In Re Steen

134 So. 67, 160 Miss. 874, 1931 Miss. LEXIS 176

• Court: Mississippi Supreme Court
• Decided: April 13, 1931
• Docket: Nos. 29417, 29416, 29418-29420.
• Status: Published

Opinions

Griffith, J.,

delivered the opinion of the court.

Acting under a resolution adopted by the State Bar Association, a special committee of that association has instituted in this court a proceeding for the disbarment of the respondent Steen, who is a member of the bar here. The charge against respondent is the bribery by or through him of a state officer. If this charge be true, it would follow that respondent would with equal readiness bribe a witness, or a juror, or, if possible, a judge of a court, wherefore, instead of being a fit minister in the law he would be a menace to its administration.

But the sufficiency of the charge as stating an adequate ground for disbarment is not questioned. The challenge is to the jurisdiction of this court; and the contention is, first, that this court, having no jurisdiction except that which “properly belongs to a court of appeals,” can take no cognizance of this proceeding because filed here in the first instance, instead of having been instituted in a circuit or chancery court; and, second that, if this court has jurisdiction, it is only concurrent with those courts and the matter should be transferred to a court of original jurisdiction of the county of the residence of respondent.

When it was first announced in the public press that the association proposed to institute these proceedings in this court instead of the circuit or chancery court, there was, perhaps, no member of this court who did not at once reject the thought, although, of course, only as a first impression, that this court could or would take jurisdiction or entertain the proceedings in any manner except upon appeal from a nisi prius court. So long unbroken had been the ordinary routine of acting here only upon records certified from tribunals of original jurisdiction, and so long had the members of this court been trained under the oft-repeated pronouncement that “the proper jurisdiction of the supreme court is only to review and revise the judicial action of an inferior tribunal, and the exercise of such incidental jurisdiction of a quasi-original character as is necessary to preserve its dignity and decorum and to give full and complete operation to its appellate powers,” that it hardly seemed possible, upon first approach, that the court could be shown to have the power and duty to entertain any such a proceeding as this, filed here in the first instance.

But, when the proceedings were actually filed here and we began the task of investigation, we soon found that, in order to reject the jurisdiction, we would not only have to overrule expressly our own case of Ex parte Brown, 1 How. 303, but we would have to qualify the language of, and in that respect in the main overrule, Ex parte Cashin, 128 Miss. 224, 90 So. 850:, and we would be compelled also in some manner to do away partly with the language of section 3703, Code of 1930, and then, all this done, we would find ourselves standing alone as the only supreme court in this country which had denied the jurisdiction, save only in one or two cases where recognition was accorded to statutes which had expressly conferred the sole jurisdiction on other courts. We have examined nearly fifty cases from Maine to California where the supreme courts'have taken jurisdiction in the first instance of disbarment proceedings; and, in the absence of restrictive statutes, we have found only one case which denied the jurisdiction, namely, In re Waugh, 32 Wash. 50, 72 Pac. 710, and that case was subsequently qualified, and in effect overruled, by the same court, In re Robinson, 48 Wash. 153, 92 Pac. 929, 15 L. R. A. (N. S.) 1525, 15 Ann. Cas. 415.

The answer of respondent to this impressive, not to say overwhelming, array of cases upholding the jurisdiction, is that, in nearly all the states from which these cases come, the power to admit to the bar is vested in the supreme court of the state, that it is-upon this basis, and this foundation only, that all those courts have justified their jurisdiction to disbar; and it is argued that this is, in fact, the true foundation for the jurisdiction taken in the Brown case, supra, that is to say, at the time that case was decided the power to admit was vested in the supreme court of the state, then called the “high court.” In the examination of this contention by respondent, we have taken some thirty of those cases, which seem to be the more often cited, and which may therefore be classed as leading, and have endeavored to group them approximately into four classes: (A) Those wherein the language of the court would indicate that the jurisdiction of the supreme court to disbar was considered as derivative of its power to admit; (B) those wherein the jurisdiction has been placed upon the ground that the power and duty is inherent in the court as one ■of the constitutional superior courts of the state; (C) those wherein both the foregoing grounds are referred to; and (D) those wherein neither of said grounds are expressly mentioned; and to the list we add (E), those which, although upholding the jurisdiction of the supreme court, hold further that the appellate court is not obliged to exercise the jurisdiction in all cases; and we further add (F), a list of cases on appeal which contain valuable discussions of the general principles, some of them carrying interesting and pertinent historical reviews:

A. State v. Edmunson, 103 Or. 243, 251, 204 Pac. 619; Sanborn v. Kimball, 64 Me. 140; In re Breen, 30 Nev. 181, 93 Pac. 997, 17 L. R, A. (N. S.) 572; State Bar Commission v. Sullivan, 35 Okla. 745, 754, 131 Pac. 703, L. R, A. 1915D, 218; People v. MacCabe, 18 Colo. 186; 32 Pac. 280; 19 L. R. A. 231, 36 Am. St. Rep. 270.

