In re Application for License to Practice Law ( 1910 )

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 S.tate 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 coiinty 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 Yirginia, 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 Kanáwha 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 tó 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 tlie 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 tlie City Council; that Topping was 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 ICanawha 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. TJnder this charge we specify as follows: (a) He testified falsely in stating, at the time he was examined as a witness on the lltli 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) lie 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 protestante vouch the original papers and testimonjr 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 one shall volunteer to institute such proceedings the order is and continues to be res judicata, and that regardless of the seriousness of the charges preferred the court must shut its eyes to them and award the license. Such license, it is conceded, would not necessarily bind the Court to admit the licensee to practice in the Court, but would give the applicant a vested right which could be taken from him only for cause occurrring subsequently.

These propositions involve to some extent the question of power in the legislature to prescribe qualifications and rules and regulations for obtaining license and admissions to practice law, as well as the proper construction of the statute. The authority of the legislature is denied by some courts, on the ground that courts have the sole right to prescribe for themselves the qualifications of their ministers of justice, and rules and regulations for their admission, without interference by a co-ordinate branch of the government. In Re Day, 181 Ill. 90; In Re Mosness, 39 Wis. 509; In Re Splane, 123 Pa. St. 527; In Re Branch, 70 N. J. L. 537 (57 Atl. 431). The Illinois court in In Re Day denied the authority of the legislature to require that possession of a certificate of graduation from a law school of a certain specified standard should entitle the holder to be admitted to practice law. Such right on the other hand seems to’ have been upheld in New York. In Re Cooper, 22 N. Y. 67. See also In Re Applicants for License to Practice Law, (N. C.) 10 L. R. A. (New Ser.) and note 288, 143 N. C. 1, 55 S. E. 635.

The North Carolina case just cited is much relied on by counsel for the applicant. The court in this case was divided three to two, the two judges dissenting having filed vigorous dissenting opinions. And the editor of the note to this case just referred to says: “Aside from the above case, no case can be found wherein the court holds or recognizes the right of the legislature to encroach upon the right of the court to require that the attorneys practicing before it shall be of good moral character.” The decision of the majority in this case put the right to a license and to practice law in the courts upon the same plane with the right to .pursue any other avocation in life, and concedes the right to the legislature to prescribe rules and regulations therefor.

With scarcely an exception it has been held that both in the admission to and suspension from ¡practice of the law, courts act judicially in the exercise of an inherent power, and not in a mere administrative or ministerial capacity, and in the execution of the will of some other branch of the government. In Re Day, supra, pages 85, 91; Ex-parte Secombe, 19 How. 9; Garrigus v. State, 93 Ind. 242; In Re Splane, supra; In Re Garland, 71 U. S. 333, Syl. 6; Walker v. State, 4 W. Va. 749, 753; State v. McClaugherty, 33 W. Va. 250; State v. Stiles, 48 W Va. 425; State v. Shumate, Id. 359, and State v. Hays, 64 W. Va. 45.

