PRACTICE REPORTS.

COURT OF APPEALS.

IN THE MATTER OF THE APPLICATION OF HENRY W. COOPER.

An order of the general term of the supreme court, denying an application for admission to practice as an attorney and counsellor at law, is appealable to this court. (COMSTOCK, Ch. J.; DENIO and WRIGHT, Judges dissenting.)

It is a general rule, that, whenever the law confers a right, and authorises an application to a court of justice to enforce that right, the proceedings upon such an application are to be regarded as of a judicial nature; (not executive or administrative;) and, according to the definition of the Code of Procedure, an application to enforce such right is a remedy; and remedies being divided into "actions" and "special proceedings," the application must be considered a special proceeding. The act entitled "An act relative to the Law School of Columbia College," passed April 7, 1860, providing for the examination by a law committee, of graduates, and their admission to practice as attorneys and counsellors at law in all the courts of this State, held to be valid and constitutional. (COMSTOCK, Ch. J. dissenting. This decision reverses the decision of the supreme court; S. C., 19 How. Pr. R., 136; and also the decision in the case of the graduates of the N. Y. University, id. page 97. See the protest of the supreme court at the close of this case.)

September Term, 1860.

APPEAL from an order of the New York general term of the supreme court.

SELDEN, J. This is an appeal from an order made at a general term of the supreme court, in the first judicial district, denying the application of the appellant to be admitted to practice as an attorney and counsellor at law, pursuant to the provisions of the act relative to the law school of Columbia College, passed April 7, 1860; and the

In the Matter of Henry W. Cooper.

first question to be considered is whether an appeal will lie to this court from such an order.

It is suggested as an objection to the appeal, that such an application is not a judicial proceeding; that the power of appointing or admitting attorneys and counsellors is executive or administrative rather than judicial, and might be conferred upon any other branch of the government as well as upon the judiciary. It is urged, therefore, that the action of the courts in the exercise of this specially delegated power, cannot be regarded as of a judicial nature, and hence that no appeal will lie.

It must be conceded that this objection, if well founded in respect to the nature of the order appealed from, would be fatal to the appeal. It is indispensable to the validity of an appeal to this court, that it be from some judicial determination of the court below. But is not the proceeding here judicial? Although in the general distribution of powers and duties among the great departments of the government, many are found the characteristics of which are so marked, that they can with certainty be referred to the appropriate department, yet this is by no means the case with all. The lines between the various departments are not and cannot well be very precisely defined, and there are many duties which may be with equal propriety referred to either. Duties of this class, and they are very numerous, necessarily take their character from the departments to which they are respectively assigned. The same power which, when exercised by one class of officers not connected with the judiciary, would be regarded and treated as purely administrative, becomes at once judicial when exercised by a court of justice. This is shown by the definitions uniformly given of the word judicial. Webster defines it thus: "Pertaining to courts of justice, as judicial power;" and again, "proceeding from a court of justice, as a judicial determination." In Bouviere's Law Dictionary, it is defined as follows: "Belonging to or emanating from a judge as

In the Matter of Henry W. Cooper.

such, the authority vested in the judges;" whatever emanates from a judge as such, or proceeds from a court of justice is, according to these authorities judicial. This precise principle was involved in some of the cases which have been from time to time presented to our courts under the acts for opening streets in the cities of New York and Brooklyn. The judges at first considered themselves, in the exercise of their powers under those laws, as acting not strictly as judges, but in a sort of administrative capacity as commissioners; but subsequently changed their views in this respect, and took the ground which has since been repeatedly confirmed, that the power was conferred not upon the judges as individuals, but upon the court; that their action in the matter was to be regarded as judicial, and that all the ordinary incidents of judicial proceedings were applicable to such cases.

In the case of Patchin agt. The Trustees of Brooklyn, (2 Wend., 377,) which was carried from the court of common pleas to the supreme court by certiorari, chief justice SAVAGE said: "This is a specially delegated power to the court of common pleas as a court, and not to the judges as an ex-officio duty; and when such a power is committed to a court, all the ordinary powers of such court, so far as they are applicable to the discharge of the particular duty, may be exercised as in ordinary cases." The same judge in a subsequent case, viz., In the matter of Canal street, (11 Wend., 154,) said: "If they misbehave we punish them by attachment, as we might referees in a case committed to them. If for any cause persons appointed as commissioners are shown to be improper, we may, by virtue of the power of appointment, remove them and appoint others. We are not the mere conduits of conveying authority to the commissioners. They become officers of our court, the proceeding is a proceeding in our court, &c."

It will be seen that the chief justice in these extracts spoke not of the action of the court in reviewing and con

In the Matter of Henry W. Cooper.

firming the reports of the commissioners which might be considered as more especially of a judicial nature, but of the appointment of the commissioners themselves, and the substance of what is said is, that as the power was conferred upon and exercised by the court as such, and especially as the officers when appointed were in some sense officers of the court, the cases were to be regarded as subject to those incidents which ordinarily attend judicial proceedings. That the court in appointing these commissioners act judicially was also asserted by GARDINER, president of the senate, in the case of Striker agt. Kelly, (2 Denio, 323). He says: "It might be objected with equal plausibility that the appointment of referees was an executive and not a judicial act. The referees it is true are officers of the court; but these commissioners are quasi officers, and may be compelled to perform their duty by attachment."

The same judge in a subsequent case in this court, viz., In the Matter of Canal and Walker streets, (2 Kernan, 406,) used in reference to the same class of proceedings, the following language: "If the law of 1813 enlarged the juris diction of the supreme court, which in effect was decided in Striker agt. Kelly, no other change was produced. The powers incident to its general jurisdiction so far as applicable, at once attached to the new subject. In administering this law as every other, the court would require the services of its officers, punish for contempt, issue attachments, use the buildings appropriated to the ordinary business of the court, and set aside the proceedings on sufficient cause."

The principle to be deduced from these extracts obviously is, that where any power is conferred upon a court of justice, to be exercised by it as a court in the manner and with the formalities used in its ordinary proceedings, the action of such court is to be regarded as judicial, irrespective of the original nature of the power. The legislature, by conferring any particular power upon a court, virtually declares that it considers it a power which may be most