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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. Silkman 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
and 118 New York State Reporter the real intent should prevail over the strict letter; but that intent must be gathered from the language, unless this would lead to palpable injustice, contradiction, or absurdity. Adams v. E. R. S. Institution, 136 N. Y. 52, 32 N. E. 622. And "all words, whether they be in deeds or statutes, or otherwise, if they be general, and not express and precise, shall be restrained unto the fitness of the matter or person. Union Hotel Company v. Hersee, 79 N. Y. 454, 461, 35 Am. Rep. 536, citing Bacon's Maxims of the Law, Regula, X. Having these general rules in mind, and keeping in view the duty of this court to use care that in the administration of the law it does not permit any member of this state to be disfranchised or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land or the judgment of his peers (article i, 1, State Const.), let us examine the Constitution of this state, and see if it is necessary, in carrying out the great purposes for which it was designed, to deprive Mr. Silkman of his natural right to use his faculties in discharging his duties as an attorney and counselor of this court at the same time that he is engaged in the work of administering the office of surrogate of Westchester county.
What are we to understand by the words, “having a population exceeding one hundred and twenty thousand," as used in section 20 of article 6 of the state Constitution? Is the word "population one of so precise definition that it may not be "restrained unto the fitness of the matter,” and be made to conform to the spirit of the instrument in which it is used ? We think not, and we are clearly of opinion that the words "having a population," when used in the Constitution of this state, which is to be considered as a whole, complete in itself, force to be given to every provision contained in it, and each clause explained and qualified by every other (People ex rel. Balcom v. Mosher, 163 N. Y. 32, 36, 57 N. E. 88, 79 Am. St. Rep. 552), are to be understood as limited to the resident citizen population of the county. The Constitution of the state is a complete instrument. It provides for the creation of the departments of the state, and limits the powers of the several departments, and when it speaks of the population of the state, or of any of the subdivisions. of the state, we are to find the meaning of the words from the sense in which they are used in connection with the other clauses of the instrument. The Constitution provides a way of determining the population of the state for political purposes, and the readjustment of the political divisions of a sovereignty with a view of the representation of those divisions, or of the inhabitants thereof, in the Legislature, is in its nature a political power, as distinguished from a legislative or judicial power. People ex rel. Carter v. Rice, 135 N. Y. 473, 499, 31 x. E. 921, 928, 16 L. R. A. 836. This power, it is said by the same authority, resides "in the first instance with the people, who in this country are the source of all political power." But it is to be observed that the words “the people," as used in a constitutional sense, although as precise and comprehensive as "population," do not include all of the inhabitants of the state, in its broadest sense. The first Constitution of this state, adopted in 1777, “in the name and by the authority of the good people of this state," ordained, determined,
and declared "that no authority shall, on any pretense whatever, be exercised over the people or members of this state, but such as shall be derived from and granted by them.” But it is a well-established fact that the negro inhabitants of the state, then in a state of slavery, were given no voice in the election of representatives, or in determining any of the political questions of the day. People ex rel. Carter v. Rice, 135 N. Y. 493, 31 N. E. 921, 16 L. R. A. 836; Dred Scott v. Sandford, 19 How. 393, 408, 410, 15 L. Ed. 691 ; 2 Kent's Com. 254, 255, 256. It is equally true that the Indians who occupied reservations or the territory of which they were the original owners of the soil within this state were no part of “the people," but were regarded as dependent nations, wholly distinct from the white community. Dred Scott v. Sandford, 19 How. 403, 15 L. Ed. 691 ; The Cherokee Nation v. The State of Georgia, 5 Pet. 1, 8 L. Ed. 25. "The words “people of the United States' and 'citizens' are synonymous terms, and mean the same thing," say the court in Dred Scott v. Sandford, 19 How. 404, 15 L. Ed. 691. "They both describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the government through their representatives. They are what we familiarly call the ‘sovereign people, and every citizen is one of this people, and a constituent member of this sovereignty.” Again, the same authority says: “It is true, every person, and every class and description of persons, who were at the time of the adoption of the Constitution recognized as citizens in the several states, became also citizens of this new political body, but none other. It was formed by them, and for them and their posterity, but for no one else." If “the people" in a constitutional sense means citizens, it is equally true that in a general sense people constitute population. Webster defines "people," "(2) Persons, generally; an indefinite number of men and women; folks; population, or part of population.” The same authority defines "population" to be "the whole number of people, or inhabitants, in a country, or portion of a country.” Cooley in his Constitutional Limitations (6th Ed. p. 754) says that “the words 'inhabitant,' 'citizen,' and 'resident,' as employed in different constitutions to define the qualifications of electors, mean substantially the same thing." Mr. Chief Justice Taney, in the Dred Scott Case, 19 How. 403, 15 L. Ed. 691, in speaking of the negro, says: “The situation of this population was altogether unlike that of the Indian race," etc.; thus giving a limited use of the word, and indicating that it is not necessarily used in a comprehensive sense. When we find, therefore, in the preamble to the first Constitution, a quotation from the resolves of the Continental Congress that "whereas, his Britannic majesty, in conjunction with the Lords and Commons of Great Britain, has, by a late act of Parliament, excluded the inhabitants of these United Colonies from the protection of his crown,” we are to understand that the reference is to the inhabitants or the people of the political community to which reference is made, and not to the negroes, Indians, or other aliens who may have been within the territorial liniits; and, as the people and inhabitants make up the population of the state in its political aspects,