But notwithstanding the jurisdiction of the courts over the subject it has been generally conceded that the legislature may in the exercise of its police power, prescribe reasonable rules and regulations for admissions to the bar, which will be followed by the courts. ’ But the legislature may not impose unreasonable rules or deprive the courts of their inherent power to prescribe other rules and conditions of admission to practice. In Re Day, supra p. 95; In Re Leach, 134 Ind. 665, 671-2; 3 Am. & Eng. Ency. Law, 287; 4 Cyc. 900; Ex-parte Secombe, supra; In Re Goodell, 39 Wis. 232, 20 Am. Rep. 42. Tbe Wisconsin court, in the ease last cited, says: “In courts proceeding according to the course of the common law, a bar is almost as essential as a bench. And a good bar may be said to be a necessity of, a good eourt. This is not always understood, perhaps not fully by the bar itself. On the bench, the lesson is soon learned that the facility and accuracy of judicial labor are largely dependent on the learning and ability of the bar. And it well becomes every court to be careful of its bar and jealous of the rule of admission to it, with the view to fostering in it the highest order of professional excellence." And again at page 240, it is said: “The legislature has, indeed, from time to time, assumed power to prescribe rules for the admission of attorneys to practice. When these have seemed reasonable and just, it has generally, we think, been the pleasure of the courts to act upon such statutes, in deference to the wishes of a co-ordinate branch of the government, without considering the question of power.” Again, referring to what the Court characterizes as “the unwise and unseemly act of 1849,” it is said: “If, unfortunately, such an attack upon the dignity of the courts should again be made, it will be time for them to inquire whether the rule of admission be within the legislative or the judicial power. But we will not anticipate such an unwise and unbecoming interference in what so peculiarly concerns the courts, whether the power to make it exists or not. In'the meantime, it is a pleasure to defer to all reasonable statutes on the subject. And we will decide this motion on the present statutes, without passing on their binding force.” After this decision the legislature of Wisconsin enacted that “no person shall be denied admission or license to practice as an attorney in any court of this state on account of sex.” The applicant Miss Goodell then again applied for admission to practice, and the court while questioning the absolute and exclusive power of the legislature to make rules or to declare who shall be admitted as attorneys to practice in the courts, nevertheless decided to admit the applicant without considering the question whether under the constitution and laws of that state the legislature had the power to prescribe the rule of admission to the bar. In Re Goodell, 48 Wis. 693. In In Re Day, at page 89, quoting from Ex-parte Secombe, supra, .the eourt says: “And it has been well settled by the rules and practices of common law courts that it rests exclusively with the courts to determine who is qualified to become one of its officers as attorney and for what cause he ought to be removed, * * * and .we are not aware of any case where a mandamus was issued to an inferior tribunal commanding it to reverse or annubits decision, where the decision, in its nature, was a judicial act and within the scope of its jurisdiction and discretion.” Many of the decisions contain an historical resume on the subject, but it is unnecessary to go into this. Mr. Minor, IY Minor Inst. 192-206, covers the history of the legislation in Virginia and shows that the statutes of that state, which were adopted into this State, were the outgrowth of the deplorable-conditions into which on account of bad legislation the profession of the law had fallen. It is sufficient to say that the doctrine of the cases cited is 'well founded.

We axe not disposed here to question the validity of the statute of this state, or the power of the legislature in enacting it. We treat it as valid, and as a reasonable exercise of a power generally conceded to it by the courts. Indeed the statute is nothing more than a declaration of the qualifications which in all times have been considered essential to admission to the bar, namely, legal learning and good moral character.

