ANGELLOTTI, C. J.
—The disbarment of the attorney is sought in this matter upon production of a certified copy of the record of conviction of the attorney in the superior court of the city and county of San Francisco of a felony involving moral turpitude. (Code Civ. Proe., secs. 287-289.). -It is conceded in the learned and exhaustive brief filed by the president of the San Francisco Bar Association that an appeal from such- judgment of conviction is pending in the district court of appeal of the first appellate district. The judgment of conviction, therefore, has not become final. We have, then, precisely the case presented in
People
v.
Treadwell,
66 Cal. 400, [5 Pac. 686], decided February 2, 1885. It was there squarely held that during the pendency of an appeal “there is not such a final conviction against the defendant as the law contemplates to justify his removal” merely upon “record of conviction,” and that the proceeding there inaugurated had therefore been prematurely commenced. There has been no change in our statutes which is material in so far as this question is concerned, • the law to-day being substantially as it was when this decision was rendered. The decision was unqualifiedly ap
proved by the court in bank in
McKannay
v.
Horton,
151 Cal. 711, 720, 721, [121 Am. St. Rep. 146, 13 L. R. A. (N. S.) 661, 91 Pac. 598], By these decisions a construction was given to the statutes relative to this matter that we do not feel warranted in disturbing, whatever our views might be were the question a new one. For over thirty-five years this construction has been accepted by the legislature and by the people of the state as giving to the statutes the meaning intended in their enactment. To now adopt a different construction would savor of the enactment of legislation by this court.
[1]
We are satisfied that under the circumstances the decisions should be followed, and that if a change in our law in this respect is deemed desirable that appeal therefor should be made to the .law-making power and not to the courts. We are not to be understood as intimating that we are of the opinion that these decisions are erroneous. It cannot fairly be said that they are obviously wrong, or that a sound public policy
suddenly,
requires a different construction at the hands of this court, if indeed that is a matter pertinent to the discussion. Much is said as to the meaning of the word “conviction,” as used in various other sections of our statutes, with a view of showing that “as ordinarily used” with relation to criminal proceedings “in our constitutional and statutory provisions” it means the entry of the verdict of “guilty” or the plea of “guilty.” This was stated in the concurring opinion in
McEannay
v.
Horton, supra,
the statement being accompanied, in the very same sentence, by the words “and I can see no warrant for concluding that it was used in any other sense in the charter provision under discussion.” The connection in which a word is used often sufficiently shows that it was used in a sense varying from that in which it is ordinarily used, and the effect of the decisions referred to is that it was used in these particular sections providing for the absolute disbarment of an attorney upon the record of his conviction of a felony or misdemeanor- involving moral turpitude as meaning a conviction that has become final, Speaking of the Treadwell case in
McEannay
v.
Horton, supra,
the court, speaking through Chief Justice Beatty, said: “The court held, and properly held, that the proceeding under section 288 of the Code of Civil Procedure could not be instituted until the judgment became final,”
and also: “The decision in Treadwell’s case was clearly right.” While a plausible argument may be made in support of giving a different meaning to the word “conviction,” as used in these sections, there are good reasons in support of the construction already given by the court which, considering the procedure established by the statute and the effect of the judgment summarily given by the disbarring court upon the record of conviction in a superior court or before a justice of the peace, is certainly more in accord with the ordinary conception of fair play and the proper protection of the rights of individuals.
[2]
In the proceeding for disbarment based upon the record of conviction, the judgment which must be pronounced is one of absolute and final disbarment. This disbarment is not an “incident” of the conviction of felony or misdemeanor in the sense that such conviction
ipso facto
removes the attorney from his office, or is a part of the penalty prescribed by the law for the offense of which he was convicted. It is a separate and independent thing (see
McKannay
v.
Horton, supra),
and is not in the slightest degree affected by a setting aside or reversal of the judgment of conviction of felony or misdemeanor. So that unless a conviction
that has become final
was meant, notwithstanding that the judgment is reversed on appeal for substantial reasons, as, for instance, that evidence of guilt of any offense is absolutely wanting, or that the defendant has not been accorded a fair trial on the merits in the lower court, the judgment of disbarment
based solely on the record of conviction
still remains, and the attorney can be restored to his office as an
attorney
and counselor only in the event that the court that has disbarred him
sees fit to grant his application for restoration, something it is certainly not compelled to do solely because of the reversal or setting aside of the judgment of conviction.
It will not do, in reply to this, to say that this court would have the
power
to restore and
ought to restore
in such a case,
if it cannot be compelled to restore.
Unless the attorney has the absolute enforceable right to be restored as a consequence of the setting aside or reversal of the judgment of conviction—in other words, unless the restoration
ipso facto
follows the setting aside or reversal of the judgment of conviction—he is dependent on the exercise in his favor of the
discretion
of this court,
which may or may not be in his favor as he is looked upon as a fit or unfit person to practice law, entirely regardless of the matter of the conviction. Nor will it do to say that the rule that where a judgment is based on a previous judgment, and the previous judgment is reversed or set aside, the second judgment must be set aside, applies here. If the term “conviction” means not the final judgment of conviction, but simply the rendition of a verdict of guilty or a plea of guilty, as is the whole contention of those wrho insist that
People
v.
