Petition of Splane , 123 Pa. 527 ( 1889 )

Opinion,

Mr. Chief Justice Paxson:

The petitioner asks us to grant him a rule to show cause why a writ of mandamus should not issue to the judges of the Orphans’ Court of Allegheny county commanding said judges to admit him to practice law in said court. The petitioner avers that he is a member of the bar of Cambria county, duly admitted in good standing, and that the Hon. Robert L. Johnston, president judge of said county, did on the 19th day of November, A. D. 1888, certify in writing that the petitioner is a-member of the bar of Cambria county, of reputable professional standing and of unobjectionable character; that he is a member of the bar of this (Supreme) Court, in good and regular standing ; and that by virtue of the act of assembly of this state, approved the 7th day of May, 1885, entitled “an act to further regulate the admission of attorneys and counsellors at law to practice in the several courts of this commonwealth,” and the supplement thereto approved the 19th day of May, 1887, he is entitled to admission to any of the courts of this commonwealth.

The respondents in their answer have set forth at length the proceedings in then.’ court in regard to the petitioner’s application for admission to the bar, from which we gather that upon two occasions he had been before the board of examiners, and in each instance had been rejected by said board as not being properly qualified; that subsequently he had been admitted in the Court of Common Pleas of Cambria county; that it was not alleged that he had ever resided in the said county or practiced there, or that he was even a citizen of Pennsylvania; nor was it alleged that the examinations to which the petitioner had been subjected in Allegheny county were unreasonable or unfair; nor that he had been admitted to the Supreme Court, or the Cambria County court, upon examination as to his qualifications or merits.

I will remark in passing that the petitioner’s admission to this court occurred at the last term in the Western District, and was based upon a certificate of his admission to the Court of Errors and Appeals of the state of New York, which, under the comity which exists between the states, and our rule of court, seemed to entitle him to admission to our court. An examination of the certificate, however, shows that it is not that of the Court of Errors and Appeals, but of the Supreme Court of that state, certifying to his admission to the Court of Errors and Appeals. As his admission to the Supreme Court there, would not entitle him to admission here, and as one court is not permitted to certify the records and proceedings of another court, especially a higher court, we regard our order made at Pittsburgh, admitting the petitioner to practice in this court, as having been improvideutly made.

The question now for our determination is whether the petitioner, after having twice presented himself before the duly constituted board of examiners, and having been twice rejected by them as not properly qualified to practice law, can, by procuring his admission in another county, aided by the act of assembly, compel his admission in the court where he has been rejected for incompetency. If he can, we have fallen upon evil times for the profession of the law.

We would not dignify such a proposition by discussing it, but for the acts of assembly referred to. The first section of the act of May 7,1885 P. L. 16, is as follows: “That from and after the passage of this act, it shall be lawful for any attorney and counsellor at law, who shall have been duly admitted to practice in any court of Common Pleas, and in the Supreme Court of this commonwealth, to be admitted to practice in any other court of this commonwealth, upon motion simply, and filing, together with his certificate of admission to the Supreme Court, a certificate of the presiding judge of the county from whence he came, setting forth that he is of reputable professional standing, and of unobjectionable character.”

This act was merely declaratory of the law as it stood before, and was of no possible use. It merely made it lawful for the courts to do what it was lawful to do before its passage, and which had doubtless been done in numerous instances.

The act of May 19, 1887, P. L. 131, amended the act of 1885, by declaring that the court shall admit attorneys in the cases there recited.

If we concede the power of the legislature to pass such an act, it will not help the petitioner. He has not complied with it, for the reason that it requires a certificate of the “ presiding judge of the county from whence he came, setting forth that he is of reputable professional standing,” etc. This plainly means the certificate of the judge of the county where he has last lived and practiced law, who is presumed to know his qualifications in that regard, and who can truly and intelligently certify to his good character. A lawyer may chance to be a member of the bar of half the counties in the state; he may be admitted in a county other than the one in which he resides, for the mere purpose of trying a single case. It is the merest evasion of the act to present the certificate of the judge of a district where the petitioner has not last lived and practiced, and an admission to the bar obtained by such means might well be vacated by the judge who should inadvertently grant it, as a fraud upon the court.

Nor do we regard the act of 1887 as intended to apply to lawyers coming from other states upon certificates from foreign courts. These have no rights except by comity.

We are not willing to concede to the act of 1887 the full effect claimed for it. It was decided in Brackenridge’s Case, 1 S. & R. 187, as long ago as 1814, that the admission of an attorney by a Court of Common Pleas is a judicial, not a minisferial act, and for this reason this court refused a mandamus in that case. The sarhe reason would justify us in refusing it in tins.

If there is anything in the constitution that is clear beyond controversy, it is that the legislature does not possess judicial powers. They are lodged exclusively in the judiciary as a coordinate department of the government. The executive and legislative departments can no more encroach upon the judicial department, than the latter can encroach upon them. Each department, in our beautiful system of government, has its own appropriate sphere, and so long as it confines itself to its own orbit the machinery of government moves without friction.

We have too much respect for the legislature to suppose it would ever intentionally step over the line which divides the different departments, but slight encroachments may sometimes occur through inadvertence. In such cases it is the province of the judiciary to correct them. It is our duty to see that the checks and balances provided by the'constitution are preserved. We are clearly of opinion that the act of 1887, though probably not so intended, is an encroachment upon the judiciary department of the government.

Moreover, it is as unwise as it is illegal. It is an imperative command to admit any person to practice law upon complying with certain specified conditions. Yet between the time when the applicant has obtained his certificate of good character from the judge of the district where he last resided and practiced law, and the presentation of the same to the court which he seeks to enter, he may have committed some act which would render him an unfit person to practice law, or even to associate with gentlemen. No such iron-clad rule would ever have been adopted by the judiciary, to which the subject properly belongs. No judge is bound to admit, or can be compelled to admit, a person to practice law who is not properly qualified, or Avhose moral character is bad. The profession of the law is one of the highest and noblest in the world. The relation between attorney and client is a very close one and often involves matters of great delicacy. The attorney is an officer of the court, and is brought into close and intimate relations with the court. Whether he shall be admitted, or whether he shall be disbarred, is a judicial and not a legislative question.

The rule for a writ of mandamus is discharged.