The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1866-02-07

T. OEHHGGn bu6
tUrnevs and counsel of the several
Federal Courts, as 10 the time when
they shall take the oath prescribed in
theformer act, and it's penal clause de-
eldrfilg them to be holders Of Office. With
a single exception, already stated, the
law OF Virginia has been one way on
the subject. Begfnaiil5 nth a colonial
act as carly as 1912, and coming dotC's to
the Code Of 1860, the attorney. IN egeTg
aspect Of his StatuS, has been recognized
and treated, and again and again delloDl-
mated as a public Officer, i
See. l Henning'S Statutes at Large,
2T5, SO2, $50, $40, 4l9, 4s2, 2 Id. 81. 47s 10
4Ts, 49s, Id, 81 $50 to S62, 4oS to y, 4I9
to 5O7, Id. 50 to 81, III, ISL % 1s2, S26 to
34s, 47S, 6 Id, 140 to 143, 33I, 1886, 81, Id.
124 to LIS, S97 to 40l, 8 Id. lS5 70 1S6, 19S,
SS5, 9 Id. 1l9, 121 to III, 52S, IL Id. 76, lS2
TO lS3, II Id. SO, $50, 472 TO 473. l Rev.
Code of 1919, 267. Code OF Va t1s6Ol
p. 699. 5 e,5s
!, 5. AS to the constitution and legisla-
ton of West Virginia, In their effect
upon this question.
( The ordinance OF the re-organized
government OF Virginia, of June l9,
1851, prescribed an oath of allegiance
for all officers, which, upon my previous
reasoning, embraces attorneys. The act
of February 10, 1862, passed, eglaset-
IN, as dldecLdtntoTy act, on this point,
in terms, embraces them, as officers.
The constitution of West Virginia, art;
8, sec. 5, requires "every person, elected
or appointed, to any office or trust civil
or military" to take the oath to sup
port the constitution of the United
States and OF this S!ate."H The IL
art. sec. provides, that the laws
of Virginia, ias in force within
the bounds OF West Virginia, when
the latter State goes into operation,
shall be the laws OF the State except as
repealed or altered by legislation. BY
those laws, as we have seem from 1872
to 1860, attorneys with one exceptionl
have been uniformly treated as public
officers. Lean see nothing in the Con-
stitution or laws of West Virginia to
warrant different construction in this
"In exponnding this statute 1t is
proper to look, itseemS 10 me, to the PEI
culiar condition ofthe country and 10 the
particular exigencies and necessities
which existed when the act was passed.
The preamble, or purpose of a statuteis
sometimes the only key which unlocks
its meaning. If it is not allowed to con-
troll any clear and express provisions
to the contrary, yet, in case OF douot-
full phraseology, in determining the
meaning of q statute, the Court may
we'll look and is frequently compelled
to look to the mischief it designed to
remedy, and to the purpose and policy
upon which the act was founded. What
were these2 When this act was passed
in 1858 rebellion was at It's height,
civil war was raging throughout the
hearts of all who are now affected
by the operations of the act
were then engaged in most
criminal and unwarrantable conspiracy
10 defeat the very object which the stat.
ute was designed to accomplish. Ihat
object was to uphold and maintain the
Union OF the States, and especially this
| state. then struggling hard for its exist
ence, against those who contemned
its institutions, who denied its constf-
| tutiouality. and who were seeking to
| involve It in a common desolation as
we'll as crime 1t was to keep out OF
the body polite here, at least for sea-
SON, the same mortuaEy eienent OF OF
secession which was threatening TO
destroy it elsewhere, and which had
already subjected the country to an al
most fabulous expenditure, both OF
blood and money. If this was the
policy of the act, how was it possible to
reconcile it with this moionf Is 1t not
a contradiction in terms as well us prin-
ciple to suppose that, whilst clerks, re-
corders, sheriffs, justices of the peace
and other ministerial or judicial
| officers are admittedly or at least
| practically embraced by the act,
that attorneys are excepted from
a rule to the expediencey or neces-
sity for which they contributed, per
haps, more than any other class in the
community If a judge upon the bench
must take the oath, which Is not
denied, why shouldnot an attorney
at the bar, who, in his various pub
lie duties and relations, and es-
peoially in his influence upon society,
Is probably more potential than even
the Court, be required to take 1t 1t
seems to me it would be doins injus-
tice to the Legislature to suppose that
they intendedsuch a distinction. j
do not think that. they have
made it. The constitutionality of
the act has not been questioned.
It WIS a statute pendent0 beLLo, 1t
it il true, but 1t was not repealed
by the return of peace. 1t is still in
force. With the wisdom or policy of
the law, or with the e1pediency or
linexpediency of repeating it, 1 have
nothing to do. i have taken the statute
as found 1t, and endeavored to give 1t
such a construction us its palpable
provisions and obviously Intended
purpose would seem to warrant.
For the reasons assigned, however re-
luctant may beto differ from major
ity Of the court in this opinion, think
the motion at bar should be oyerruled.