People v. Hallett

• Decision Date: 01 February 1871
• Citation: 1 Colo. 352
• Parties: THE PEOPLE ex rel. BAXTER et al. v. HALLETT.
• Court: Colorado Supreme Court

1 Colo. 352

THE PEOPLE ex rel. BAXTER et al. v. HALLETT.

Supreme Court of Colorado

February, 1871

Petition for mandamus.

THE proceeding was against the chief justice, and BELFORD and WELLS, JJ., were not agreed upon the principal point, and therefore the writ was denied.

Mr. H C. THATCHER and Messrs. MILLER & MARKHAM, for petitioners.

Mr. W C. KINGSLEY and Mr. N. Harrison, for respondent.

BELFORD J.

This is an application for a peremptory writ of mandamus to issue against Moses Hallett, judge of the third judicial district to compel him to recognize Marmaduke Green as the prosecuting attorney of that district.

It appears that at the election, held in September, 1870, Green was, by the votes of the qualified electors of the third district, elected prosecuting attorney. He received his certificate, took the prescribed oath, filed a suitable bond, received his commission from the governor, and entered upon the discharge of his duties. At the December term of the Pueblo district court the respondent, then presiding as judge, refused to recognize Green as such prosecuting attorney, because he was not, as the order of the court alleges, an attorney of said court, or authaorized to appear therein. It is admitted on both sides that, at the date of the election, Green was not a licensed attorney. On behalf of the relators, it is claimed that the people having elected him to this office, he is entitled to discharge the duties and receive the emoluments of the same, and that the action of the court in refusing to recognize him is not only revolutionary in its character, but, if permitted to ripen into a precedent, would subvert the principles of our government and overthrow the rights of its citizens. On the other hand, it is contended that the statutes of the territory prescribe who shall be attorneys, and make it an indispensable prerequisite to the practice of the law in our courts, that a license shall be obtained from the supreme court, and until it is obtained, no man, however great may be his abilities, is entitled to standing or recognition at the bar of the judiciary. I fully conceive the vast importance of the principles involved, but shall not shrink from their discussion. If permitted to have any choice as to the causes that should come before me, this is one of the last I would desire to entertain, but no choice is left. This court is bound to a single duty, and that is, to decide the causes brought before it according to law, leaving the consequences to fall where they may.

It has been well said that, in order to maintain a system of government which will be able to secure to the citizen his rights, it is necessary to have persons appointed or chosen to administer the law. And, when persons are thus clothed with the power and have assumed the duties of a public officer, they have taken upon themselves the obligation to perform those duties, and if they neglect or refuse to do so, any one whose rights are thereby injuriously affected is entitled to demand relief. The remedy provided by our system of law, as well as that of England, is a process, issuing from the judicial branch of the government, which seeks to compel the officer to go forward and to do that which is enjoined upon him by the position he holds. This process is denominated a writ of mandamus, and when there is a right to execute an office, perform a service, or exercise a function, more especially if it be a matter of public concern or attended with profit, and a person having such right is wrongfully kept out of possession or dispossessed of such right, and has no other specific legal remedy, the court will interfere by mandamus upon reasons of justice and of public policy to preserve peace, order and good government. But, while the judiciary is thus clothed with this extraordinary power, it is never exercised, except to enforce a legal right. It cannot be invoked to place one in office or to secure him in the enjoyment of the same, if it is manifest that he has no title. If, at the date of the election, Green was an ineligible candidate, and legally disqualified from holding the office of prosecuting attorney, the people who elected him were bound to take notice of this ineligibility and disqualification, and no vote that they could cast and no commission that he could receive could remove or cure the infirmities or disabilities which attached to him. While the will of the people is sovereign, still it must be expressed in accordance with recognized public law, and when it exceeds the limits of this, it is the duty of courts to interfere and by judicial checks afford the people time for reason and reflection. Before proceeding to an examination of our statutes on this subject, it will not be out of place to inquire what an attorney is. 'An attorney at law,' says Blackstone, 'answers to the procurator or proctor of the civilians and canonists. And he is one who is put in the place, stead or turn of another, to manage his matters of law. These attorneys,' he adds, 'are now formed into a regular corps; they are admitted to the execution of their office by the superior courts of Westminster Hall and are in all points officers of the respective courts in which they are admitted, and as they have many privileges on account of their attendance there, so they are peculiarly subject to censure and animadversion of the judges. No man can practice as an attorney in any of those courts but such as have been admitted and sworn an attorney.' So early as the statute 4 Henry IV, chapter 18, it was enacted that attorneys should be examined by the judges, and none admitted but such as were virtuous, learned and sworn to do their duty. And many subsequent statutes have laid them under further regulations. The statute in this territory is not much unlike those in England. Section 1 provides: No person shall be permitted to practice as an attorney or counselor at law, or to commence, conduct or defend any action, suit or plaint in which he is not a party concerned, in any court of record within this territory, either by using or subscribing his own name or the name of any other person, without having previously obtained a license for that purpose from some two of the justices of the supreme court, which license shall constitute the person receiving the same an attorney and counselor at law, and shall authorize him to appear in all courts of record within this territory and there to practice as an attorney and counselor at law, according to the laws and customs thereof; * * * and to demand and receive all such fees as are or hereafter may be established for any services which he shall or may render as an attorney and counselor at law in this territory. Section 2 provides that no person shall be entitled to receive a license until he shall have obtained a certificate from the court of some county of his good moral character, and also a certificate from one or more respectable counselors at law, that he has been engaged in the study of the law for two successive years prior to the making of such application. Section 4 makes it the duty of the clerk of the supreme court to make and keep a roll or record, stating that the persons whose names are therein written have been regularly licensed and admitted to practice as attorneys at law within this territory. Section 5 provides: And no person, whose name is not subscribed to or written on said roll, with the day and year when the same was subscribed thereto or written thereon, shall be suffered or admitted to practice as an attorney or counselor at law within this territory.

From reading this statute it is evident that the intent of the legislature in passing it was to elevate the standard of the legal profession, by excluding from it those who had not made the science of the law a matter of study. To guard the interest of the community, and to preserve from violence and injustice the rights of individuals, the legislature emphatically declares that no person shall be permitted to practice as an attorney at law, or to commence, conduct or defend any action in which he is not a party concerned, without having previously obtained a license. He may commence and manage his own case, but if he declines to do this, he cannot employ another individual to attend it for him, unless that individual has qualified himself for the task by two years' study. This evidence is the license under the sign manual of two of the justices of the supreme court, and, in the language of the statute, 'this license shall constitute the person receiving the same an attorney at law, and authorize him to appear in court.' Without that license he cannot appear; it is his passport to the bar. It is the charter that gives him a right to be heard; it is the authaority which empowers him to collect fees for services rendered, and if he does not have it, the court can rightfully and properly refuse to recognize him, although his talents may not be inferior to those of a Webster or a Choate.

Can it be said that the legislature intended to confine this statute to civil suits alone? Does all this legislative solicitude center upon dollars and cents, while the rights of life and liberty are turned adrift to be sported and trifiled with by any one whom the people in their partisan madness and frenzy may elect and call prosecuting attorney? And, can it be said that this court ought to issue a writ of mandate to compel the judge below to violate this clearly-expressed public law? When the statute says, 'that no person shall be permitted to commence, conduct or defend any action without a license as an attorney,' do the words, 'any action,' simply mean any civil action, or do they apply to all kinds of actions entertained and heard in courts? Is there any less...