In the light of the authorities what construction should be given our statute? Having accepted the duties of executing the law we should unquestionably give it a construction1 which will best accomplish its object. It could have but one object, namely, to bar out incompetent persons, and persons not possessing the requisite moral character befitting officers of the courts. Previous legislation may cast some light on the subject. By the Code of 1868, chapter 119, any two judges of the courts of this State were authorized to grant licenses in 'writing to practice law in the courts thereof to any person who should on examination be duly qualified, and who should produce the certificate of the board of supervisors of the county where he had resided for one year preceding, that he was a person of honest demeanor, and was over twenty one years of age. By the acts of 1872-3, any three judges composed either in part or in whole of the Supreme Court of Appeals were authorized to grant such license upon the same conditions. By the act of 1-882 the applicant as a condition to being examined by such judges and obtaining from them such license 'was required to appear before the county court of the county in which he had resided for the last preceding year, and prove to the satisfaction of such court that he was a person of the requisite moral character, of the requisite age, etc., of which the court was required to enter an order of record, and to produce to the judges a certified copy of such order. This was the last enactment preceding our present statute. While all of these statutes require of the applicant legal learning, and proof of his good moral character to be shown by a certified copy of the order of the county court, the present statute imposes the whole duty of prescribing rules and regulations for the examination of applicants for admission, and the granting of license to practice law in the courts, upon this Court as a court. Did the legislature mean by imposing this duty upon the Court, that it should accept such order as conclusive — res judicata — on the question of moral character, though it might have before it the strongest evidence that at the time of obtaining such order the facts had been suppressed and that the applicant was then guilty of such gross immorality as should bar him from admission to practice in the courts P If so, tlie Court in granting the license 'would be placed in the attitude of being compelled in one instant to authorize an applicant to exercise an office which immediately afterwards, on motion for his admission, it would upon the highest moral grounds be bound to deny him. It could not have been intended to put the Court in any such plight. If the certificate would not bind the Court on motion or application for admission to practice, why should it be treated as more than prima facie .evidence of the requisite moral character on an application for license ? This is the only effect the order of the county court could have if the applicant should present it along with a diploma from the law school of the University. True the statute says that any person who shall produce a duly certified copy of such order, and also such diploma shall upon presentation thereof be entitled to practice in any and all the courts of this State, but can it be seriously contended that the courts would be bound to admit such person, if found unfit in point of moral character? We can not assume the legislature thus intended to impose unworthy persons upon the courts. The contrary is to be presumed.. We must construe the statute as intended to be in aid. of the courts, and to leave this Court, upon an application for license, and all the courts upon application for admission to practice, free to treat the order of the county court simply as prima facie evidence, and to institute any other and further inquiry into the moral character of the applicant deemed necessary. Otherwise the act of the legislature would have to be declared an encroachment on the judiciary, and void on constitutional grounds. This conclusion is supported by the principles enunciated by the New Jersey court in a case styled, On Application for Attorney’s License, 21 N. J. L. 345, and by the reasonings in the dissenting opinions of Judges Brown and Walker in the North Carolina case of In Re Applicants for Attorney’s License to Practice Law, supra. As is well said in that case by Judge Brown, following the New Jersey case: “The purpose of the act being to exclude men of bad character from the profession, it follows logically that certificates of good moral character are merely a preliminary requi- , site before the applicant can be examined as to his legal acquirements. They make out a prima facie case, and, if uncon-tradicted, entitle the applicant to his license if he passes the legal examination. • The statute only prescribes what legal effect shall be given to a particular species of evidence if it stands alone ánd uncontradicted.” -

But many decisions are cited for the proposition that in the constructions of statutes the word may will be construed to be synonymous with the word shall when the public .or a third person have a claim de jure that the power should be exercised. The following are some of the eases. Bansemer v. Mace, 18 Ind. 27; Kane v. Footh, 70 Ill. 587, 590; Mayor, &c. v. Furze, 3 N. Y. 612, 615; Newburgh Turnpike Co. v. Miller, 5 Johnsons Ch. (N. Y.) 101, 113; Brokaw v. Com’rs, 130 Ill. 482; Fowler v. Pirkins, 77 Ill. 271; Hayes v. County of Los Angeles, 99 Cal. 74; Ex-parte Lester, 77 Va. 663. The language of Chancellor Kent in Newburgh Turnpike Co. v. Miller, supra, is that “the word may , means must or shall only in eases • where the public interest and rights are concerned, and where the public or third persons have a claim, de jure, that the power should be exercised.” This rule of construction as will be found by reference to the cases cited, is to enable the courts 'to' effectuate the will of the legislature, and for no other purpose. Can it be said tbat tbe legislature intended, or that the interests of the public demand the licensing of incompetent and immoral persons to practice law in the courts? Certainly not. Can it be said that an applicant, because he has produced prima facie evidence of his compliance with the rules of the Court, and the provisions of the statute has a de jure right to a license to practice? We have never understood this to be law. After he has obtained license his status is somewhat different; He is then entitled under the law .to apply for admission to practice in all the courts, a right perhaps which can not be taken from him except by appropriate legal proceedings. But a court would not be bound to admit him to practice if on proper showing he should be found not of the requisite moral character. And after admission it could for the same cause strike his name from its rolls. 3 Am. & Eng. Ency. Law, pp. 382-3-4; Cohen v. Wright, 22 Cal. 293, 320; In Re Garland, supra, 378; In Re Splane, supra; Ex-parte Secombe, supra; In Re Day, supra; State v. McClaugherty, supra; State v. Hays, supra; People v. Kavanaugh, 220 Ill. 49, 77 N. E. 107. In Cohen v. Wright, the California court says: “The right is subject to the condition that the attorney shall possess a blameless moral character and it is forfeited upon a breach of that condition.” It is said in 3 Am. & Eng. Ency. L., at page 287, on the authority of some of the cases cited that: “It lies within the power of the legislature to prescribe the qualifications required to admission to the bar, and the courts will have no authority to admit any person not possessing the required qualifications.” “But the admission of an applicant to practice is a judicial act, and the attorney, when admitted, is an officer and member of the court; the legislature has no power, therefore, to provide that any person possessing certain qualifications must be admitted; it cannot assume judicial powers; and in every Gase the courts are vested with discretion as to whether any applicant is entitled to admission.”

