Ex parte Yale
Before: Rhodes
Synopsis
Constitution — Construction op. — The terms “office,” and “public trust,” as used in section three, Article XI, in the Constitution of this State, have relation only to such duties and responsibilities as are of a public nature.
Attorney at Law.—An attorney at law is not an officer, nor does he hold an “ office ” or “public trust,” in the constitutional sense of those terms.
Same—Subject to Legislative Control.—The manner, terms, and conditions of an attorney’s admission to practice, and of his continuing in practice, as well as his powers, duties, and privileges, are subject to legislative control, the same as any other profession or business that is created or regulated by statute.
Same—Oath op.—The Legislature may lawfully require, as a condition precedent to an attorney’s admission to practice, or his continuance in practice, the taking of tlie oath prescribed in the Act of April 25th, 1863, entitled “An Act to exclude traitors and alien enemies from the Courts of justice in civil cases.” (CoJien v. Wright, 22 Cal. 293, affirmed.)
By the Court, Rhodes, J. Gregory Yale, the attorney for the appellants in the case of Lent v. Morrill et al., now pending in this Court, filed a motion in writing to submit the said case to the Court on the briefs on file, which motion is as follows :
“Lent v. Morrill et al.—Supreme Court, January Term, 1864.—Gregory Yale, an attorney of this Court, having been admitted as an attorney and counsellor of this Court since its organization under the Constitution of the State, and having taken the oath to support the Constitution of the United States and of the State of California, and otherwise conformed to the rules of this Court as an attorney, now moves the Court to submit the case to the Court on the briefs on file, by consent of the attorney for the respondent.
“Gregory Yale, for Appellants.
“ Sacramento, February 11, 1864.”
Whereupon, John F. Swift, one of the attorneys for the respondent, made and filed his objection in writing to the appearance of said Gregory Yale as an attorney at law, which objection is as follows:
“ Gregory Yale, not having taken the oath prescribed by the Act of the Legislature, approved April 25, 1863, entitled 6 An Act to exclude traitors and alien enemies from the Courts of justice in civil cases,’ as an attorney has no right to appear in the above entitled cause, for the purpose of said motion, and I object to his appearance in the capacity of attorney until he takes the said oath.
“John F. Swift, for Respondent.”
Yale appeared in person, and having admitted he had not [243]taken the oath prescribed by said Act of the Legislature to be taken by attorneys at law, contended that the Act referred to in the objection interposed by Swift was unconstitutional, and, therefore, void.
The questions arising upon this proceeding were fully argued, both orally and in briefs, before the Supreme Court in the case of Cohen v. Wright, 22 Cal. 293, and though a very elaborate opinion was rendered by Mr. Justice Crocker, which was concurred in upon the most material points by Mr. Justice Norton, it was considered proper to permit the questions to be again argued upon the motion and objection in writing, as there was no record in this Court of the motion or proceeding upon which the opinion in the case of Cohen v. Wright was rendered.
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