Thatcher, In re. Judge Cooley, in his great work on "Constitutional Limitations," says: "A constitution is sometimes defined as the fundamental law of a state, containing the principles upon which the government is founded, regulating the division of the sovereign powers, and directing to what persons each of these powers is to be confided, and the manner in which it is to be exercised. Perhaps an equally complete and accurate definition would be, that body of rules and maxims in accordance with which the powers of sovereignty are habitually exercised." And further, page 5: "In American constitutional law, the word 'constitution' is used in a restricted sense, as implying the written instruments agreed upon by the people of the Union or of any one of the states as the absolute rule of action and decision for all departments and officers of the government in respect to the points covered by it, which must control until it shall be changed by the authority which established it, and in opposition to which any act or regulation of any such department or officer, or even of the people themselves, will be altogether void." Where an act of the legislature is in conflict with, or is at variance with, the constitution, which is the fundamental law, the constitution must be preferred. In other words, the intention of the people as expressed in the constitution must be preferred to the legislative act, which is merely an expression of the intention of their agents; and wherever the will of the legislature, declared in its enactments, stands in opposition to that of the people as declared in the constitution, the court, in determining between the two, must be govered by the constitution rather than by the act of the legislature. Again quoting the language of Judge Cooley: "The will of the people as declared in the constitution is the final law, and the will of the legislature is law only when it is in harmony with, or at least is not opposed to, that controlling instrument (the constitution), which governs the legislative body equally with the private citizen." Cooley, Const. Lim. page 6. Art. I, Sec. 2, of the present constitution of Ohio provides: Lucas Common Pleas. "All political power is inherent in the people; government is instituted for their equal protection and benefit, and they have the right to alter, reform or abolish the same whenever they may deem it necessary; and no special privileges or immunities shall ever be granted that may not be altered, revoked or repealed by the general assembly." Art. II, Sec. 1, provides: "The legislative power of this state shall be vested in the general assembly. It shall consist of a senate and house of representatives." Art. III, Sec. 1, provides: "The executive department shall consist of a governor, lieutenant governor, secretary of state, auditor of state, treasurer of state, and an attorney general, who shall be elected, etc." Art. IV, Sec. 1, provides: "The judicial power of the state is vested in a Supreme Court, circuit courts, courts of common pleas, courts of probate, justices of the peace, and such other courts, inferior to the Supreme Court, as the general assembly may from time to time establish." Art. II, Sec. 32, provides: "The general assembly shall grant no divorce, nor exercise any judicial power not herein expressly conferred." No judicial power is conferred by this constitution upon the general assembly which is material in determining the questions here involved. These provisions of the constitution divide the powers to be exercised into three separate and distinct classes or departments, the legislative, executive and judicial. The right of each class or department to do any specific act is determined by the question whether that act is in its nature legislative, executive or judicial. Every power exercised by the government must fall within one of these classes, and it cannot be exercised by a department of the government to which it does not belong. By virtue of this arrangement, as stated by Judge Cooley, each department is made to constitute a restraint upon the actions of the others, to keep them within proper bounds, and to prevent hasty and improvident action. In this country the legislative authority is subjected to the control arising from the constitution. From the constitution, Thatcher, In re. the legislative department, as well as every other department of the government, derives its power. When the legislative department attempts to exercise a power conferred by the constitution upon one of the other departments, and, the matter of its right to do so comes regularly before a court, it is the duty of the court, in its exercise of the judicial power conferred by the constitution, to determine the question as to where the power rightfully belongs, and if wrongfully exercised by the legislative department, to declare the act in contravention of the constitution, that is, to declare it unconstitutional. Is the power to authorize an individual to appear as an attorney and counselor at law in the courts of this state a judicial power? If it is, then the legislative enactment now under consideration, and by virtue of which respondent claims the right to practice, is a usurpation of judicial power by the legislative department of the state, and is unconstitutional. This question has been before the courts of last resort of many of the states, and