A right to a license or to admission to practice law is not a right de jure given by statute, and we do not think the rule of construction invoked has any application to the case in hand. Ex-parte Lester, 77 Va. 663, relied on by counsel, involved a right given by statute to obtain a liquor license. The statute there was a revenue measure, in which the public, as well as the applicant, had an interest. In that case may was construed to mean must. But that ruling can have little if any application to this case.' Such is the case also of Leigton v. Maury, 76 Va. 870. As is held in Harrison v. Wissler, 98 Va. 597: “It is only where it is necessary to give effect to the clear policy and intention of the legislature” that the word may can be con'strued to mean must. The case we have here-is more like the case of Ex-parte Yeager, 11 Grat. 655, 656, involving a statute authorizing the granting of a license to keep an entertainment, and providing that if the Court be of the opinion that the applicant is sober -and of good character, and will probably' keep a house orderly and such as the law requires it may grant such license. It was held in that case that the word may in the statute was used in its popular sense — that is in its permissive' sense — and was employed to grant an authority coupled with a discretion, which discretion from its very nature did not admit of review by an appellate court. In Echols v. Brennan, 99 Va. 150 (37 S. E. 786, 787), the Virginia court held that the word “may” in the, statute providing that where there has been no* proceedings in a cause for five years the court in its discretion may dismiss, and may direct the order to be published in such* newspaper as it may designate, is not bound to be construed' “shall,” as the public has no interest in such publication, and no party has a claim of right to such publication. The rule* on this subject is best expressed by Mr. Justice Story of the Supreme Court of the United States, in Minor v. The Mechanics Bank of Alexandria, 1 Peters 46, 64, as follows: “The argument of the defendants is, tliat .(may/ in this section, means 'must’; and reliance is placed upon a well known rule in the-construction of public statutes, where, the word cmay/ is often construed as imperative. Without question, such a construction is proper, in all cases where the legislature mean to impose a positive and absolute duty, and not merely to give a discretionary power. But no general rule can be laid down upon this subject,, further than that that exposition ought to be adopted in this,, as in other cases, which carries into effect the true intent and' object of the legislature in the enactment. The ordinary meaning of the language, must be presumed to be intended, unless: it would manifestly defeat the object of the provisions.”

For the reasons given the motion of applicant to quash and dismiss has been overruled.

After this ruling of the Court applicant tendered and filed his sworn answer to the charges preferred against him. The only evidence' submitted, except sundry ex-parte affidavits of applicant’s previous good character and the affidavit of E. G. Hubbard as to the value of his property, is the record in the chancery cause of applicant v. Topping, vouched by protestants in support of said charges.