Treadwell, supra,
was wrongly decided, the attorney is disbarred solely because of the
rendition
of the verdict or the
plea
of guilty, 'and those facts—■ viz., such
rendition
of verdict or plea—remain and constitute the basis of disbarment, whatever be the ultimate result in the case.
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ANGELLOTTI, C. J.
—The disbarment of the attorney is sought in this matter upon production of a certified copy of the record of conviction of the attorney in the superior court of the city and county of San Francisco of a felony involving moral turpitude. (Code Civ. Proe., secs. 287-289.). -It is conceded in the learned and exhaustive brief filed by the president of the San Francisco Bar Association that an appeal from such- judgment of conviction is pending in the district court of appeal of the first appellate district. The judgment of conviction, therefore, has not become final. We have, then, precisely the case presented in
People
v.
Treadwell,
66 Cal. 400, [5 Pac. 686], decided February 2, 1885. It was there squarely held that during the pendency of an appeal “there is not such a final conviction against the defendant as the law contemplates to justify his removal” merely upon “record of conviction,” and that the proceeding there inaugurated had therefore been prematurely commenced. There has been no change in our statutes which is material in so far as this question is concerned, • the law to-day being substantially as it was when this decision was rendered. The decision was unqualifiedly ap
proved by the court in bank in
McKannay
v.
Horton,
151 Cal. 711, 720, 721, [121 Am. St. Rep. 146, 13 L. R. A. (N. S.) 661, 91 Pac. 598], By these decisions a construction was given to the statutes relative to this matter that we do not feel warranted in disturbing, whatever our views might be were the question a new one. For over thirty-five years this construction has been accepted by the legislature and by the people of the state as giving to the statutes the meaning intended in their enactment. To now adopt a different construction would savor of the enactment of legislation by this court.
[1]
We are satisfied that under the circumstances the decisions should be followed, and that if a change in our law in this respect is deemed desirable that appeal therefor should be made to the .law-making power and not to the courts. We are not to be understood as intimating that we are of the opinion that these decisions are erroneous. It cannot fairly be said that they are obviously wrong, or that a sound public policy
suddenly,
requires a different construction at the hands of this court, if indeed that is a matter pertinent to the discussion. Much is said as to the meaning of the word “conviction,” as used in various other sections of our statutes, with a view of showing that “as ordinarily used” with relation to criminal proceedings “in our constitutional and statutory provisions” it means the entry of the verdict of “guilty” or the plea of “guilty.” This was stated in the concurring opinion in
McEannay
v.
Horton, supra,
the statement being accompanied, in the very same sentence, by the words “and I can see no warrant for concluding that it was used in any other sense in the charter provision under discussion.” The connection in which a word is used often sufficiently shows that it was used in a sense varying from that in which it is ordinarily used, and the effect of the decisions referred to is that it was used in these particular sections providing for the absolute disbarment of an attorney upon the record of his conviction of a felony or misdemeanor- involving moral turpitude as meaning a conviction that has become final, Speaking of the Treadwell case in
McEannay
v.
Horton, supra,
the court, speaking through Chief Justice Beatty, said: “The court held, and properly held, that the proceeding under section 288 of the Code of Civil Procedure could not be instituted until the judgment became final,”
and also: “The decision in Treadwell’s case was clearly right.” While a plausible argument may be made in support of giving a different meaning to the word “conviction,” as used in these sections, there are good reasons in support of the construction already given by the court which, considering the procedure established by the statute and the effect of the judgment summarily given by the disbarring court upon the record of conviction in a superior court or before a justice of the peace, is certainly more in accord with the ordinary conception of fair play and the proper protection of the rights of individuals.
[2]
In the proceeding for disbarment based upon the record of conviction, the judgment which must be pronounced is one of absolute and final disbarment. This disbarment is not an “incident” of the conviction of felony or misdemeanor in the sense that such conviction
ipso facto
removes the attorney from his office, or is a part of the penalty prescribed by the law for the offense of which he was convicted. It is a separate and independent thing (see
McKannay
v.
Horton, supra),
and is not in the slightest degree affected by a setting aside or reversal of the judgment of conviction of felony or misdemeanor. So that unless a conviction
that has become final
was meant, notwithstanding that the judgment is reversed on appeal for substantial reasons, as, for instance, that evidence of guilt of any offense is absolutely wanting, or that the defendant has not been accorded a fair trial on the merits in the lower court, the judgment of disbarment
based solely on the record of conviction
still remains, and the attorney can be restored to his office as an
attorney
and counselor only in the event that the court that has disbarred him
sees fit to grant his application for restoration, something it is certainly not compelled to do solely because of the reversal or setting aside of the judgment of conviction.
