Dissenting Opinion.
Spencer, J.It is with regret, and with much reluctance and distrust of my own judgment, that I venture, in so grave a matter as this, to differ with the majority of my brethren, and to dissent from their conclusion — but I am constrained to do so by convictions not hastily formed.
I do not hesitate to say that, in my opinion, no one but an attorney at law can “ practice ” within the meaning of that article of the constitution which fixes the qualifications of district judges ; and that, therefore, none but attorneys at law can be district judges.
Nor do I hesitate to say, that the fact of one having been district attorney does not make him an attorney at law, and does not give him, *109therefore, the qualifications for the district bench. One does not become an attorney at law by or through being district attorney. That is not one of the modes prescribed of becoming an attorney at law.
If, therefore, the defendant was an attorney at law, and if he practiced as such for two years preceding his election, as judge of the district court, there remains no other basis for his pretensions than the action of the Board of Administrators of the University of Louisiana, conferring on him the degree of Bachelor of Laws. The first inquiry which naturally presents itself is, did that Board have the power to confer said degree ?
Section 1359, Revised Statutes, page 269, says : “ They (the Administrators) shall have the right of conferring under their common seal, on any person whom they shall 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 Laws and Doctor of Medicine granted by them shall authorize the person on whom it is conferred to practice law, physic, and surgery in this State.”
If there is not imposed elsewhere some qualification or restriction of the power here conferred, I do not see how it is possible to doubt its plenary and absolute character. The first clause of the section gives the Board power to confer “ on any person whom they shall think worthy thereof all literary honors and degrees known and usually granted by any university or college in the United States or elsewhere.” The second clause of the section declares that “ the degree of Bacheler of Laws * * granted, by them, shall authorise the person on whom it is conferred to practice law * * * in this State.” Now it is matter of no moment whether the degree of “ Bachelor of Laws ” is a “ literary degree ” or not; for the power to confer both “ literary degrees,” and the “degree of Bachelor of Laws” is expressly and unmistakably given. So whether the latter is a subdivision of the former, or independent of it, makes no sort of difference.
Is this power to confer “literary degrees and honors” and the degree of “Bachelor of Laws” restricted or modified by other sections of the law? We are told that the power to confer “ literary degrees ” is not, but that the power to confer the degree of “ Bachelor of Laws ” is qualified and limited by section 1360, which provides how diplomas shall be signed. But is not a diploma as essential to the conferring of a “ literary degree ” as to that of the “ degree of Bachelor of Laws?” and if this section, providing that diplomas shall be signed by certain officers, operates a restriction upon the power to confer the one degree, why not upon the power to confer all other degrees ? I do not regard this section as operating any restriction upon the power of the Board in either case. A diploma is simply, evidence of the grant. If the law gives the Board *110authority to grant these degrees, and then directs that as evidence of the grant, certain officers of the university shall'sign a diploma, these officers could not legally withhold their signatures. Their act in signing would be purely ministerial, and they could no more refuse to perform it than the clerk of this court could refuse to attest and verify an order or decree of this court.
I do not intend to assert that the members of the faculty are in fact obliged to sign a diploma for a decree conferred by the Board under the circumstances of this case. I rather think that their duty to do so is confined to the cases where they have examined and recommended candidates to the Board. I think it'is too clear for argument that section 1368 in no wise qualifies the power of the Board in the matter under discussion. It simply gives the faculty the exclusive control of “ the requisites for admission ” (to the university of course), “ the examination of candidates for their degrees ” (referring of course to those who claim degrees as students), “ the management of the pecuniary concerns, the salaries of the professors, and the tuition and terms of admission.”
I conclude, therefore, that the Board of Administrators had the unqualified and absolute power of conferring “ all literary degrees,” as well as that of “Bachelor of Laws;” and that whether “Bachelor of Laws” is a “ literary degree ” or not — a point upon which I do not deem it necessary to express any opinion. It being therefore clear, in my opinion, that the Board had the power to confer on the defendant the degree of Bachelor of Laws, the next inquiry is, did it do so ?
On the twenty-fourth of April, 1872, it passed the following resolution:
Be it resolved, that the degrees of Bachelor of Laws be granted to and cooteered Upon the following members of the class of 1871-1872 of the Law Department of the University of the State of Louisiana, namely: Morris Marks and others. And that the president of the university be directed to confer upon them the said degree of Bachelor of Laws, and that the usual diplomas be granted and issued to' them.
A true copy.
[Extract from the minutes.]
Signed: H. R. Schmidt,
Secretary Administrators.
This language is certainly not ambiguous. It confers “ the degree of Bachelor of Laws ” upon Morris Marks, -without “ proviso ” or “ qualification.” It does not request but directs that the president of the university confer that degree upon him and that a diploma “ be granted and issued ” to him.
The board by that resolution exhausted its power. It conferred the degree. It performed the legislative or judicial function. The neglect or refusal of the president to formally confer, announce, or deliver the *111evidence of the grant could not have the effect of destroying the grant— the decree itself. I do not undertake to say that it was the duty of the president to comply with this order of the Board — for I think it might be plausibly argued that his duty in that regard was confined to graduates of the university. But I do say, that, if the Board had the power to confer the degree, and if it was the president’s duty to deliver the evidence of it, his performance or non-performance of that duty could in no way affect the validity of the action of the Board. The diploma is but the evidence in convenient form.' of the fact that a degree has been conferred. It is but the evidence of a right, and not the right itself. It neither increases nor diminishes the extent or enjoyment of the right, which exists independently of it.
