Written by Chief Judge McSherry on .
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Holding: No.Area of Concern: The Court believed that the Maryland General Assembly only authorized the admission of males to the practice of law at the time of its opinion. Unwilling to take "no" for an answer, Etta H. Maddox took her case to the Maryland legislature, lobbying successfully for legislation that would permit women to become Maryland lawyers. After passing the bar examination, this applicant was sworn in as Maryland's first female attorney on September 11, 1902.
Citation: 93 Md. 727, 50 A. 487 (1901)
That there is no
such thing as a natural inherent right in any
individual to practice law we regard as conclusively settled by
the case of Charles Taylor,
Now, as to the second alternative. Prior to 1898 the Code provided, as amended by the Act of 1892, ch. 37, that "any male citizen of Maryland" possessing the qualifications therein mentioned might be admitted to practice law. Code, Art. 10, sec. 3. In 1898 section 3 and other sections of the same article were amended. As amended section 3 enacts that "all applications for admission to the bar shall be referred by the Court of Appeals to the State Board of Law Examiners, who shall examine the applicant touching his qualifications for admission to the bar. * * * If the Court of Appeals shall find the applicant to be qualified to discharge the duties of an attorney, and to be of good moral character and worthy to be admitted, they shall pass an order admitting him. * * * Every applicant upon presenting himself for Page 730 examination before the Board of Law Examiners" is required to pay a certain fee; and it is further declared in the same section that "any fraudulent act or representation by an applicant in connection with his application or examination shall be sufficient cause for the revocation of the order admitting him to practice." Act of 1898, ch. 139. A perusal of this Act of 1898 will show that the main, indeed the only purpose which the Legislature had in view when it adopted the statute was to change the method of admitting applicants to the bar, and that there was no design to enlarge the class of persons entitled to admission. It is obvious, we think, that under the Code as it stood prior to the adoption of the Act of 1898 the present applicant, not being a male citizen would have been ineligible, unless the rule of interpretation which declares that "the masculine includes all genders, except where such construction would be absurd or unreasonable" (Code, Art. 1, sec. 6), would have brought her within the class of persons entitled to be admitted. Under the phraseology of the Act of 1898, which deals alone with the masculine gender, the applicant is likewise excluded unless the same rule of interpretation includes her. So, whether dealing with the original or amended provision on this subject we confront this general rule of interpretation. It must be noted that the rule whilst general is, by its own terms, not without exceptions. It was couched in general terms because it was intended to be applicable throughout the Code to all subjects therein dealt with, except when its application to some of those subjects would be absurd or unreasonable. If this rule of interpretation does not make the statute declare precisely the reverse of what the words of the statute say, then there is no legislative provision under which the applicant can claim that she is entitled to practice law. And if there is no such legislative provision this Court is powerless to admit her. We cannot enact legislation. We are restricted to an interpretation of that which has been adopted by the General Assembly.
Has the rule of interpretation contained in sec. 6, Art. 1 of the Code any application to the subject-matter before us? Page 731
common law, to which under Art. 5 of the Declaration of Rights,
the inhabitants of Maryland are entitled, no woman could, in person,
take an official part in the government of the State, except as Queen
or Overseer of the Poor, without express authority of a statute. Though
an attorney at law is not in the widest sense of the term a public
officer he is an officer and is required to take an oath of office
which has remained without substantial modifications since the time of
Lord Holt. In England no instance is known in which a woman was
admitted to practice as an attorney, solicitor or barrister. Robinson's
We have been referred to many cases wherein a different view has been taken by other Courts. We cannot undertake to discuss all of these cases. We will examine but one of them, viz. Re Leach, 134 Indiana, 665; s.c. 21 L.R.A. 701. In Indiana the statute declared that certain persons "being voters" could become members of the bar, yet the Court held that women though not voters could be admitted to practice law, because they were not excluded by the statute. In other words though the persons who were entitled to admission to the bar were defined, other and different persons not within the definition could also be admitted if not in terms excluded. Precisely the reverse of this is the correct method of reasoning. It is, as we have shown, within the power of Page 734 the Legislature to say who may be admitted to the bar. When the Legislature does say who may be admitted to the bar, it of necessity excludes all persons who do not come within the designated class. Take the Code of this State as it stood before the adoption of the Act of 1898. It declared that male citizens of the State were eligible. According to the peculiar reasoning of the Indiana case, though the statute distinctly confined the right of admission to male citizens, women could have been admitted, because they were not excluded by an express prohibition. The doctrine is that under a statute applicable to a particular class, everybody else though actually outside the class is included within the class, because not specifically excluded from the class. This is obviously fallacious. The fallacy lies not only in assuming that all persons other than those described by the Legislature have the right to practice law, but in deciding that a designation of a particular class does not of itself necessarily exclude every person not within the class. This fallacious theory of interpretation would, if adopted, enable you to read the former statute as meaning not only what it said, but at the same time as meaning precisely the opposite of what it did say, because that opposite reading though not included in the words actually used was not excluded by restrictive words not used. Upon the same theory women would be eligible to serve on juries. The statute requires that jurors shall be chosen from amongst persons whose names appear on the poll-books or on the tax-books. A woman's name may be on the tax-books and whilst the statute throughout uses the masculine gender in referring to jurors, a woman would be included thereunder and therefore eligible, because there are no words declaring that she shall be ineligible.
But it is said that under sec. 6 of the Act of 1898, members of the bar from other States may become on certain named conditions members of the bar of this State after actually residing in Maryland; and it is contended that under this provision a female who had been admitted to practice law in some other State could locate in this State and be admitted. Page 735 And so it is insisted that though our statutes uses the masculine gender it would not prevent a female lawyer who had been admitted in some other State from locating in Maryland or from being admitted to the bar here after acquiring a residence in this State. The inference deduced from this assumption is that notwithstanding the use of the masculine gender a woman can be lawfully admitted to the bar. This begs the whole question. If a female cannot be admitted to the bar in Maryland under the statute now in force, then though she had been admitted in some other State she cannot by reason or as a consequence of that fact be admitted here. The whole statute must be taken together. Inasmuch as the class of persons for whose admission it provides does not include females, the sixth section, which has relation to the admission of lawyers from other States, must be read as not including females either. Hence, when that section provides for the admission of lawyers from other States, it means such lawyers as are entitled to admission under our law. The purpose of the sixth section was not to permit persons from other States to practice here, if the same persons would, when applying as residents for admission, be ineligible. The whole design of the section was to allow such persons as had been admitted in other States and had then located here, to be admitted without undergoing an examination, if eligible for admission under our own law; but it was never intended to enlarge the class of persons who could be admitted, or to make an exception in favor of a lawyer coming from another State. In accordance with this view it has been held that a woman having a certificate of admission as an attorney from another State was not thereby entitled to admission in Oregon. Re Leonard, 12 Or. 93.
We are not to be understood as disparaging the laudable ambition of females to become lawyers. It is for the General Assembly to declare what class of persons shall be admitted to the bar. We have no power to enact legislation. The Courts can only interpret what the Legislature adopts. If we should say that females are entitled to be admitted to the bar, when the Legislature has not said so, we would exceed our Page 736 authority and usurp the functions of a different and an independent department of the State Government. If the General Assembly thinks, at its approaching session, that females ought to be admitted to the bar it can so declare. Until then we have no power to admit the applicant and her request to be allowed to stand for examination must be denied. (Decided November 21st, 1901.) Page 737