The West Virginia journal. [volume] (Charleston, W. Va.) 1864-1877, 1866-02-21
Decision Of the Supreme Court In
the Faulkner and Quarricr Case.

Below We give the majority opinions
of Judge Brown, in which Judge Berkc-
shire coincidcd, as also the minority
opinion Of Judge \. Harrison. The
points decided are that an attorney is
not an officer within the meaning Of the
act of Nov. 1G, 1863, prescribing the
'tcst OATH" and that his license cannot
be suspended without due trial. Judge
Polsley's decision is therefore reversed
and unless the courts shall deem it cx'
pedicnt to pass an act applying the act
Of 'C3 to attorneys, Gas it is believed
they will do,) our courts will be open to
those who were FIRST to lead our people
into rebellion:
Judge Brown delivered the following
opinion:
This is a motion to admit the Hon
Charles James Faulkner to qualify and
practice as an Attorney at La" IN the
Court,upon histukiug the oalhS support
the Constitution ofthe United States, tbe
Constitution of this State, aud the oath
Of Office as an Attorney at Law, without
taking the oath prescribed by tho act Of
November 18th, 1865, commonly called
the test oath.
Having produced evidence satisfactory
10 the Court that he was a licensed at.
torney under the laws Of Virginia, and
a practitioner in the Courts Of that State
prior to the formation Of the State Of
West Virginia. and claiming to be a
loyaf citizen Of this State, resident in the
county of Berkeley, which was accepted
as true by the assistant attorney for the
Attorney General.
lst. That u Virginia license cannot
avail tho applicant in tho LAWS Of this
State.
81. That il it could, yet be cannot be
lawfully admitted to practice As an At.
turncy ut Law in this Court without
Gr,t taking the oath prescribed by the
last mentioned act for PERSONS elected or
appointed 10 any Office Of trust, civil or
military which oath is commonly called
the tent oath.
AS TO the first objection, the formation
Of the S,alc Of West Virginia within the
territorial jurisdiction CT the State Of
Virginia was coup detdt, accomplished
in conformity with the laws Of the moth
er State. And our Constitution provides
that the laws Of the old State, not is
conflict with the constitution, shall con.
tinue in force in the new till altered or
repealed by the Legislature.
A license, therefore, valid in Virginia
would be equally 70 iu West Pirrinia,
80 "a, ss those who wereresidcuts within
the bounds Of the new State upon its
organization.
Under this view Of the case, no resi-.
dspt attorney was required to procure 4
new license. And nothing apPesrs to
place Mr.. Faulkner on sny different
footing from his brethren Of the green.
T.g. ! think, therefore, there i, roth
ing in the hr!t otJectl"n:
The second "hJec'lon mas 0eeo arSueo
with ability, learniug aud re'earch, and
| have gwen TO inc case eSFe'u' con-
s'dcra'Ioo' :,
Great pans nave oeen 'AAe9 .nu
much learning a'sP'4yea IN ;ne 'nol' 20
prove tn1t 40 attorney 81 ~" "as -"
officer, whlrh IN one sense cannot DC
successfully OontroSef'ed' Du! tue Ten
question u whether or not nc 10 ~ OH .
Ger e'ee.ea or apPO'n'se ~ q" Tn'ce y,
trust Si'h'n inc ~eSn'Os o' '"' 'a'0
test oath'
Il d'"'nel'on naI 'een attempted 70
be taken between the two ac'S 10 the
application CT TIL" rule OF construction,
as given by tho Court Of Appeals in
Leirh's case
But think it is rather dl'slnctl"n
without difference, .ud on pr'ncIp,ie
cuuuot be sustained. Both acts clearly
apply to the same officers, and II one
does not emoracc othcers the other. can
not: go.
lie was oot sucn an omcer WIND inc
meaning OF the introducing act when
was also sort "f te't oath act 30 the
Court Of Apnpals expressly held IN