Whether the law conferring this power on the Board is wise or unwise, and whether the Board, in the exercise of its power in this particular instance, acted judiciously, are questions with which this court has nothing to do. This power, this discretion, had to be lodged somewhere ; and like all other human authority it is liable to abuse. The law makes the Board the judge of the loorthiness of those on whom it confers degrees. In my opinion its decision does not admit of review by any other authority upon that point. I say this, not because there has been any attempt in this case to show that the defendant was unworthy, but simply to meet that branch of_the argument which is predicated upon the supposed impropriety of allowing men (who may not themselves be learned in the law) to admit persons to that profession.
If the Board had the power to confer, and did confer, on the defendant the degree of Bachelor of Laws, it is manifest that it could not by an ex parte and subsequent revocation deprive him of the grant or of any rights or franchises flowing from it. See ex parte Garland, 4 Wallace, page 347. This view renders unnecessary any discussion of the motion of the plaintiffs for new trial.
Having, as I think, shown that the defendant lawfully held the degree of Bachelor of Laws, the next inquiry is, what rights and privileges did it confer upon him ? The law (sec. 1359 R. S.) answers the question. It “shall authorize the person on whom it is conferred to practice law in this State.”
What, if any, conditions precedent are imposed upon this authority to practice law ? In my humble opinion there is but one, and that is that he take the oath prescribed. Did he take the oath is the next question ? It must be borne in mind that that oath can, admittedly, be taken before any judge, justice of the peace, or clerk of court in the State— they being “ authorized to administer oaths in all cases.” The defendant swears that to the best of his recollection he did take the oath. True, a copy of the oath is not produced, but the defendant’s statements *112were admitted without objection, and are uncontradicted. We think this ought to be accepted, at least as prima facie proof — especially when coupled with the legal presumption resulting from, a continuous and, so far as appears, undisputed possession of the status and practice of an attorney at law for four years preceding his election as judge.
But it is argued that there was a further condition imposed by law before he could practice; That it was necessary for him to obtain a license from the Supreme Court. Sections 111 and 112 of the Revised Statutes are cited as authority for this proposition. Those sections are in substance as follows:
Section 111. — Any citizen of the United States possessing the qualifications (except that of residence) necessary to constitute a legal voter, shall be admitted to practice as an attorney at law, etc., upon obtaining a license from the Supreme Court.
Section 112. — The Supreme Court shall grant licenses to applicants ■ possessing the qualifications required by the preceding section; first, to all graduates of the University who shall produce evidence of good character; second, when they produce a license to practice law from any other State of the Union — or a diploma from any law school, etc., with evidence of good character, and shall have been examined in open court touching their fitness, etc., and are found qualified; third, when the applicants have been found qualified to practice law, etc., by an examination before the Supreme Court according to such rules and regulations as it may adopt from time to time.
I quote, also, section 113 — “Any foreign lawyer, on presenting his license to anyone of the justices of the Supreme Court, or to any two district judges with evidence of character, etc., who, after being duly examined, etc., shall be by said judges licensed to practice law in any and all courts of this State,” etc.
Now do sections 111 and 112, fairly interpreted, convey the idea that no one can practice law without a license from the Supreme Court?
Section 111 simply declares that “any citizen” upon obtaining a license from this court “ shall be admitted to practice as an attorney at law,” etc. In other words, a license from this court shall be a sufficient authority to the holder to practice. But is that saying that no one shall practice except he have the license of this court ? Surely not, for that would put section 111 in direct conflict with section 113, which says in substance that any foreign attorney shall be entitled to practice upon obtaining a license from two district judges or any justice of this court. And I submit such a construction of section 111 would also put it in conflict with section 1359, which declares that the holder of the degree of Bachelor of Laws, conferred by the Board of Administrators, shall have thereby authority (license) to practice law in this State. There is *113no more reason for requiring that the holder of such degree should obtain a license from this court than there is for requiring it from the foreign attorney admitted by two district or one supreme judge. I do not understand that any one pretends that it is necessary in this last case. Yet if you give section 111 the interpretation contended for by making a license from this court an indispensable prerequisite to the right of practice, it covers all cases, ¿ind there are scores of lawyers in this State to-day who are practicing illegally under the belief that two district judges could examine and license them.
But it is also ur-ged that under section 112 the defendant must have obtained a license from this court. I do not so understand that section.. It declares that this court shall license, first, graduates of the University on proof of good character; second, those who produce a license from other States, or a diploma from other schools with evidence of good character; and, third, those who have been examined by this court and found qualified under such rules as it may adopt.
Now the defendant does not fall within or claim to practice under either of the three classes named. He does not claim to be a graduate of the university, or of any foreign law school, or to hold a license from any other State, or to have been examined toy this court:
To my mind the conclusion is Irresistible, that under certain given-conditions and circumstances there are three modes provided by law for admission to the bar, and to the right to practicing law in this State;-
First — By a license from this court. Sections 111 and 112, R. S.
Second — By a degree of Bachelor of Laws conferred by the Board of Administrators of the University. Section 1359.
Third — By examination and license of two district or one supreme judge, when the applicant is a foreign attorney. Section 113.
There is no law for saying that any one of these powers is subordinate to the others. They are, in their respective cases, sovereign and independent.
I think the defendant possessed the qualifications required by the constitution for district judge, and therefore that the judgment of the court a qua should be affirmed.
I therefore dissent from the decree in this case.