In re Silkman

Hirschberg, J.:

This proceeding was instituted by Mi*. James M. Hunt, an attorney and counselor of the Supreme Oourt, by the presentation of. verified charges against the Hon. Theodore H. Silkman, surrogate of the county of Westchester, accusing him, in the precise language, of the charges, of “ practicing as an attorney and counsellor at law in the Supreme Court, Westchester county, and before this Appellate Division of the Supreme Court, said Supreme Court being a court of record of this State, in violation of the provisions of section'20 of article VI of the Constitution of this State, and in violation of his official oath as surrogate of the county of Westchester, which oath was taken pursuant to the provisions of section 1 of article XIII of the Constitution of this State.” An order was duly issued upon these charges requiring Mr. Silkman to show cause why an order should not be made suspending him from practice during the continuance of his term of office as surrogate, 'and why such other and further order should not be made as to the court might seem just. A hearing having been had upon the return of the order to show cause, we are now called upon to dispose of the proceeding.

The provision of the Constitution which Mr. Silkman is charged with violating is the following, contained in section 20 of article 6, viz.: “ JSTor shall any judge of the Court of Appeals, or justice of the Supreme Court, or any county judge or surrogate hereafter elected in a county having a population exceeding one hundred and twenty thousand, practice as an attorney or counselor in any court of record in this State, or act as referee.” Mr. Silkman was elected surrogate at the general election in the year 1900, at which time it is claimed that the population of the county of Westchester largely exceeded the prescribed number; but it is contended in his behalf that the word “ population,” as used in the section of the Constitution cited, is to be confined to the citizen inhabitants, excluding aliens, and that so construed the population of the county at the time of his election was within the limit of 120,000.

The question has been argued with force and ability on either side, but in the view taken of our jurisdiction we do not deem it necessary or proper to- decide it. Assuming that at the time of Mr. Silkman’s election it be true that the county of Westchester contained a population exceeding 120,000 within the meaning of the section referred to, then it necessarily follows that upon taking office on January 1, 1901, he was by the express terms of the Constitution at once suspended from practice as effectively as he could possibly be by any order of this court. In so far as the application, therefore, seeks the expression of this court’s opinion upon the abstract question of his right to practice in the absence of any special case in which he is assuming so to do, it but invites either the mere expression of opinion, or, at most, an order in the form of a supplementary mandate indorsing and confirming the suspension already pronounced by the fundamental law. To be effective the action of the court should go beyond suspension already pronounced by the Constitution in the view now considered, and should result, in disbarment, and the jurisdiction of the court should be-considered with respect to the power to decree such disbarment.

The statutory power conferred- upon this court in the premises is. contained in section’ 67 of the Code of Civil Procedure, and, so far as applicable, it provides that “an attorney and counselor, who-is guilty of any deceit, malpractice, crime or misdemeanor,. * * * may be suspended from practice, or removed from office, by the Appellate Division of the Supreme Court.” There, is no charge in this case of the commission of any crime or misdemeanor, and the deceit and malpractice referred to relate, we-think, to some act of professional deceit and malpractice. If, however, Mr. Silkman has violated the injunction of the. Constitution, he has offended as surrogate, and not as an attorney. As an attorney his right to practice law is undoubted, and it is only as surrogate that it is or can be questioned, and it follows that the violation of the Constitution, if it has been violated, has been committed by him in his judicial or official rather than in his professional capacity. *

But it is urged that the Appellate Division has “ inherent ” power to discipline lawyers, and that an offense committed by a judge in practicing when prohibited is likewise an offense committed by him. as a lawyer which calls for the exercise of the inherent power. It may be conceded that an inherent power exists in the court by which attorneys are admitted to practice law, to discipline them in their, profession for any conduct exhibiting turpitude or the loss of that, good character Avhich was essential to admission and which must be deemed equally essential to continuance at the bar. But in the case of transgressions by judicial officers, the Constitution provides for punishment by removal from office, Avhich, in the absence of a. distinct expression to the contrary, should be deemed exclusive. Section 11 of article 6 of the Constitution provides that judges of the Court of . Appeals and justices of the Supreme Court may be removed by concurrent resolution of both houses of the Legislature on a vote of t.wo-thirds of all the members elected to each house and that all other judicial officers, except justices of the peace and judges or justices of inferior courts not of record, may be removed by the affirmative vote of two-thirds of the members of the Senate on the recommendation of the Governor. Such removal must be preceded by a hearing and solemnized by the entry on the legislative journal of the votes of the senators. It cannot be that the law contemplates that the Appellate Division should possess the inherent power of disbarring the judges of the Court of Appeals and the justices of the Supreme Court as lawyers for the violation of judicial duty even though the violation may incidentally involve some professional impropriety. Mr. Hunt insisted upon the argument that it is within the power of the Appellate Division to disbar a judge of the Court of Appeals if he attempt to practice law, and it is evident that such a view is essential to the logic of his. position. We think the statement of the claim carries its own refutation. Section 20 of article 6 of the Constitution provides that no-one shall be eligible to judicial office, including that held by Mr. Silkman,- who is not an attorney and counselor of this State. The disbarment, however, would not operate to remove the incumbent from his office, for that clearly can only be done in the manner prescribed by the Constitution. The absurd, not to say scandalous,, result, would, therefore, be exhibited upon the exercise of this-alleged inherent power of a judicial officer disbarred for misconduct as an attorney, yet retaining his official place and power after he has thus been judicially decreed to be unfit and at the same time incidentally deprived of an essential constitutional element of eligibility.

We think the jurisdiction invoked does not exist and that the charges should accordingly be dismissed. It is proper, however, to add that if the fact was established that the county of Westchester at the time of Mr. Silkman’s election did contain more than 120,000 of population within the meaning of the Constitution, it would undoubtedly be the duty and within the power of any court of record in the State in which he should attempt to practice law to prohibit and prevent him from so doing. All we decide is that we are not called upon to give an abstract opinion upon his right to practice law or to act as referee, in the absence of an actual case brought within our jurisdiction and involving the question ; that a suspension pronounced by this court would add nothing to the force of a supension pronounced by the Constitution- of the State; and that under the circumstances of the case neither the suspension nor disbarment of judicial officers as attorneys being embraced within, the express statutory jurisdiction conferred upon the court, such jurisdiction should not be: assumed ■ under the guise of inherent power.

Bartlett and Hooker, JJ., concurred; Woodward, J., concurred in separate, opinion ; Goodrich, P. J., read dissenting opinion. , '