It will not do, in reply to this, to say that this court would have the
power
to restore and
ought to restore
in such a case,
if it cannot be compelled to restore.
Unless the attorney has the absolute enforceable right to be restored as a consequence of the setting aside or reversal of the judgment of conviction—in other words, unless the restoration
ipso facto
follows the setting aside or reversal of the judgment of conviction—he is dependent on the exercise in his favor of the
discretion
of this court,
which may or may not be in his favor as he is looked upon as a fit or unfit person to practice law, entirely regardless of the matter of the conviction. Nor will it do to say that the rule that where a judgment is based on a previous judgment, and the previous judgment is reversed or set aside, the second judgment must be set aside, applies here. If the term “conviction” means not the final judgment of conviction, but simply the rendition of a verdict of guilty or a plea of guilty, as is the whole contention of those wrho insist that
People
v.
Treadwell, supra,
was wrongly decided, the attorney is disbarred solely because of the
rendition
of the verdict or the
plea
of guilty, 'and those facts—■ viz., such
rendition
of verdict or plea—remain and constitute the basis of disbarment, whatever be the ultimate result in the case. There seems to us to be no answer to the proposition that the judgment of final disbarment would continue in force, notwithstanding the setting aside or reversál of the judgment pronounced on the conviction of felony or misdemeanor. It is unreasonable to assume that the legislature intended to provide for obtaining this
absolute and final disbarment
of an attorney, thus permanently depriving him of a valuable property right, solely upon a conviction that is
not final,
and which in due course of review is subsequently declared invalid, in the absence of some provision for restoration as matter of course upon the conviction being set aside. The statute makes
“the record
of conviction” the basis of disbarment and conclusive evidence thereon. These words in this connection imply something other than the mere verdict of a jury which may be vacated either by the trial court or on appeal, as entirely without support in the evidence. Under our settled practice of many years they are considered as referring to the judgment pronounced by the .trial court upon a conviction, and likewise, under our decisions, the statute is accepted as contemplating a judgment that has become final. To our minds this is not an unreasonable construction of our statute on the subject, and no good reason appears for overruling the decision by which it was established and has been maintained for over thirty-five years.
It has further been suggested that by reason of the language of sections 287 and 289 of the Code of Civil Procedure, “remove or suspend,” the court may, upon the
certified record of conviction, suspend the convicted attorney, instead of finally disbarring him. This claim has never been made before, and is not now made in the brief filed by the bar association. It has always been understood that conviction of an attorney of a felony or misdemeanor involving moral turpitude, made disbarment incumbent, without any discretion in this court to give
other
judgment.
[3]
And this, we think, must be so, in view of section 299 of the Code of Civil Procedure, which prescribes exactly the judgment to be given in such a case, viz., “that the name of the party shall be stricken from the roll of attorneys and counselors of the -court, and that he be precluded from practicing as such attorney or counselor in all the courts of this state,” while in other cases the judgment “may be according to the gravity of the offense charged; deprivation of the right to practice . . . permanently, or for a limited period.” We do not see how the legislature could have more clearly expressed its determination that the only penalty in such a case is permanent disbarment. And certainly it would not be a ■wise rule that would invest the court with discretionary - power in a matter where the sole evidence upon which it acts is a certified copy of a record of conviction. But we think the matter is definitely settled by section 299 of the Code of Civil Procedure. Of course, this matter goes only to the correctness of the argument we have made in support of the ruling in the Treadwell case, for whatever the penalty that may be imposed that case holds that the proceeding therefor on the record of conviction may not be had until the judgment has become final.
It may freely be conceded that it would be advisable to provide for the suspension of an attorney as to whom a judgment on conviction of felony or misdemeanor involving moral turpitude- has been given, pending appeal or other review of such judgment. Of course, that is a question solely for the legislative department of the state, and the matter can easily be accomplished by appropriate amendment of the statute. All that is suggested as to the necessity of safeguarding the public, as well as the profession itself, so far as is practicable, against the admission or retention as members of the profession of unfit persons is something upoi^. which there can be no difference of opinion, and probably it would assist to some extent in the endeavor to attain this ideal if
the law was so framed as to exclude an attorney from practice pending review of a judgment of his conviction pronounced in a superior court or by a justice of the peace. But we do not think that it would be just or proper to change the law in such a way as to require absolute and final disbarment upon a showing of judgment of conviction of a felony or misdemeanor in a trial court, notwithstanding the pendency of an appeal, unless at the same time provision is made for the restoration of the attorney as matter of course in the event of a reversal or vacating of such judgment.
It is ordered that action upon the certified copy of the judgment presented be deferred pending the determination of the appeal of the attorney from such judgment.
Shaw, J., Wilbur, J., and Kerrigan, J.,
pro tem.,
concurred.