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not have been properly submitted at such biennial town meeting, such propositions shall be submitted at a special meeting duly called. But a special town meeting shall only be called upon filing with the town clerk the petition aforesaid and an order of the supreme or county court, or a justice or judge thereof, respectively, which may be granted upon eight days' notice to the State Commissioner of Excise, sufficient reason being shown therefor."
Counsel for petitioner lay stress upon the word "any" in the clause "except the failure to file any petition therefor," and suggest that, although the petition does not comply with the statute as regards the number of petitioners and the acknowledgment by them as required, it is sufficient to afford the relief sought by this proceeding; that the statute does not say, in terms, “the” petition, and therefore contend that the defect in this petition, although it forms the very basis of calling the special town meeting, may be cured by an order of the court. But it is to be observed that the section referred to expressly provides that a special town meeting shall only be called upon filing with the town clerk the petition aforesaid and an order of the court. It would seem that this petition must be a substantial compliance with the terms of the act, to afford any basis for a special town meeting. And if it does not so comply with the law, no validity can be given to it by the aid of the order of the court. Of course, it need not be suggested that, if the petition was a substantial compliance with the provisions of this section, then the election already had, which was adverse to the right to traffic in liquors, was effective, and that the petitioner, or any other person designing to traffic in liquor, is entitled to no relief I think the application must be denied upon the ground of want of power to make the order. The application is denied accordingly, without costs.
Application denied, without costs.
In re SILKMAN. (Supreme Court, Appellate Division, Second Department. November 25, 1903.) 1. SURROGATE-PRACTICE AS ATTORNEY-VIOLATION OF CONSTITUTION-SUSPEN
Since Const, art. 6, 8 20, forbidding a surrogate to practice as an attorney in any court of record, ipso facto suspends him from practice on his election, an order of the Supreme Court suspending him generally
from practice is superfluous. 2. SAME-DISBARMENT-JURISDICTION.
Code Civ. Proc. & 67, providing that an attorney guilty of any "deceit, malpractice, crime or misdemeanor" may be suspended from practice or removed from office by the Appellate Division, does not cover the case of a surrogate who practices as an attorney in violation of Const. art. 6, § 20, especially as his offense is committed in his capacity of surrogate,
and not as an attorney. S. SAME.
While the Appellate Division of the Supreme Court may have inherent power to discipline attorneys for improper conduct exhibiting turpitude or loss of good character, yet in view of Const, art. 6, & 11, providing for the removal of judicial officers, including surrogates, by the Senate on recommendation of the Governor, preceded by a hearing, etc., and section 20, providing that no one shall be eligible to the office of surro
and 118 New York State Reporter gate who is not an attorney, that tribunal is without power to disbar a surrogate who violates section 20, forbidding surrogates to practice as attorneys.
Goodrich, P. J., dissenting. Original proceedings for the suspension or disbarment of Theodore H. Silkman, as attorney and counselor at law. On return to an order to show cause. Motion for suspension denied.
Argued before GOODRICH, P. J., and BARTLETT, WOODWARD, HIRSCHBERG, and HOOKER, JJ.
James M. Hunt, for the motion.
HIRSCHBERG, J. This proceeding was instituted by Mr. James M. Hunt, an attorney and counselor of the Supreme Court, 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 counselor 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 6 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 I of article 13 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.: "Nor 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 of 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 one hundred and twenty thousand.
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 counsellor, 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 cominission 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 which 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, which, in the absence of a distinct expression to the contrary, should be deemed exclusive. Section II 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, 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 and 118 New York State Reporter 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 attempted to practice law, and it is evident that such a view is essential to the logic of his position. We think the state, ment 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 suspension 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.
Motion denied, without costs. BARTLETT and HOOKER, JJ., concur.
WOODWARD, J. (concurring). I would content myself with a simple concurrence in the views expressed by Mr. Justice HIRSCHBERG were it not that I feel that the dissenting opinion of Presiding Justice GOODRICH does not present the correct view of the law in so far as it relates to the question of population for political and administrative purposes. In passing, it may be proper to suggest that, while the definitions quoted from the standard dictionaries correctly defined the word "malpractice” in the abstract, I am clearly of the opinion that, as applied to practitioners before this court, it must have some relation to the discharge of professional duties. As was said in the Matter of Baum (Sup.) 8 N. Y. Supp. 771, "Malpractice as a lawyer means evil practice in a professional capacity, and the resort to methods and practices unsanctioned and prohibited by law;" and
in Yate's case, 4 Johns. 367, it was said that "the word 'malpractice' is an appropriate term for a contempt committed by an attorney or solicitor in abusing the practice of the court.” So, in Macon v. Shaw, 16 Ga. 186, it was held that the crime of gambling by a city marshal did not constitute "malpractice in office," within a statute authorizing his dismissal for such malpractice, and I know of no rule of construction which warrants an enlargement of the jurisdiction of a court of justice for the purpose of limiting human liberties.
Theodore H. Silkman, an attorney and counselor at law, was elected to the office of surrogate of Westchester county, and entered upon the discharge of his duties as such officer on the ist day of January, 1901, after having taken and subscribed the constitutional oath of office, and it is admitted that he has continued to practice his profession and to act as a referee from that time up to the present. It is alleged on the part of the moving parties that the county of Westchester has a population in excess of 120,000, and, if this allegation is true, within the letter and spirit of the provision of the Constitution above set forth, there can be no doubt that it is the duty of Mr. Silkman to refrain from further activities along the lines which he has been following. Generally speaking, the right of one to use his faculties in all lawful ways, to live and work where he will, to earn his livelihood in any lawful calling, and to pursue any lawful trade or vocation, is the constitutionally declared right of the individual. Matter of Application of Jacobs, 98 N. Y. 98, 106, 107, 50 Am. Rep. 636, and authorities there cited. While it is not to be doubted that it is within the powers of the state to determine the conditions upon which any person may accept public office, it is no part of the duty of the courts to extend the limitations thus made beyond the letter and spirit of the enactment. Mr. Silknian has a right to practice his profession. This right is guarantied by both the state and federal Constitutions, and in accepting the office of surrogate he is not deemed to have sacrificed any of these rights beyond the strict letter of the constitutional requirement, read in the light of those rules of interpretation and construction with reference to which all laws are presumed to have been enacted. There is no respectable authority with which we are familiar which warrants the construction of statutes or constitutions to take away the fundamental rights of the individual beyond the strict letter and spirit of the law, and the authorities are numerous that where the enactment creates a new rule, unknown to the common law, it should be construed strictly against the state or municipality, and liberally in favor of the citizen. Sprague v. City of Rochester, 159 N. Y. 20, 26, 53 N. E. 697; Schneider v. City of Rochester, 160 N. Y. 165, 172, 54 N. E. 721, and authorities there cited. A constitution is an instrument of government made and adopted by the people for practical purposes connected with the common business and wants of human life (The People v. The New York Central Railroad Co., 24 N. Y. 485), and should be construed to promote the great objects for which it was made (North River Steamboat Co. v. Livingston, 3 Cow. 713, 750), without unnecessarily infringing upon the rights of individuals. In giving construction to a constitutional provision the whole provision is to be considered, and