho class of 1871 — 72 of the Law department of the University of the State of Louisiana, namely (here follow several names and among them Morris. Marks) and that the President of the University be directed to confer upon them the said degree of Bachelor of Laws, and that tho usual diplomas be granted and issued to them. ”
The text of the law invoked by the respondent is ; — “ The administrators of the University of Louisiana shall have the right of conferring,, under the common seal, on any person whom they may think worthy thereof, all literary honors and degrees known and usually granted by any university or college in the United States or elsewhere.
The degree of Bachelor of Law'and Doctor of Medicine, granted by them, shall authorize the persons on whom it is conferred to practice law, physic and Surgery in the State. ” Rev. Stats. 1870 Sec. 127.
No diploma was ever issued to the defendant. The President of the University never conferred upon him the degree, as the resolution of the administrators directed. The Board resolved that the degree be granted to and conferred upon him, and to shew that their own construction of the scope of the resolution was, that the act was inchoate, proceeded on the instant and in the same sentence to direct that the additional, and supplemental act be done which was necessary to make the conferring the Degree complete, i. e. the President must confer it.
It is manifest besides that the two clauses of the law above quoted refer to two different kinds of Degrees,'one of which is purely honorary and is conferred upon persons already distinguished in some branch of literature, science, or other learning, and the other is conferred upon students who have passed the examination necessary to entitle them to *100it. The first of those degrees is to be conferred upon any persons ■whom the Administrators may think worthy thereof, and it is to be a literary honor, but the last is to have the greater effect of authorizing the recipient to practice law or physic. Can it be reasonably contended, •or inferred, that power is thus given to the Administrators to introduce to the public, or rather to impose upon it, a person authorized to prescribe for the ailments of the body who has never read a line nor heard a lecture upon any branch of medicine ? If it be true that the degree of doctor of medicine can be conferred by the administrators upon whomsoever they may think worthy thereof, although the recipient may bo confessedly without diploma from any Faculty, and if that Degree thus conferred entitles him to practice physic, then an innovation has been made upon the established usages of universities which carries with it dangers of a most appalling character. And the same is of course true in the department of Law.
The statutes upon the subject must bo construed together, and as a whole. In fact, the book known to the profession as the Revised Statutes of 1870 is but one Act. That revisal embodies the various laws on this matter under the head of ‘ Attorney at Law. ’ Secs. 111-130. The substance of those sections, necessary for consideration now, is as follows; — Any citizen of the United States, possessing the qualifications of a legal voter, except that of residence, shall be admitted to practice as an attorney at law in any court of this State, upon obtaining a license from the Supreme Court of this State. That Court shall grant licenses to applicants possessing the qualifications already mentioned, 1st. to all graduates of the Law Department of the University who shall produce, evidence of good character; 2nd. to those who shall produce a license from any other State, or a diploma from any law school of any other State with evidence of good character, and who shall have been examined in open Court touching their fitness to practice law in the courts of this State, and who shall have been found qualified; or who, having a license from a Superior Court of any other State, shall have been examined by one o’f the judges of the Supreme Court, or by two District judges, and have been found qualified; 3d. to those who, upon examination before the Supreme Court, according to its regulations, shall have been found qualified.
It is not pretended or alleged that the respondent had or has a license from any other State, or a diploma from any law school of any other State, or that he was over examined by the Supreme Court and found qualified, and therefore he is not in either the second or third classes. It is not pretended or alleged that he is a graduate of the Law Department of the University of this State, which would entitle him to •a license from this court without examination by its members. It is *101admitted that he never was licensed by this Court at all — that he never received any diploma from the Faculty of the law school, and it is proved that the degree of Bachelor of Law was not conferred upon him, unless the resolution of the Board of Administrators that that degree be conferred upon him, and the direction to the president to confer it upon him, be held to be equivalent to the actual conferring of the degree.
We do not think a mere transcript of a resolution of the Board o.f administrators stands in the place of a diploma and a degree, and when sec. 127 enacts that those upon whom the degree of Bachelor of Law has been conferred by the Administrators of the University shall be authorized to practise law, it must be construed with sec. Ill which prescribes that a license from the Supreme Court of the State must be obtained in order to enable any one to practise law, and with Sec. 112 which authorizes graduates of the Law Department of the University to be admitted to practise without examination by the Court, and because they are graduates. And that this construction of Sec. 127 (which is identical with Sec. 1359) is correct, is conclusively shewn by its concluding clause, for immediately after the provision that the degree of Bachelor of Law when conferred shall authorize the person receiving it to practise law, it is enacted that all diplomas granted by the Board shall be signed by the President, and the professors of the department in which the student may have graduated. And elsewhere it is enacted that the examination of candidates for their degrees in the medical and law departments shall be under the exclusive control of the Faculty of those departments respectively, see. 1368.
The respondent was not a graduate of the Law Department of the-University. The resolution of the-"administrators, which is the sole basis of the respondent’s right to practise law, shews that he was rejected when he applied to be graduated. “ Whereas the President of the University being present, and having stated that it would be impossible for him to declare which of the rejected students received” etc. Having been rejected, and being without diploma, without degree, without a license from this Court, the respondent nevertheless insists that he has practised- law, as the Constitution requires he shall do for a given time, and is therefore eligible to the office of District Judge. We can not hold that the unauthorized practice of a profession entitles one to its highest rewards and honors, when its lawful practice is a condition or prerequisite of eligibility to them. Some of the members of the convention protested against the'adoption of the Judiciary system as is now contained in the Constitution. The short time required for practise as a condition of eligibility to the district judgeship was one of the grounds of protest. The safeguards for the protection of the legal *102profession and the judiciary, afforded by the present Constitution, are slender enough. The portals by which admission to the legal edifice is ■obtained are widened by the Constitution of 1868 beyond former precedent, and we can not enlarge them further without the express mandate of the law. The law has not thus commanded.
We have divested the case of all extraneous matter, of those features which are not essential to be noticed. For instance, Flagg, the former district judge was made one of the relators. 'On exception, his right to join the district attorney in the action was refused properly, and it remained good upon the relation of the latter officer alone. So, a new trial was prayed on the sworn allegation of the discovery of new and important evidence, and this was improperly refused, but the counsel for the relator in oral argument was content to rest the case upon the evidence received on the trial. The brief of the counsel for the respondent discusses this new evidence, which comes up in the record appended to the motion for a new trial, and from which it appears that the resolution of April 24th. 1872 was rescinded by the administrators •on the 10th. of the following month, and it is argued that the Board could not, by thus rescinding their previous resolution, deprive respondent of a right which was vested in him by it. If the new evidence were before us properly we might be of the opinion that this is assuming that the respondent had a vested right upon the mere adoption of the resolution, but it is not necessary that wo should pass upon that question.
We think the respondent was and is ineligible to the office of District Judge, and therefore
It is ordered, adjudged, and decreed that the judgment of the lower court is avoided and reversed, and that the respondent Morris Marks is not eligible to the office of Judge of the Fourth judicial District of this State, which office is now declared vacant, and that there be judgment in- favor of the relator against the respondent for costs of both courts.