36 Mo. 256 | Mo. | 1865
delivered the opinion of the court.
Alexander J. P. Garesché, in propria persona, files his motion to vacate the order of the court debarring him as a practitioner. It is not very clear on what precise grounds of law this motion is based. We gather, however, that the mover contends that he has some right to practise as an attorney and counsellor-at-law in this court, which is protected by the Constitution of the United States from the operation of the Constitution of this State. He asks that the rule of court (which prohibits attorneys and counsellors from practising in this court without having taken the oath of loyalty as required by the Constitution of this State), and also the decision dr order made in pursuance thereof, refusing him permission to appear and be heard as counsel for the defendant in the case of the State v. Bernoudy, should be vacated, for the reason that they are prohibited by the Federal Constitution as impairing the obligation of contracts. It appears to be claimed, also, that the requirement of this oath is unconstitutional, as being an ex post facto law.
Our attention is not called to any other specific clause in the Constitution of the United States, which is supposed to be violated. Nor does it very distinctly appear, in reference to the clause concerning the obligation of contracts, whether the party here rests his objection upon his license to practise generally, or upon his particular engagement as counsel in the case named, or upon both; but we are of opinion that neither the one nor the other is a contract within the meaning of the clause in question.
Originally, no person could appear in court by attorney ; but under certain ancient statutes attorneys were admitted to practise by the courts, and were in all points officers of the courts, having many privileges. They had to be examined
In nearly all the States of the Union, the subject of attorneys and counsellors is regulated by statutes, which require in general an examination for admission, a good moral character, and a solemn oath to support the Constitution and laws of the country, and faithfully to perform their duties — (1 Dane’s Abr. 294) ; and under the statutes of this State, no person can practise law as an attorney and counsellor, in any court of record, without a license from a court or judge; nor be licensed without producing satisfactory testimonials of good moral character, undergoing a strict examination as to his qualifications, and taking an oath to support the Constitution of the United States and of this State, and faithfully to demean himself in practice to the best of his knowledge and ability. (R. C. 1855, p. 278.)
The new Constitution now requires of all attorneys and counsellors (as well those already admitted as those hereafter to be admitted), that they shall take an additional oath of loyalty before being permitted to practise in the future. We are unable to discover where in this oath, required of the party here, anything more than he was legally and morally bound to have done by the obligation of the oath which he took when admitted to practice. The acts referred to in the oath, as specified in the 3d section (Art. II.), are such only as, if done, might amount to treason, or to evidence (more or less direct and conclusive) either of treason, or of
Nor does the Constitution make any act criminal which was innocent when done. We do not see that, in any just and proper legal sense, the requirement of this oath can be said to be a bill of attainder or an ex post facto law. (Smith’s Comm. § 230-31.) Nor can it be said to be a retrospective
Attorneys and counsellors are not only officers of the courts, but in some sense public officers, though not strictly State officers.
Matters of internal government, and public offices held within a State and for State purposes, or as a part of the civil institutions of the State, with or without salary or fees from the State, are subject to ordinary legislation as the public judgment and good government may demand, and they are not embraced in the word “contract” within the meaning of the Federal Constitution.—Dartmouth Coll. v. Woodward, 4 Wheat. 627 (Marshall, C. J.), 693 (Story, J.); Butler v.
In the case of Simmons v. State (12 Mo. 268), it was held that a license to practise law was a mere naked grant of a privilege, and neither a franchise (in the sense of property) nor a contract; and in the “ Matter of Oaths by Attorneys,” 20 J. R. 492 (in which attorneys were required to take an oath, under the statutes of New York, that they had never been engaged in a duel), it was said to be a bare franchise or liberty ; and in Austin v. State (10 Mo. 591), this court (Napton, J.) went so far as to declare, that the State has the power to abolish or restrict any trade or profession as they may think expedient, or to require any qualifications of age, length of residence, moral character, &c., which in their wisdom they may think proper ; and that when the Legislature does not prohibit the calling or profession altogether, but “ allows it to be exercised by certain persons, it then becomes a municipal privilege, which may be only exercised by those persons who have the qualifications and pursue the steps required by law.” These expressions where used in a case where an act of the Legislature, restricting the exercise of the party’s calling, was called in question as being repugnant to that clause in the Federal Constitution which declares that citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States; but we think they have equal force here upon the questions of the general right of the party to pursue the practice of his profession by virtue of his former license.
As touching the matter of his particular engagement, it does not appear that he had any other contract than a general employment as counsel in a certain controversy in all the phases which it might assume in the courts, for as much as his services might be worth. On this it may be sufficient to add, that if the State has seen fit, in the exercise of its legislative control over the public offices and municipal in
Motion overruled.