The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1848-05-31

w
th and that said Golf is not attorney Of this court
attorney counsellor at law, or solicitor nor
has he ever been admitted to practice such This is
not denied by Gof; but he alleges that he is duly
thcrzed to act as the attorney for the plaintiff by vir
tue OF q warrant OF attorney, copy of which is an
nexed to his affidavit The question is whether, under
such authority, Golf has the right to file declara
ton as attorney for the plaintiff II is provided in art
sec OF the present constitution of this State that any
male CITIZEN OF the age Of twenty years of good
moral character and who possesses the requisite quail
hcatons Of learning and ability shall be entitled to
admission to practice in all the courts of this State
By the 18th section of the relation to the Judi
cary,h passed May IL 1S47, and which was int nded
to carry out the provisions of the constitution far
as Legislation might be necessary and proper for
that purpose, 1t Is provided that Z" every male
citizen, OF the age of twenty-one years, applying
to be admitted to practice attorney solicitor and
counsellor in the courts Of this State shall
by the justices Of the Supreme Court which examna-
ton shall be at general term thereof and if such
person so applying shall be found to be of good moral
character and to possess the requisite
learning and ability the court shall direct an order to
be entered by the clerk thereof stating that such per-
son has been so examined and found to possess the
qualifications required by the constu and there
upon such person shall be entitled to practice ms an
attorney, solicitor and counsellor in all the courts of
this State" 1t is further provided that the Supreme
Court shall by general rules prescribe what shall be
sufficient evidence Of good moral character. In pur-
suance OF this act tho Supreme Court at its general
term. held az Albany in July last made rule pointing
out the in which the citizenship age and mo-
raj character of the applicant should be proved tho
Court. By the act of December 14th, 1s47 and 40,
amending the "Act in relation to the Judiciary it is
provided that any person of good moral character,
although not admitted attorney, may ma mage,
prosecute, or defend suit for any other person. pro-
vded he is specially authorized for that purpose by tho
person for whom he appears in writing by personal
nomination in open court" 1t is under this statutory
provision that Go claims the right to act attorney
for the plaintiff in this suit and resists the motion
the defendant 1t is claimed, the other hand, that
thss act is contrary to the provisions of the constu
ton In the former constitution Of this State there
was no provision made to the qualifications requisite
Tor admission to practice in any of the courts of this
State. That matter left open. and was regu-
lated by the rules Of the different courts In or
der to ascertain what is the meaning and effect of
the provision in the present constitution it is import
ant to consider what the object of State consttu.
ton Its object undoubtedly to establish the funda-
ntal permanent law Of the state that law which il
not to be left to ordinary legislation. constitution
is defined by Judge Story to be ga fundamental law,
or basis of government" established by the peo-
pie, in their original sovereign capacity, to promote
their own happiness, and perma nently to their
rights, property, independence and common welfare.
