The West Virginia journal. [volume] (Charleston, W. Va.) 1864-1877, 1865-11-15

anil after the passing thereof every pcrs"n
who shall be elected or appointed to any c8ice
or place, civil or military, umtirr Mis Comnton-
,cealM, shall, in addition to the oath now
prescribed by law, take the oath therein pre-
scribcl." =:
The act Of November 16, ,S8G3, directs
that Every person elected or appointed to
any office OF trust, civil or military, shall, be-
frc proceeding to exercise the authority, or
discharge the duties Of the same, take the
following OATH" nc. ...... .......' IL. p
|. The former net. il will be observed, only
embraces persons elected or appointed to any
ndire or pittce "undcr the Commonwealth"
,. The latter law extends to "everv person
elected or appointed to any c6i.e Of trHtt.' ;. h.
The former is limited to PERSONS elected or
appointed u,nlrr Me Commonwealth: the latter
in this respect, is without limitation: it does
not say "un,lrr the Commonwealth" or un-
der the State" nor ,,Sc any word Of like or
equivalent import But the manifest. obri-
onS. common.SenIe reasoning is, that all
officers Of trust" before exercising any all
thority, or diScharginS any duty, hy virtue Of
the office. shall take the oath.
own that the distinction is nice one.
and finely drawn, hut the line mas RIM, and
we'll and distinctly marhei, by Judge Eoanc
who vas conitS$ediy one Of our greatest
juriStS; his decision rests upon il; and |
cannot erase or cxpTDge it.
! In the latter act there is. however, \ pccu-
/ liar hut significant phraScology, which is not
/ to be found in the former: "hc shall, before
procecdin. to exercise the autlon!y. or to dis
charge the dtties Of the office" take the oa;h,
nc. ..
Now Mr.. Leigh himself, in his ingenious
argument upon this question. quoting Bh~k.
Lom.. 3G, defined an oG:e "to be a right to
cxcrcis, public or private employment. and
! to take the fees and cmoluments thcrcnnto
belonging; whether public. as that OF magiS-
imtc, or private, as Of bailiff, receiver or the
like" and expressly admits that in large
sense all attorney at law is an officer; so is
nm attorney in fact, 50 al administrator, 4
physician, aml who not? In the largest
sense, every duty is an o@ce." (Pase 475)
The trainers Of our act must have had this
definition III view when they passed it; be.
cause it requires every such person as is cm-
braccd in the definition to take the oath
before he proceeds to exercise the authority,
or discharge the duties of the office. Admin
is,mtorS, executors, and guardians are clearly
within the meaning of the law, and am 10y
no means prepared to say, without further
reflection, that all trustees do not come with
in the spirit and meaning Of the act; but
presume the appointment means All o!Ai1a
appointment ... ....
Again, the Suprcm, Court seemed to hc o
opinion that the anti.tlucllinS act only appliet
to y,uLEc officers. hcca,,Sc Of the words, undc
/ the Commonwealth" ,," -,...,-.-- =:
Our ract evidently makes no such distinction
either expre.'sly or by Implication the Ian
guaSc being, 81 aNo&trrs Of trnst," without an.
words Of qualification or limitation whatever
i Ifit is not already shown, beyond rcasona
bic controversy that an attorney is such al
officer as is contemplated by the act. let tn
question be fairly tried on the ground mos
strongly urged by Mr.. Leigh, and SO co,ii
IDENTIFY relied upon, as conclusive, by the abb
counsel who opened and concluded the arsu
mentS upon this motion. Mr.. Leigh says, il
his argument: "1hc question here is no
whether the practice Of the law be an c1icr
but whether it he (as the Chief Justice says
) lLpi., 1922 pulGc ofic. or not. know
no better criterion OF ptIhc Office, than tha
mentioned in CurLL., 478, that it is rule
that where one has to do with another man
affairs against his WILL and without his leave
that is an officer: : to which (SayS Mr.. Leigh
be- leave to add, that to every puJhc c1,,
belong duties to which the officer or his ser
wants only are competent and TO which he il
rompcllablc."
l'u; before proceeding to try it by that test
[ must dispose Of an authority introduced IL
the closing argument by the counsel whr
vet, As thought. not without some hcs:ta.
ton : mean the recent opinion Of judge
Williams, Of the Kentucky Supreme Court,
on the petition Of 0. S. Trnnv. Esq. prar.
t;r;ng attorney Of that Court previous to the
rebellion. who, after presenting the Presidents
pardon, lad asked to he permitted TO continuc
his practice rs all attorney Of that Court; and
afta. some r0aark$ as to the loyalty. patriot
ism and abilities Of the learned Judge, OK.
claimed. "that the question had now bea:
solved with as much certainty as any problem
in Ellclil.'
will quote tw5 or three paragraphs from
that opinion After reviewing the Kentucky
Statutes, in relation to the qualifications and
admission OF attorneys, he sums them up rs
follows:
at will he perceived. (<ays the Jmlsr,i
from these various provisions. that tho right
to obtain license to practice from the author.
ticS depends on resi- tr'n', .fnN aq', honrs'!Y,
proJty, and gooI drmcanor, and not on citizsI-
ship and the right by nonresident lawyers
depends on hcin: regularly admitted in tn.
superior courts Of their State therefore the
light to practice law does not belong to that
peculiar class Of rights and privileges which
can oply be exercised by oh:rH,." "
They must be citizens of the State, howev-
cr from whcnc: they came.
! Again. nftcr having shown that there is no
statutory disability, by The laws Of kenturly,
he proceeds:
as there is no disability provided by law.
the only remaining question is as to the duty
Of the court under the power to &.jur its
members for such conduct ;S rrlrkr< them
unworthy. as ministers Of the law, 4arrs Of
and associates Of tic court" .......
But (he ad'l) before the court attempts
! to Gsmr an attorney. it would direct rnle
and hear his defense. Thi<: is n power the
| court can exercise at any time, but until such
rule shall he directed, heard and determined,
he has the right to appear and act rs coun.
SCI" 20. .-3si..,..I..., -!
Thus, deciding that rs he Was then prac-