People ex rel. Galvin v. Dorsey

| Cal. | Jul 1, 1867

By the Court, Sanderson, J.:

There is nothing in the Constitution or laws of this State which requires that a license to practice law from this or any other Court must have been obtained before a person can become eligible to the office of District Attorney. The Constitution merely directs that the Legislature shall provide for the election, among other officers, of District Attorneys, without declaring what qualifications shall be required of them. (Art. VI, Sec. 11.) Nor is there anything in the existing legislation of this State which makes a license to practice law a condition to the right of any person to hold that office. (Statutes 1851, p. 187; 1863, p. 95.) The first Act which was passed in relation to the office of District Attorney contained an expression which may possibly give some color to the theory of the appellant, that, in the judgment of the first Legislature, the office should be filled only by licensed attorneys. It provided that, in the absence of the District Attorney, or in the event of his being disqualified in any case, the Court should appoint “ some other attorney ” to perform his duties. (Statutes 1850, p. 113, Sec. 3.) The most that can be claimed for that provision is, that it implied that none but licensed attorneys should hold the office. Admit this to be so ; in the subsequent ’ Act, passed in 1851, this expression was amended so as to read “ some other person,” thus doing away with-the implication, if any, to which the former language might have given rise. (Statutes 1851, p. 187, Sec. 5.) To limit the performance of the duties of the office to licensed attorneys would undoubtedly be wise and politic if there is any danger of incompetent persons seeking and obtaining it. Not more so, however, than in the case of the Justices of this Court, or the Judges of the District and County Courts; yet neither the Constitution nor the Judiciary Act provides that the Justices of this Court, or the Judges of the District and County Courts shall be licensed attorneys. The Constitution is silent upon the subject. The Judiciary Act merely requires that the Justices of this Court shall have been citizens of the United .States and residents of this State for two years next preceding their election—nothing being said about their being licensed attorneys. (Statutes 1863, p. 333.)

We have carefully examined the case of The People ex rel. Hughes v. May, 3 Mich. 598" court="Mich." date_filed="1855-01-15" href="https://app.midpage.ai/document/people-ex-rel-hughes-v-may-6631480?utm_source=webapp" opinion_id="6631480">3 Mich. 598, upon which the appellant relies. To us the -reasoning of the Court is not at all satisfactory, notwithstanding there is no substantial difference between the Constitution and statute of Michigan and our own. In the Constitution of Michigan the words “ Prosecuting Attorney ” are used to designate the office. The Court found in this designation a limitation, on the question of eligibility, to licensed attorneys. Undoubtedly this designation indicates to some extent the character of the duties which belong to the office, but how can it be claimed that it indicates, much more prescribes, the qualifications of the officer ? The Court seems to have confounded the two. The Constitution makes no provision for licensing attorneys, but leaves that matter entirely to the discretion of the Legislature, or perhaps, in the absence of any action on the part of that body, to the Courts. Suppose the Legislature had passed no law providing for the licensing of attorneys, or had passed a law, as they undoubtedly might have done, allowing everybody to’ practice law, according to the Supreme Court of Michigan, what would become of the oEce of District Attorney ? In the event first supposed there would be no licensed attorneys, and therefore, according to their doctrine, nobody eligible to the oEce of Prosecuting Attorney. In the latter event it might be claimed that everybody would be a licensed attorney, and therefore everybody would be eligible to the oEce of District Attorney. These results are possible, and therefore demonstrate the fact that the framers of the Constitution could not have intended what that Court determined that they did. It would be going a great way beyond any rules of construction with which we are acquainted to hold that a mere name given to an oEce ex proprio vigore defines also the qualifications of the oEeer. Under such a doctrine no one but a surveyor would be eligible to the ofice of Surveyor-General, no one but a printer would be eligible to the oEce of State Printer, no one but a pedagogue would be eligible to the oEce of Superintendent of Public Instruction, and no one but a bibliomaniac would be eligible to the oEce of State Librarian. To so hold would be to accord more meaning to a name than was accorded by Juliet, and to afford a new test of oEcial qualifications.

But independent of this, it is absurd to claim that the framers of the Constitution were careful to provide that no one but a licensed attorney should hold the inferior oEce of District Attorney, while they made no such provision in regard to the highest judicial oEcers named in the Constitution. It is not provided that Judges shall be lawyers even, much less licensed attorneys. A man’s fitness for Judge or District Attorney does not depend in any just sense, nor is it made to depend, upon his being a licensed attorney. Uor is there, in a legal sense, any force in the idea that Judges and District Attorneys must be lawyers, much less licensed lawyers. The earlier Chancellors of England were ecclesiastics, not lawyers. Many members of the High Court of Parliament are not lawyers, much less licensed attorneys. So of the Court of Errors, which was once the Court of last resort in the State of New York. So of the earlier Judges of New Hampshire. Chief Justice Ware was a theologian, not a lawyer; one of his associates was a physician and the other a farmer. After the Revolution, the Court of Common Pleas in that State was presided over by Dudley, who was a farmer; Langdon, who was a merchant, and Farrar, who was educated for the pulpit and not the bar. Justices of the Peace are rarely lawyers or licensed attorneys. Sometimes in this State men who were neither lawyers nor licensed attorneys, to the personal knowledge of members of this Court, have filled the office of County Judge, yet no one ever questioned their eligibility.

There is, therefore, no previous custom or usage in this respect which, as suggested by the Supreme Court of Michigan, has by implication become, to all intents and purposes, a part of the Constitution.

The Act in relation to attorneys and counsellors (Statutes 1851, p. 48) has no bearing upon this question. It deals with a different subject. It prescribes the qualifications of attorneys and counsellors, as such, and not public officers; or, in other words, the conditions upon which persons so inclined may be allowed to appear and practice law in our Courts in their own right and not in virtue of official position. It treats of attorneys and counsellors as members of a profession, and not as public functionaries.

Judgment affirmed.