The Wheeling daily register. [volume] (Wheeling, W. Va.) 1864-1878, 1868-02-24
Opinion Of Judge w. l.. Hindmap
Upon Motion TO Admit
&. A. Miller, OF Knuawha, 10 Prae-
tice Law without Taking the Test
Oath.
EXPARrE-Samuel A. Miller.

EXPARTE-Samuel A. Miller.
On molten to be admitted to prac-
tice as an Attorney IN the Circuit Court
of Cabell county, without taking the
oarh prescribed by the act of the Legis-
lature of West Virginia, passed Febru-
ary IA, 1866, entitled 'An Act in rela-
tiOn to Attorneys.'
The applicant is known to the Court
as having been for somo years previous
to the war an attorney practicing in
the Superior Courts of the State of Vir-
ginia, aud as an at orney now practic-
ing IN the District Court of the U. S. for
West Virginia. He now produces also
the pardon and amnesty granted by the
President of the U. S. for his completely
with and acts during the Rebellion,
and dated on the ODD September, 1868.
1t is claimed by the applicant that
cannot bind this Court. for the follow
ing reasons:
/. 1t is in conflict with the Constitu-
tion of the United States.
2. That the principle involved in
said law has been so decided by the Su-
preme Court of the L. S.
3. That it is the duty of the judges
of the several States to be governed BY
the decisions of the Supreme Court,
when there is conflict between its de-
cisioRs and those of the State Courts on
questions arising under the Constitu-
ton of the United States.
The Court OfAppealS of West Virginia
having decided this act constitutional,
and the Supreme Court of L. S. having
decided the act of Congress, (Which is
nearly in words and entirely in sub
stance, the same as the act of West Nir-
ginia, unconstitutional, it remains for
us to look only to the Supreme law of
the land, in ascertaining our duty in the
premises and settling this conflict so far
as our Jurisdiction goes.
Upon the constitutiOnally of this act
it is neither the duty or privilege OF
this Court to decide. 1t is not for this
Court TO say whether the act in ques'
tion is an eg post facto law, or in the ma
ture of bill of pains and penalties, or
whether it is in perfect accordance with
the Constitution. The Courts above
have passed upon these questions and
il only remains for us to see what they
have decided, and which one we are to
be governed by.
The Constitution of the U. S., art. 6.
sec. 2. declares that, that instrument,
together with the laws made in pursu-
ance thereof, consequently not con-
tlicting) shall be the Supreme law of the
land, aud the judges of every State
shall be bound thereby, anything in the
Constitutions or Laws of any State, to
the contrary Notwithstanding.
The State of Virginia, by its ratitica-
tion, made the Constitution of the u. )
aud the laws made in pursuance thereof,
&c. &c, it's supreme law. The State
of West Virginia, when it was admitted
into the Union, received the Constitu-
ton as its supreme law, anything in its
laws or Constitution to tho contrary
Notwithstanding. The Constitution of
West Virginia, art. l, sec. l, declares
that "the Constitution of the Unitsd
States shall be the supreme law of the
land" This principle has been further
settled by four years of bloody war.
The Constitution of the U. S., art. 3,
sec. !, says "the judicial power of the
United States shalt be vested in one Su-
preme Court, aud in such inferior courts
as the Congress may from time to time,
ordain and establish" The I'd sec. Of
same art. provides that "the judicial
power shall extend to all cases, in law
and equity, arising under the Constitu-
ton, the laws of the U. s., &c, &c"
Now if there is any meaning in these
provisions of the Constitution, it is, that
the Supreme Court of the United States,
is the final arbiter of questions arising
under the Constitution, that when q
question is raised, under the Constitu-
ton of the U. s., and decided by the Su-
preme Court, the decision becomes q
part of tho Constitution, and the Con-
stitution thus expounded, becomes the
supreme law of the land, and the judges
are bound thereby.
Upon this question the Supreme
Court of the U. S. have said, in the case
of Green rs. Meals, lessee, 10 vol. Su-
preme Court decisions by Carter, page
ia, Wheaton, that on all questions
arising under the Constitution and laws
of the Union, this Court may exercise a
reyisory power, ard its decisions are fRdi
and obligatory on all other judicial, tri-
buRals, State, as Well as Federal A State
tribunal has the right to examine any
such questions, and to determine them,
but its decisions must conform 10
that of the Supreme Court, or
the corrective power may be ex-
ercised." The same principles are
decided in the following cases: Hunter
rs. Martin, Wheaton, p. 304, and in Co
hens rs. Virginia, 6 Wheaton, p. 264; in
the former case by Judge Story, in the
latter by Chief Justice Marshall. The
Supreme Court of kentucky, u. s. rs.
Norton, 5 Marshall, 433, said "the expo
sition of the Constitution of the United
States given by the Supreme Court of
the Union, is eoaclsSirs on the State
Courts" The same doctrine is held by
the highest Courts in the following
States: Massachusetts,, 8 Pickering, 1866,
Connecticut, 6 Conn 1873; Pennsylva-
MIA, 6 Binney, 272, aud Binney, "a; aud
the following other cases in Kentucky:
5 Monroe, 29l and Monroe, IS.
Now let us enquire what has been de
cided by the Supreme Court OF the u.