B. State ex rel. v. Reynolds, 252 Mo. 378, 380, 158 S. W. 671; In re Raisch, 83 N. J. Eq. 108, 109, 90 A. 12; In re Cohen, 261 Mass. 484, 159 N. E. 495, 55 A. L. R. 1309; In re Stolen, 193 Wis. 602, 214 N. W. 379, 216 N. W. 127, 55 A. L. R. 1355; In re Sizer, 300 Mo. 369, 377, 254 S. W. 82; State v. Woerndle, 109 Or. 461 466, 209 Pac. 604, 220 Pac. 744.

C. The People v. Berezniak, 292 Ill. 305, 315, 127 N. E. 36; In re Thatcher, 80 Ohio St. 492, 653, 656, 89 N. E. 39; In re Gorsuch, 113 Kan. 380; 384, 385, 214 Pac. 794; In re Olson, 116 Wash. 186, 189, 198 Pac. 742; In re Lambuth 18 Wash. 478, 51 Pac. 1071; In re Simpson, 9 N. D. 379, 404, 83 N. W. 541; In re Robinson, 48 Wash. 153, 92 Pac. 929, 15 L. R. A. (N. S.) 525, 529, 15 Ann. Cas. 415.

D. In re Ashley, 146 Cal. 600, 80 Pac. 1030; In re Wellcome, 23 Mont. 140, 58 Pac. 45; People v. Hanson, 316 Ill. 502, 507, 147 N. E. 431; In re Macy, 109 Kan. 1, 196 Pac. 1095, 14 A. L. R. 848; People v. Green, 7 Colo. 237, 3 Pac. 65, 49 Am. Rep. 351; In re Tyler, 78 Cal. 307, 20 Pac. 674, 12 Am. St. Rep. 55; In re Badger, 4 Idaho 66, 35 Pac. 839; In re Freerks, 11 N. D. 120, 90 N. W. 265; In re Duncan, 64 S. C. 461, 42 S. E. 433; In re Lentz, 65 N. J. Law, 134, 46 A. 761, 50 L. R. A. 415; In re Evans, 22 Utah, 366, 62 Pac. 913, 53 L. R. A. 952, 83 Am. St. Rep. 794; Ex parte Brown, 1 How. 303, 306; In re Whitehead (Eng.), L. R. 28, Chan. Div. 614.

E. In re Thatcher, 80 Ohio St. 492, 656, 89 N. E. 39; In re Ashley, 146. Cal. 600, 80 Pac. 1030; In re Freerks, 11 N. D. 120, 135, 90 N. W. 265; Legal Club v. Light, 137 Va. 250, 119 S. E. 55; People ex rel. v. Berry, 17 Colo. 322, 29 Pac. 904.

F. Brooks v. Fleming, 6 Baxt. (65 Tenn.) 331, 337; State v. Kirke, 12 Fla. 278, 95 Am. Dec. 314; In re Smith, 73 Kan. 743, 85 Pac. 584; Smith v. State, 1 Yerg. (Tenn.) 228; State v. Mosher, 128 Iowa 82, 103 N. W. 105, 5 Ann. Gas. 984; In re Durant, 80 Conn. 140, 67 A. 497, 10 Ann. Cas. 539; Bar Ass’n v. Casy, 211 Mass. 187, 97 N. E. 751, 39 L. R. A. (N. S.) 116, Ann. Cas. 1913A, 1226; People v. Culkin, 248 N. Y. 465, 162 N. E. 487; 60 A. L. R. 851; Ex parte Cashin, 128 Miss. 224, 90 So. 850, 851; Ex parte Wall, 107 U. S. 265, 2 S. Ct. 569, 27 L. Ed. 552; In re Hardwick (Eng.) L. R. 12. Q. B. 148; Ex parte Brounsall (Eng.) 2 Cowp. 830, 98 Eng. Reprint, 1385.

