The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1866-03-20
GreQnfelEiQen
RATES OF SUBSCRIPTION.
Are Attorneys Officers?
Decision of the Supreme Court---A
sharp Criticism.

Decision OF the Supreme Court---A
sharp Criticism.
Editors IltelkIgeMcer:
have read with some interest In th
INTELLIGENCER of the 7th instant II
criticism on the opinion ofthe Supreme
Court of Appeals of this State, render
ed in what is known as the Faulkner
case. have read again the opinion oil
the court which is criticised, as deliver
ed by Judge Brown, and published in
the INTELLIGENCER of the 9th of Feb
ruary last.
mainly to establish two propositions,
first, that an attorney-at-law is not an
officer within the meaning of the act of
Nov. l6, 1868, and required to take the
oath prescribed in said act, commonly
called "the test oath for officers" and
second, that any licensed attorney
should be allowed to practice In any
court of this State upon his taking an
oath to support the Constitution of the
United States, the Constitution of this
State and the oath to honestly demean
himself as an attorney-at-law. The
court established to its satisfaction the
first of these propositions, that IS That
an attorney-at-law is not an officer
within the meaning of the said act of
November 16, 1868, and is not re-
uuired to take the oath prescribed by
the said act before he is allowed to
practice, and then Judge Brown pro-
ceeds with his opinion ION the second
proposition, and disposes of it thus:
"But it may be asked, if an attorney
is not an officer elected or appointed
within the meaning of said act, how is
support the constitution of the United
States and of this State.
at is answered that by the Sd section
of chapter 164, code, 1860, every attor-
ney is required to take the oath of hdel-
ity to the State, the form of which is
prescribed by the first section of chap
Ter l3; and by the act of June 26th, 1868,
chapter 13 of the code, is repealed, nnd
the form of the oath of fidelity made to
correspond with the requirements of
the constitution of the new State, which
is the oath TO support the constitution
of the United States and the constitu-
ton of this State"
The writer in your paper of the 9TH
inst strangely fails to comment on this
nart of the opinion, but confines his
criticism exclusively 10 that part of the
opinion of the court which is intended
to establish the proposition that an at
torney-at-law is not an officer within
the meaning of said act.
With your permission will call the
attention of your critic to what seems
to me to be n remarkable Inconsistency
between the first proposition as es.
tablished by the court and the second
proposition as established by the same
court.
Bear in mind that the court first es-
tablish the proposition that an attor-
ney-at-law is not an officer within the
meaning of the act of November 16.
1863. and then ask The question as
above quoted, "Ifan attorney is not an
officer elected or appointed within the
meaning of said act, how Is 1t he IS re-
ouired 10 take the oath to support the
constitution of the United States ana
of this State" and answer the ques-
tion by saving in substance that the
act of Iuns %. 1868, prescribes that at
torneys-at-law shall take the oath to
support the constitution of the United
States and the constitution of this
State." All that the court says on this
subject is quoted above, and the reader
can see whether or not give the sub
stance correctly.
The only authority by which the court
claims the power to administer the oath
to support the constitution of the
United States TO attorneyS-at-law, is
the act of June 26, 1853.
Now the only part of the said act
which can be construed to require attor-
news at-law to take the oath to support
the constitution of the United States
and of this State, is the first section,
page1, Acts of 1868. which as first enact
ed was as follows: Every person elected
or appointed to any office or trust, civil
or military, shall before proceeding to
exercise the authority or discharge the
duties of the same, make oath that he
will support the constitution OF the
limited States and the constitution of
this State"
Observe the language of this act:
stEyery person elected or appointed to
any Office or trust" &c.
Under this act the court decide that
must "make oath thai
he will support the constitution of the
limited States and the constitution OF
this State" although attorneys are not
named in the act.
ON the 10th day of Novsmber, 1868,
the section above quoted of the act of
June 26. 1868, was amended and re-en-
acted so as to read as follows:
WEvery person elected or appointed
to any office or trust, civil or military,
shall before proceeding to exercise the
the same. take the following oath: i,
A. b., do solemnly swear that will sup
mort ttheconstitution OF the United States
and the constitution of this State;
thot I have never voluntarily borne
arms against the United States; that
have voluntarily given no aid or com
fort to persons engaged in armed nos
tility thereto. by countenanclng,c coun-
selling or encouraging them IN the
same; that 1 have not sought, accePteu
nor attempted to exercise the functions
Of any office whatever under any au-
thoritv in hostility to the United Statesi
that i have not yielded a voluntary
support to any pretended government,
authority. power or constitution within
the United States hostile or intmical
thereto; and that take this obligation
freely. without any mental reservation
or nnrpose of evasion.n See page l3S
of Acts of 1868. -. -.
This act of Nov. 16, 1868, contains
what is commonly called the test
oath for otficers,n and upon its passage
took the place of and was in fact from
that time the first section oil the ACT OF
June %, 1858, and was of course the
first section of the act of June 20. 1868,
at the time the court delivered the
opinion in question.
The court has by this opinion placed
itself in the awkward situation OF de-
Gliding that an attorney-at-law is not an
officer, neIected or appointed. within
l6. 1853. or which is the same thing the
actEof June %, 1868, and that he IS not
REQUIRED to take the oath prescribed IN
said act, commonly called the "test
oath for officers" !" but that an attorney
at-law is required by the said act TO
take the oath to support the Constitu-
lion of the United States, tUhich oath IS
i,s Eaet part of the "test oath for officers. =
o0"s OBSERVER.
THE President has sent orders by tel
eeraph to Gov. Welles, of Louisiana, TO
I'll ole nj