we are not without authority in determining it. The question has arisen, both in relation to the admission and disbarment of attorneys, and from the reasoning, the two powers are so closely allied as to constitute but the exercise of the same general power. "Their (attorneys') admission, or their exclusion, is not the exercise of a mere ministerial power. It is the exercise of a judicial power, and has been so held in numerous cases. It was so held by the court of appeals of New York in the matter of the application of Cooper for admission," said the court in Garland, Ex parte, 71 U. S. (4 Wall.) 333 [18 L. Ed. 366]. The case of Cooper, above referred to by the Supreme Court, is one strongly relied upon by respondent to sustain the position that the act in question is constitutional. In that case the courts say: "Attorneys and counselors are not only officers of the court, but officers whose duty relates almost exclusively to proceedings of a judicial nature, and hence their appointment may with propriety be entrusted to the courts, and the latter, in performing this duty, may very justly be considered as engaged in the ex Lucas Common Pleas. ercise of their appropriate judicial functions." 22 New York, 81. Cooper, In re, In Day, In re, 181 Ill. 73, 90 [54 N. E. Rep. 646; 50 L. R. A. 519], the court say: "The function of determining whether one who seeks to become an officer of the courts, and to conduct cases therein, is sufficiently acquainted with the rules established by the legislature and the courts governing the rights of parties, and under which justice is administered, pertains to the courts themselves. The order of admission is the judgment of the court that he possesses the requisite qualifications. If the legislature by inadvertence, as in this case, assumes the exercise of a power belonging to the judicial department, it should only be necessary to call its attention to the restraint imposed by the constitution." While the provision of the Illinois constitution relating to the distribution of power is not identical with the provisions of our state constitution, the result arrived at is the same, and there is no reason why the language above quoted should not be applied to the case at bar. The Supreme Court of Pennsylvania, in 1888, deciding the case of Joseph P. Splane, said: "It was decided in Brackenridge's case, 1 S. & R. 187, as long ago as 1814, that the admission of an attorney by the court of common pleas is a judicial, not a ministerial act, and for this reason this court refused a mandamus in that case. reason would justify us in refusing it in this." And the court said further: The same "If there is anything in the constitution that is clearly beyond controversy, it is that the legislature does not possess judicial powers. They are lodged exclusively in the judiciary as a co-ordinate department of the government." In the case of Hanson v. Grattan, 84 Kan. 843 [115 Pac. Rep. 646], the court say: "The power to admit applicants to the practice of the law is judicial and not legislative." say: The court in Goodell, In re, 39 Wis. 232 [20 Am. Rep. 42], "The constitution makes no express provision for the bar. Thatcher, In re. But it establishes courts amongst which it distributes all the jurisdiction of all the courts of Westminster Hall, in equity and at common law. And it vests in the courts all the judicial power of the state. The constitutional establishment of such courts appears to carry with it the power to establish a bar to practice in them. An admission to the bar appears to be a judicial power. It may, therefore, become a very grave question for adjudication here, whether the constitution does not intrust the rule of admissions to the bar, as well as of expulsion from it, exclusively to the discretion of the courts.” The question above propounded by the Supreme Court of Wisconsin was answered by the same court in 1876, in the case of Ole Mosness, a resident of Illinois, who made application to be admitted to the bar of Wisconsin. In that case the court say: "Members of the bar are officers of the court, and in some sense officers of the state for which the court acts. If Chap. 50 (Laws of 1855) was intended to do more than authorize the appearance here of members of the bar of other states as counsel in the trial and argument of causes, it was without the power of the legislature." Mosness, In re, 39 Wis. 509 [20 Am. Rep. 55]. The New York court of appeals in the case of Cooper, before referred to, use the following language: "If the removal or suspension of an attorney be, as was held in these cases, (Strother v. Missouri, 1 Mo. 605; Secombe, In re, 15 Howard (U. S.) 15) a judicial act, it is difficult to see how the admission of an attorney is any the less so, especially when, as here, the court in the act of admission is required to pass not only upon the sufficiency of the evidence of certain facts, but upon the constitutionality and the validity of a statute, and thus to exercise the highest judicial function ever entrusted to a court." And also the following language: "The only rational interpretation of which the act admits is that it was intended to make the college diploma competent evidence as to the legal attainments of the applicant, and nothing else. "The legislature has not taken from the court its jurisdiction over the question of admission, but has simply prescribed |