The inescapable conclusion derived from all this wealth of authority is that the text is sound and accurate when in 2 Thornton on Attorneys, sections 765 and 767, it is stated that there is no necessary connection between the power to admit to practice and the power to disbar for subsequent misconduct, and that an appellate court possesses the latter power on a procéeding instituted therein. The authorities, in our opinion, overwhelmingly sustain the proposition that “the supreme court may, as a part of its inherent jurisdiction, investigate the conduct of attorneys at law and remove them from office . if found guilty of conduct incompatible with fundamental honesty, or which discloses a moral tur-' pitude inconsistent with the standards necessary to be maintained among the members of the legal profession. ’ ’

It is an undoubted fundamental principle, as applied to the superior governmental establishments created by the Constitution, that each of these establishments has the power, implied in the grant of existence, to take such essential measures of preservation and protection as will insure to that establishment its continued and unimpaired existence, not only, but that it shall have the inherent or implied power to avail of such necessary means as to insure the beneficial execution of the high governmental duties imposed on the particular superior establishment or department thus concerned. For it is not to be supposed that a Constitution designed to stand for all time should contain essential institutions and superior departments which would be unable to-preserve their existence and usefulness in like perpetuity with the Constitution itself, or should, without power' to forfend, be subject to any such intrusions or invasions upon the rightful performance of its duties as would render it incompetent to the great objects for which the constitutional department or institution was created.

And there could hardly be any serious denial of the assertion that the trained and learned lawyer of dependable moral character is an indispensable assistant in the operation of the intricate machinery of efficient government, especially in the courts, to say nothing of the necessity of his presence in the manifold and almost infinite complexities of commercial and civil life. Gratitude for the past would incline us to make this admission, even if candor and common observation in respect - to the present did not compel it. Indeed, the Constitution itself has recognized the fact, and has declared that the recognition shall be permanent, for it has, by apt provision, made the continuance of the superior courts, therein established conditional, in effect, upon the continued existence of the legal profession, because in its sections 150' and 154, Const. 1890, it expressly ordains that no person shall be eligible to the office of judge of the supreme court, of the circuit court, or of the chancery court, who shall not have been a\ practicing attorney and citizen of the state for five years.

• Since, then, the learned lawyer of trustworthy character is essential not only to the continued existence of these three superior courts, but is necessary, as well, to the efficient and beneficial performance of the appointed duties of said courts, it follows inevitably, under the principles stated, that the disciplinary power of disbarment or suspension belongs to each of them as inherent in its creation, establishment, and organization, as something which in the nature of things, belongs to them and to each of them. And thus the jurisdiction and the correlative duty falls even within the rigid definition laid down in Fuller v. State, 100 Miss. 811, 817, 57 So. 806, 807, 39 L. R, A. (N. S.) 242, Ann. Cas. 1914A, 98, wherein it was said that “the inherent powers of a court ■ are such as result from the very nature of its organization, and are essential to its existence and protection, and to the due administration of justice.” And thus it is, too, that we may now, after the elapse of nearly one hundred years, look back upon the Brown case, and can affirm the soundness of the pronouncement therein contained that the supreme court has the power, with or without the aid of statute, to strike from the roll of attorneys, and that the power is incidental to all superior courts, and “is necessary to the preservation of decorum, and the respectability of the profession;” and we can affirm the accuracy of conception reflected in the language of this court in the Cashin case, where it is stated that “a proceeding to disbar an attorney is neither a civil nor a criminal action; its purpose is not to punish, but to annul the right of the attorney to practice, which is for the protection of the court. . . '. It is a proceeding sui generis, on account of the relation of the attorney to the court. ‘The power to declare this forfeiture is a summary one inherent in the courts, and exists . that the administration of justice may he safeguarded and the courts • and the public protected from the misconduct or unfitness of those who are licensed to perform the important functions of the legal profession. . The action of the court in the exercise of this power is judicial in its character, but the inquiry made is “in the nature of an investigation by the court into the conduct of one of its own officers, not the trial of an action or suit,” and the order entered is but an exercise of the disciplinary jurisdiction which it has over such officers.’ . . It is an exercise of judicial power in the regulation of the court’s own officers, and . . . this power is therefore at once necessary to protect the court, preserve the purity of the administration of justice and maintain the integrity of the bar.”

It will be noticed that we have made but little reference to section 3703, Code 1930, which provides that the power to disbar an attorney may be exercised “by any court in which he may practice.” This brevity of reference to the said statute has been because we would gravely doubt whether such a statute of its sole force, rather than as declaratory of an existent power, could confer the jurisdiction on this court. We must not be understood, however, as intimating an opinion .that the legislative authority to regulate this subject does not include the power to vest the exclusive jurisdiction of disbarment in the trial courts or in one or more of them, if the legislature should hereafter deem it wise so to do, and should enact an adequate statute to that end.

