The Wheeling daily register. [volume] (Wheeling, W. Va.) 1864-1878, 1866-02-05

BROWN delivered the following opinion:
This is a motion to admit the Hon;
Charles James Faulkner to qualify ana
practice as an Attorney at Law IN the
Court, upon his taking the oaths to sup,
mort the Constitution, of the United
States, the Constitution of this State,
and the oath of Office as an Attorney at
Law, without taking the oath prescrlipo'
ed by the act of November, 10th, 1905
commonly called the test oath.
Having produced evidence satisfactory
TO the Court that he was licensed at
torney under the laws of Virginia, ana
practitioner in the Courts OF that State
prior to the formation OF the STATE Oh
West Virginia. and claiming to oe q
loyal citizen of this State, resident III
the county of Berkeley which was &C
cepted as true by the assistant attorney
for the Attorney General.
1st That Virginia license can not
avail the applicant in the laws OF this
State.
End. That if it could, yet he can not
lawfully be admitted to practice as an
Attorney at Law in this Court without
first taking the oath prescribed by the
last mentioned act for persons elected or
appointed to any Office or trust, civil or
military which oath is commonly call
ed the test oath.
AS to the first objectin: The form a.
ton of the State of West Virginia
within the territorial jurisdiction OF the
State of Virginia was coup a. etat &C
complished in conformity with the laws
of the mother State. And our constitu.
ton provides that the1aws of the old
State, not in conflict with the constitu'
ton, shall continue in force in the new
till altered or repealed by the Legisla
ture.
A license, therefore, valid in Virginia
would be equally so in West Virginia,
so far as those who were residents within
the bounds of the new State upon its
organization.
Under this view of the case. no resi-,
dent attorney was required to procure a
new license. And nothing appears to
place Mr.. Faulkner on any different
footing from his brethren of the green.
bag. Think, therefore, there IS nothing
in the first objection.
The second objection has been argued
with ability, lear ming and research, and
I have given to the case careful con.
sideration.
Great pains have been taken and
much learning displayed in the effort to
prove that an attorney at law was an
officer, which in one sense cannot be sue.
cessfully controverted But the real
question is whether or not lie is an Off
Ger elected or appointed to an office Of
trust within the meaning OF the said
test oath.
A distinction has been attempted to
be taken between the two acts in the ap-
plication OF this rule of construction, as
given Iy the Court of Appeals in Leigh's
case.
But I think it is rather a distinction
without difference, and Oh principle
can not be sustained Both acts clearly
apply to the same officers, and if one
does not embrace officers the other car
not.
He was not such an officer within the
meaning of the anti-dueling act, which
was also sort of test oath act. So the
Court of Appeals expressly held in
Legh's Case i'll | Mum ASP
The antidueling act disabled the du
elist from being elected or appointed tC
any Office orpost Of profit, trust or emol
ument civil or military, legislative, ex
ecutive or judicial under the government
of the commonwealth.
The language OF the act under consid
Grafton is every person elected or ap
nj o1 - Of firm n
military shall &c.
II was admitted in the argument on
both sides that the reading in the act
office oftrust" should be office or
trust" the word OF" being a clerical
misprsion for the word or
And by comparison of the act with
the first section OF the act of Esd OF june
1868 OF which it is amendatoTy, and
with the 18th Section of Article ID of the
constitution there eau he little doubt of
the fact conceded
The construction given to the act in
Leigh's case as been received and &C,
guessed ih as the unquestioned rule OF
law in Virginia from the time it was pro,
nounced to the present
That the case was rightly determined
is confirmed by the ruling of the Su-
premc Court of New York in the matter
of oaths Of attorneys, 20 Johnson, 494
upon a similar statute, without reference
to the Virginia decision.
1t is also confirmed by the course of
the Supreme Court and Senate and
House of Representatives of the United
States. in permitting Senator'S and Rep
resentatives in Congress to practice in
that Court and still sit in their respect
i've houses, which they could not have
done upon any other rule of construc-
ton than that settled in the cases above
cited; because the Constitution of the sup
United States, which they all swore to
port, declares that no person holding any
Office under the United States shall be a
member of either Housed during his
continuance in Office. If, then, an at
torney at law is, as contended for By the
an officer, and when admit.
ted to practice in the Supreme Court OF
the United States, is an officer under the
United States, within the meaning of
the Constitution, then be could not be a
of either House. nor sit in those
bodies during his continuance in his
Office of attorney.
To do so would be such high offence
that it can not be supposed to have
passed, unobseryed, or unthought of, By
the many eminent lawyers, statesman
and iurists who have habitually done
the like fro 1t the commencement of the
government to the present time, with
out apprehension in single instance.
Again; the act of Congress, July 2nd,
1862, requiring every person elected or
appointed to any Office of honor or