In Re Application For License To Practice Law.

• Decision Date: 15 March 1910
• Citation: 67 W.Va. 213
• Court: West Virginia Supreme Court
• Parties: In re Application for License to Practice Law.

67 W.Va. 213

In re Application for License to Practice Law.

Supreme Court of Appeals of West Virginia.

Decided March 15, 1910.

1. Attorney axd Client Application for License Evidence of Good Character.

On application to this Court for license to practice law, as provided by section 1, chapter 119, Code 1906, and the rule of this Court made pursuant thereto, the order of the county court, as to the good moral character of the applicant, will be treated as prima facie evidence only, and the provision of the statute relating thereto will be construed as prescribing what legal effect as evidence should be given thereto when standing alone and uncontradicted.

2. Same Application for License Objections "May."

The right to practice law given by said statute is not a de jure right, and the word "may" employed therein, in the provision that this Court "may upon the production of a duly certified copy of the order of the county court * * * grant such applicant a license to practice law in the courts of this State," will be construed to have been used in its popular, or permissive sense, and not as synonymous with the word "shall;" and (if upon application for such license and objection to the granting thereof it be clearly shown that the applicant has not the requisite good moral character entitling him to admission to practice law in the courts, his application for such license will be denied.

3. Same License Good Moral Character Evidence.

A case where, upon charges against an applicant for license to practice law, and protest and objection to granting him license preferred by a bar association, and upon the evidence adduced in support of said charges, he was adjudged not entitled to such license and license refused.

Application for license to practice law.

License Refused.

Watts, Davis & Davis, for applicant.

Geo. E. Price, President of Bar Ass'n of City of Charleston, for protestant.

Miller, Judge:

Section 1, chapter 119, Code 1906, is as follows: "1. Any person desiring to obtain a license to practice law in the courts of the State must appear before the county court of the county in which he has resided for the last preceding year and prove to the satisfaction of such court that he is a person of good moral character, that he is twenty-one years of age, that he has resided in such county for one year next preceding the date of his appearance; and upon such proof being made, the court shall make and enter an order on its record accordingly. The Supreme Court of Appeals shall prescribe and publish rules and regulations for the examination of all applicants for admission to practice law, which shall include the period of study and degree of preparation required of applicants previous to being admitted, as well as to the method of examination, whether by the court or otherwise. And the Supreme Court of Appeals may upon the production of a duly certified copy of the order of the county court, hereinbefore mentioned, and upon being satisfied that the applicant has shown upon an examination, conducted in accordance with such rules and regulations, that he is qualified to practice law in the courts of this State, and upon being further satisfied that such rules and regulations have been complied with in all respects, grant such applicant a license to practice law in the courts of this State, and such license shall show upon its face that all the provisions of this section and of the said rules have been complied with: provided, that any person who shall produce a duly certified copy of such order of any county court of this State, and also a diploma of graduation from the law school of the West Virginia University, shall upon presentation thereof in any of the courts of this State be entitled to practice in any and all courts of this State, and the order so admitting him shall state the facts pertaining to the same. Every applicant for the examination required by this section shall pay a fee of five dollars, to be applied to the payment of the costs and charges of conducting said examination."

Pursuant to said section this Court on June 16, 1897, entered the following order: "Until otherwise provided, it is ordered, under chapter 50 of the Acts of 1897, that any person hereafter applying for license to practice law in this State, shall, after a course of reading in the law for two years, appear before the Professors of Law of the University of West Virginia, who are hereby constituted a commission for the purpose, at such times and places as such commission may prescribe, and undergo an examination by them to ascertain his fitness to practice the law in the courts of this State, and such examination shall be such as is required to obtain a diploma of graduation from the Law School of said University and if, upon such examination such applicant shall be found to possess the requisite qualifications, that commission shall grant him a written certificate thereof, and upon it this Court will grant such applicant a license to practice the law."

The applicant has presented a certificate of the law faculty of the University, showing compliance by him with the provisions of said statute and the order of this Court, and also a certified copy of the order of the county court of Kanawha county, entered February 16, 1910, showing that on that day he had personally appeared before and proven to the satisfaction of that court that he was a person of good moral character, was 21 years of age, and that he had resided in said county one year next preceding the date of his application, and has moved the Court to grant him license to practice law.

The Bar Association of the City of Charleston, by its president and secretary, has also appeared and filed their objection and protest against the granting of said license, representing that the applicant was a member of the City Council of the City of Charleston, elected in the Spring of 1909; that a small majority of the Council, including the applicant, having voted against the granting of liquor license in said city, he subsequently, in the month of December, 1909, went to Morgantown, for the declared purpose of taking the Bar examination at the University: that while absent his seat in the council was declared vacant, and C. L. Topping elected to fill the vacancy, such action being based mainly upon what purported to be a telegram from said applicant to the President of the City Council; that Toppingwas understood to be in favor of granting liquor licenses; that subsequently said applicant, claiming that he had not resigned his office, and that said telegram was a forgery, brought a suit in chancery in the circuit court of Kanawha county against said Topping to enjoin and prohibit the latter from acting as a member of the City Council; in which case said applicant was examined as a witness on his own behalf, and a large amount of testimony was taken. The following are the specific charges: First, we charge that the said applicant knowingly and willfully testified falsely as a witness in said cause. Under this charge we specify as follows: (a) He testified falsely in stating, at the time he was examined as a witness on the 11th day of January, 1910, that he owned a home in the City of Charleston, West Virginia, and denied that he had some time before that conveyed the property away, and denied that the title thereto was at that time in some other person than himself or his wife, (b) He testified falsely in said cause in his deposition taken February 2nd, 1910, at Charleston, in stating several times in different forms, in substance that the sale and conveyance of his house and lot in Charleston had no connection with or relation to his vacating or resigning his seat in the City Council. Second, we charge that the said applicant, having been elected by the people in his ward as a member of the City Council of the City of Charleston, corruptly sold out his said office.

In support of these charges the protestants vouch the original papers and testimony taken in said cause.

To this protest applicant has appeared by counsel and moved to quash and dismiss the same, for the following reasons: (1) Said protest is not verified; (2) it does not attack the validity and sufficiency of the certified copy of the order of the County Court, heretofore filed by applicant;.(3) it does not attack the regularity or sufficiency of the examination of applicant, or his qualification to practice law in the courts of this State, as set out in the certificate of the Law Faculty of the University of West Virginia, filed by said applicant; (4) it does not deny that the rules and regulations made by this Honorable Court, under which said examination was had, were in all respects complied with; (5) the matters set out in said protest do not raise an issue or give this Court original jurisdiction as involving habeas corpus, mandamus, or prohibition proceedings; (6) it seeks to collaterally attack and go behind applicant's certificate of moral character, proven as the law provides and judicially ascertained by a court of competent jurisdiction.

We do not think that there is any merit in the point that the protest is not verified. Protestants vouch the record in the judicial proceedings referred to for the verity of the charges preferred.

The motion to quash involves mainly the proposition that the order of the county court is conclusive on the question of the moral character of the applicant, and that being satisfied by the certificate of the law faculty of his legal attainments there is nothing left for this Court to do but to award the applicant license to practice, pursuant to the statute. It was conceded, in argument, however, that before adjournment of the term at which said order was entered, the protestants or some one else, might in that court have the order set aside and vacated, or perhaps might by bill in equity afterwards have it set aside for fraud, or on some other ground of equitable cognizance, but if no...