We appreciate the importance of our decision to the applicant. But the case presented imposes upon us a solemn duty, involving as it does not only his interests and future prospects, but the interests of the whole State in the honor and purity of the bar, and the administration of justice in-the courts. We are impressed, tlitiugh. not unduly, with the fact that this is not an ordinary lawsuit, in which the protestants are contending for some personal or property right. The bar association at the seat of the State Government, composed of men of the highest standing in the profession, who could have been inspired thereto by no other possible motive than to maintain the standing of the profession, and to protect the courts against imposition, and after a thorough investigation of the facts, have petitioned this Court not to grant a license to applicant. We can not turn a deaf ear to this appeal. We must assume the responsibilities and discharge the duties of our office.

The answer of the applicant does not deny that he swore as a witness in both instances substantially as charged. ‘ He could not have done so in the face of the record. He does not deny but admits in his evidence given at Charleston, that at the time he testified at Morgantown he had sold his property on December 2, 1909, and had on December 6, 1909, with his wife, acknowledged and delivered the deed therefor to the attorney for the purchaser. Nor does he deny that on December 31, 1909, he met the same attorney at a hotel in Charleston, where they together calculated the amount that was coming to him after deducting a balance of purchase money he still owed on the property, and which was secured by a vendor’s lien. He does not deny but admits that this amount was there tendered to him in cash, and that at his request the attorney agreed to deposit the amount to his credit in bank, and that it was so deposited, not by the attorney, but at the latter’s request by another representative of the purchaser. The only explanation offered by the applicant is that at the time he testified, January 10, 1910, he had not received from the bank the pass book which the attorney had said he would have mailed to him, and had hot received a note which the attorney agreed to take up and mail him. Noth: ing had in fact intervened to effect his sale and conveyance. The money had then been deposited to his credit, and the bank pass book had been mailed to him, but applicant denies having received it until he returned to Charleston. There is evidence in the cause, not strictly of a legal character — a letter from the postmaster at Morgantown — showing that mail from the same bank had been delivered to applicant before he left that city. Whether or not he had received the pass book is not very material,' for the evidence alluded to and other evidence, with many inculpatory facts and circumstances shown in evidence, satisfies us beyond any doubt, that at the time applicant gave his testimony on January 10, 1910, he had, and that he well knew he had parted with the title to his property, and that his evidence was untrue. It is unnecessary and impassible to detail all the evidence bearing on this question. There was a period during which this deed was held in escrow, that was from December 6, 1909, the date it was acknowledged and delivered to the attorney, to the date applicant’s seat in the council was vacated and Topping elected in applicant’s stead, and perhaps also from that time on up until December 31, 1909, when the transaction was closed by payment of the purchase money into bank to applicant’s credit. The testimony of the attorney, denied by applicant, is'that it was understood that he was to hold the deed .until applicant’s seat in the council should be declared vacant. A most significant and convincing fáct in connection with this charge of false swearing testified to by •the attorney holding the deed and not denied by applicant is, that after he had given his evidence, January 10, 1910,' he asked permission to change the deed to a later date.

We are also satisfied, beyond a reasonable doubt, that applicant’s evidence that his sale and conveyance of his property had no connection with or relation to his vacating his seat in the city council, was false. He confesses to numerous meetings in private places with various liquor dealers and other persons interested in getting him to vote for license, or to vacate bis seat in council, and that he had negotiated with- at least three of them for a sale of his property and had discussed with them the subject of the sale thereof, and of removing from his ward, or from the City of Charleston, and to whom also he had made various propositions of sale or trade,, involving from $300 to $1000 advance on the price which he .had paid for the property a few months before. He practically admits that he requested the attorney to whom he delivered the deed not to record it for several months, and the attorney says it was understood he was not to pay over the money to the applicant until applicant’s seat in the council had been vacated. The deed was made to-U. G. Young, but W. B. Geary-was the real purchaser. While applicant denies that he knew this, yet on December 11, 1909, only five days after he had acknowledged and delivered his deed to Geary’s attorney, he wrote Geary from Morgantown as follows: “Morgantown, W. Va., Dec.. 11, 1909. Mr. W. B. Geary, Dear Sir: See your attorney and tell him I did not get to see President McCorkle before I left, and to tell him to state the fact to the council, that I am here with my wife for an indefinite time to finish my law course, and for some one to make a motion to declare my place vacant, as I do not know when I will be back. Have it thoroughly understood so there will be no hitch about it, for my wife may go back in a few days, or I might have to go back for some purpose myself. Be sure and attend to it Thursday night, as I want it off hand at once. I talked with Mont Topping in Parkersburg he said he would look after it. You must wire me in care Tiotel White’ at my expense as soon as the place is filled Thursday night, and who gets it. I may stay here till April, but I might be called home at any time, so attend to this promptly. ’ Very truly,-.” Applicant’s explanation of this letter is that Geary called him over the telephone and annoyed him, wherefore this letter. But the evidence leaves no room for doubt that the real reason for writing Geary was to get the purchase money for his property released. Other letters and telegrams to the president of the council and other persons, and much other evidence in the cause, all assure us of the correctness of our conclusion.