Il Story Com. Constitution, Sec 33S, 1897 The con-
vention that established a constitution has all the
powers which the people possess in their original
sovereign capacity powers of the legislature
limited and subordinate to the constitution II a
constitutional provision is made upon any given sub
ect the presumed object and intention and the leg
effect Of such provision is that the rule that sub
ect shall be permanent and not left to be repealed
modified as shall proper according to the uctua
ting and changing opinions of successive legislatures
And upon the principle that erpressio unias ercl-
$40 aiernus any law which conflicts with such const-
tutional provision is not within the province of ord
nary legislation. Any other construction would de-
stroy the distinctive character of constitution the
fundamental permanent law of the State. Thus it is
provided in art 2, of the constitution that every
male citizen Of the age Of twenty-one years, who
shall have been citizen for ten days, and an in
habitant of this State year next preceding any
election and for the last four months resident of
the county where he may offer his vote shall be
entitled to vote ut such election, In the election
district of which he shall be a resident Now, trust
il would contended that the legislature could
not pass an act authorizing person to vote ut an
election who not citizen, who was citizen
under the age of twcnty-one years citizen of the
400 nf fuan tv-n Naorc rhn phn hapa
citizen for ten days should not have been resident of
the State for next preceding the election And
Legislature in this respect Again it Is provided by
art s. 1, that the Secretary Of State Comptroller
Treasurer, and Attorney General shall hold their
offices for two years and no one would pretend that
the Legislature would authorize them to hold their offices
for longer than two years. although there is
express constitutional prohibition. Other similar
cases might be cited SO in the case under consdera
ton the constitution provides that any male citizen
OF the age otwentyone of good moral character
and who possesses the requisite qualifications OF learn
ing and ability shall be entitled to be admitted prac
tice in all the courts of this State And yet notwth
standing this provision according to the construction
contended for by the the plaintiff
in this suit the first legislature that meets under the
constitution, can pass law authorizing, in effect
person who is not male citizen and not of the age of
twenty-one years, and who does not possess the
requisite qualifications of learning and ability. to
practice in all the courts Of the State
Such a construction would render the provision of
the constitution nugatory and unmeaning. The con-
stituton must have intended to lay down permanent
time that it passed the judiciary act of May H. 1s47
That act provides that malo citizen Of the age Of
twentyone years and of good moral character, shall
be admitted to practice in all the courts of the State
if he shall be found to possess the qualifications
quired by the constjtuton-Qa 1S47 D. 343 sec 75)
What were the reasons which induced the same legis
lature, at second meeting to pass law which repu
dates the idea Of qualifications being required by
the constitution does not appear Neither is it obvi
Gus, when consider the high trust and responsible
ty Of the officer and duties Of attorney why the
legislature deemed it expedent to pass act author
zing person to practice as an attorney who does not
possess the requisite qualifications of learning and
ability 1t was said however the argume that the
Act Of Dec H. 1S47 did not contravene the constitu
onal provision because It did profess to authorize
admission to practice in all the courts of the State
The to this is that the act makes restrc-
ton as to courts but allows any person. of good mo-
for other person. provided he is specially author
lied in writing or by nomination in open court: in
other words, 1t allows any person of good moral cha
racter to practice in all the courts of the State provi
ded he furnish the evidence of his employment,
which the act requires. This is in its substance and
effect, opposed to the provision made by the costu
ton With these views, and inasmuch as am bound
by the constitution the paramount law of the
State. and as it does not appear that the person
who has brought this suit in behalf of the plaintiff
possesses the qualifications required by the oonstitu
ton, come to other conclusion than that the
dcfe ndantis motion must be granted. | would add
that my associates in this district unanimously concur
with me In this conclusion.
Before Judge Hurlbut-Samuel Bowman rs ".
Mons, j. Sherwood and Josiah Rich.-Order confirming
b. Strdng ct. al. Henrietta Kdin.-Ordered. tho
exceptions to the report of referee we'll taken
Half the surplus, after paying the widow may be paid
to the judgement creditors and the other half to be
distributed among the five children of James Kahn
The shares of the infants to be brought into court
nd the claimants to have n lien all surplus moneys
arising from the sale Of the property &c.
Seldom u.s. Norton Ell. dis.--In this which had
been argued Mt length time back 1t ordered
that the I'M junction be dissolved.
CoURT OF SPECIAL Sessions, May 30.-Before the
Recorder, and Aldermen Adams and Grey-At the
opening OF this court yesterday morning, quite an
ray Of prisoners placed beare the bar for trial
numbering over thirty, consisting of black white and
red lame and blind, young and old, all awaiting their
anxious fate from the court which would either
sign them to much longer imprisonment, turn
them at large again to sin more, Tor properly
speaking to sin AGAIN. The first prisoners called by
the clerk for trial four small boys Of good appear
ance, by the names of John Nc Dcrmott, VIM. Moore,
julius Higgins and George Morris, all charged with
being concerned in stealing box of segars valued ut
So lamp, and other articles, belonging to Howard A.
Baldwin The court, after hearing the case suspend
oil ind Mt hiatt hair yfss and