Turning’ now to the alternative feature of the motion of respondent that, in the event this court holds that the jurisdiction in the Supreme Court is concurrent with that in the circuit and chancery courts, this-matter be transferred to one or the other of those courts in the county of the residence of respondent, we have fully noted the grounds upon which this course is urged. These may be briefly summarized as follows: (1) That it is the general policy of our law that in personal actions, not local in their nature, the defendant has the right to be heard in tribunals of the county of his residence, and thereupon (2) the right of appeal, so that this court of appeals can review a completed record in the calm and deliberate atmosphere which belongs to an appellate court, and which often is impossible in a nisi prius tribunal; (3) that this court of appeals has no appropriate machinery for the hearing here of a matter such as this, and to so undertake, along with the several others of like character, recently filed in this court, would entrench seriously upon the regular docket of this court and divert its course from the prompt dispatch of its appellate business; and (4) that it would be oppressively expensive, ruinous in the time required of respondent away from his home and business, if obliged to attend at the state capital.

We have considered most maturely the matters just mentioned, and may say at once that they have constituted the most serious obstacles to the conclusion which we have reached. But, having been compelled yield to authority and.to admit jurisdiction, we can discover no legitimate power, and it would be unbecoming in us, to rid ourselves of this matter by transferring it to another court, for that would be to hold that we have jurisdiction and immediately and as a part of the same opinion to wholly decline it. We hold, it is true, that we have concurrent jurisdiction with the circuit and chancery courts; but, so holding, we can do no less than accept our fair share of these investigations, and may not, by the exercise of mere power, put off all this disagreeable business upon our brethren of the other su perior, courts. Moreover, the charge here is of the bribery of a state officer. The inquiry therefore is one which is state wide in its essential nature; it annexes itself to the very precinct and environs of the seat of the state government.

We recognize, and are in accord with, the general policy of our law contended for, that in personal actions transitory in their nature the defendant has the general right to be heard in the local tribunals of his residence; but we have endeavored, under the authorities, to show that this is no action at law or suit in equity. It is not a litigation, but is an investigation or inquisition, conducted under the direction of the court, in the pursuit of which there are no adversary parties. True, the proceedings have been initiated by the State Bar Association, but we make no doubt that, instead of that body being adversary here, the majority of its members would be most happy if at the end of that investigation the charges shall be found to be unsupported in actual fact, and that the respondent shall thereupon be honorably discharged from the rule. But even if, in respect to venue, the proceedings are to be likened to a suit, then by an analogy equally admissible here, it could be said that those who exercise public or quasi-public franchises and privileges can make no just objection to being held to answer within the locality where the cause of action accrued, or the act complained of occurred, or was designed to become finally effective.

In the Cashin case, supra, this court has said that, in disbarment proceedings, the court must and will exercise the power to determine the method of procedure to be followed, affording all reasonable opportunity to be heard, and for a fair hearing, without oppression or injustice. This course we shall endeavor, prudently and impartially, to pursue now, and that, without undue expense or any unreasonable requirement of attendance here, if indeed any requirement of attendance here at all shall be made,, except in the arguments. As to th£ procedure, we shall be willing to hear counsel upon any agreement they be disposed to make in that respect, and, if available and consonant to our sense of propriety, we may, in all probability, accept and observe agreements in that regard. Otherwise we shall outline and announce the procedure when the pleadings have been settled.

The judgment of the court is that the motion to dismiss, and, in the alternative, to transfer, is overruled. And, unless he has already done so, respondent is required to answer to the merits on or before April 23, 1931, and the committee may move in respect to the answer, if deemed by it requisite, on or before May 2, 1931; the procedure in the two foregoing respects to be likened to answers in chancery and to the motions to strike, as outlined by sections 378', 379, 380-, 383, 386 and 389, Code 1930'; copies of all papers filed are to be sent, under the usual rules, to counsel. Tuesday, the 5th day of May, 1931, at nine-thirty a. m., is hereby fixed as the day when the court will sit to hear this matter further on the pleadings and on the procedure. So ordered. '

Memorandum; — The opinion and decision on the above motion also decides the petitions for disbarment and motions to dismiss proceedings or transfer, in the following; No. 29416, J. C. Walker; No. 29418, Carl Marshall; No. 29419, L. C. Franklin; No. 29420, J. H. Howie.

Smith, C. J., and Cook, Anderson, and McGowen, JJ., concur in the opinion.