Lastly, did the applicant as charged corruptly sell out his office? Pie denies it. But there is much evidence besides that already referred to leaving no room, for doubt that he did. That the agreement was that he was not to get the purchase money for his property until his seat in the council was either resigned or declared vacant there is not a shadow of doubt. He .attempts to support his denial of this mainly-by the affidavit of Mr. Hubbard as to the present value .of the property. Hubbard, a good business man, had sold this propel^, to applicant, February 24, 1908, at the price of $3500.00. The material part of his affidavit is: “This lot was afterward, and before the 2nd day of December, 1909, improved in many -ways, including sewer connections, and affiant considers it is, and was on the 2nd of December, 1909, worth in excess of $4000.00, and perhaps all of $4500.00.” This affidavit is guarded. So far as the evidence discloses all of applicant’s negotiations for the sale of his property was with persons interested in getting his vote for license, or getting his seat vacated, and another installed in ‘ his place, who favored granting license. The evidence convinces us that applicant had offered this property to one or the other of these persons all the way from $3800 to $4500, the price finally obtained, and that it was in consideration of this big round price that he was induced to sell and go away, that the purposes of those whom he admits had on other occasions undertaken to bribe him to lay down and desert his office might be accomplished.

The fact that applicant had refused diréct offers of bribery, had not directly resigned, (unless he actually sent the telegram of resignation denied and branded by him as a forgery), and had never voted for license, were all “urged upon us in argument to absolve applicant from the charges of wrong doing. It was plainly not applicant’s jilan to resign, or sell out his office directly, but indirectly. In this he showed some shrewdness. His plan was to go away and have his seat declared vacant, and the consideration for the betrayal of his trust covered into the price for his property, and thus accomplish by indirection what he feared to-do directly. At the meeting of council on the night of December 6, 1909, the day on which he acknowledged and delivered the deed for his property, and just béfore leaving for Morgantown the following morning, he took the precaution to say to some of his fellow councilmen that that was the last meeting be would attend, tliat be was going away for an indefinite stay. It is quite natural that one occupying bis position should want to cover bis transactions with a proscenium curtain; but the Court seeing from the evidence now before it what the actors were doing behind the proscenium, can not be influenced by the things done to shade the real transaction.

In council there was no substantial disagreement between us as to what the evidence proves. We divided on the question of jurisdiction to go behind the order of the county court on the question of the applicant’s moral character. Three of us were and are still of the opinion that that order is only prima, facie evidence, and that its force as evidence has been wholly overborne by the other evidence submitted to us.

Our conclusion, though with great regret, is to refuse the _ applicant license upon his present application.

Justice, however, may always be tempered with mercy; and after a reasonable lapse of time, and a satisfactory showing that the applicant has repented of his 'wrong, and is living the exemplary life and maintaining the good character which numerous affidavits filed show he bore prior to the offences charged against him, he will be entitled to the favorable consideration of this Court, and this decision shall in no way conclude us upon a subsequent application.

License Refused.