People ex rel. Galvin v. Dorsey

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, [300]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, 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