Summary
In State ex rel. Clark v. Shain, 343 Mo. 542, 122 S.W.2d 882, we held that our rules 35 and 36 have the force and effect of a decision of this court and, of course, they are binding on all other courts of the state.
Summary of this case from State ex Rel. Chubb v. SartoriusOpinion
December 20, 1938.
1. CERTIORARI: Conflict. On certiorari to the Court of Appeals to review an opinion of that court in a disbarment proceeding, the Supreme Court is not concerned about the attitude of the Court of Appeals in ruling the case but is concerned only with the question of conflict.
2. ATTORNEYS: Disbarment: Statute. The Legislature, under its police powers, may enact reasonable regulations regarding disbarments and such regulations are for use of the courts, but such regulations are in aid of the jurisdiction of the courts to disbar and not a limitation on such jurisdiction.
The courts are not compelled to proceed under the statutes in a disbarment proceeding, but may proceed under the court rules relating to disbarment.
A holding by the Court of Appeals that the statute relating to disbarment is a reasonable legislative regulation of the exercise by the court of its inherent power to disbar and that the courts are bound by the statute regulating disbarment, in a disbarment proceeding, is in conflict with rulings of the Supreme Court in cases cited.
TIPTON, C.J., LUCAS, HAYS and DOUGLAS, JJ., concur.
ELLISON, J., concurs in separate opinion in which LEEDY, J., concurs.
3. ATTORNEYS: Disbarment: Statute. The Supreme Court is neither interested in nor concerned about the attitude of the Court of Appeals with reference to the Supreme Court in a disbarment proceeding.
OPINION QUASHED.
Clif Langsdale, J.R. Baker, N.T. Cave and E.W. Jones for relators.
(1) The opinion of the Kansas City Court of Appeals is in direct conflict with Rules 35 and 36 of this court in that it holds that an action instituted for the purpose of discipline of an attorney is governed and controlled by Section 11707, Revised Statutes 1929, and succeeding related sections, and not by the rules of this court promulgated for the government and discipline of the members of the bar. Rules 35, 36, Sup. Ct.; In re Richards, 333 Mo. 907, 63 S.W.2d 672; In re Sparrow, 90 S.W.2d 401. (2) The opinion of the Kansas City Court of Appeals is in direct conflict with the decisions of this court in the cases of In re Richards, 333 Mo. 907, 63 S.W.2d 672; In re Sparrow, 338 Mo. 203, 90 S.W.2d 401; Clark v. Austin, 101 S.W.2d 977, and State ex rel. McKittrick v. Dudley Company, 102 S.W.2d 895, in that it holds that an action instituted for the purpose of discipline of an attorney is governed and controlled by Section 11707, Revised Statutes 1929, and succeeding related sections and not by the rules of this court promulgated for the government and discipline of the members of the bar. In re Richards, 333 Mo. 907, 63 S.W.2d 672; In re Sparrow, 338 Mo. 203, 90 S.W.2d 401; Clark v. Austin, 101 S.W.2d 977; State ex rel. McKittrick v. Dudley Co., 102 S.W.2d 895. (3) This is not a lawsuit, but a proceedings by the court to investigate the fitness of one of its officers to longer continue in its service, and the statutes and rules applicable to certiorari in ordinary lawsuits should not be applied; and the court in the exercise of its superintending control of the members of the bar should hold that the writ will lie whenever, upon an examination of the record, this court shall determine that the Court of Appeals has not given force and effect to its rules or properly administered them. State ex rel. Pedigo v. Robertson, 181 S.W. 987; Rigdon v. Ferguson, 172 Mo. 52, 72 S.W. 504; State ex rel. Gilman v. Robertson, 264 Mo. 665, 175 S.W. 610; State ex rel. Jones v. Robertson, 262 Mo. 535, 172 S.W. 21; State ex rel. v. Ellison, 273 Mo. 228, 200 S.W. 1042; State ex rel. Vulgamott v. Trimble, 253 S.W. 1014. (4) This being an action for the discipline of an attorney instituted under the rules of this court, this court, in the exercise of the superintending control of the members of the bar, should review the whole record returned and write its own opinion on the record, the same as if the case were before it on appeal. Authorities under Point 3.
Owen Thurlo for respondents.
(1) Under the rule of this court governing disbarment, inasmuch as no appeal is provided for from the Court of Appeals, it is a court of last resort in disbarment proceedings and this court has no jurisdiction except that the decision of the Court of Appeals be in conflict with the last previous ruling of this court on the subject and on the same or a similar set of facts, or a general principle of law. Rule 36 Sup. Ct.; Sec. 8, Art. VI, Mo. Const.; In re Sparrow, 338 Mo. 203, 90 S.W.2d 401; State ex rel. Hoyt v. Shain, 93 S.W.2d 999. (2) This court has no jurisdiction in this proceeding as the opinion of the Kansas City Court of Appeals does not do violence to any prior decision of this court either as to a general principal of law or upon the same, or a similar, state of facts, but on the contrary, the decision of the Kansas City Court of Appeals is in harmony with the prior decisions of this court. State ex rel. Walker v. Mullins, 129 Mo. 231, 31 S.W. 744; State ex rel. v. Harber, 129 Mo. 271; Clark v. Austin, 101 S.W.2d 977. (3) This court in this proceedings has no authority to determine whether the decision of the Court of Appeals is right or wrong but only to determine whether the decision of the Court of Appeals is in conflict with some prior decision of this court as the writ of certiorari is not to be used as a substitute for appeal or writ of error. State ex rel. v. Haid, 324 Mo. 130, 22 S.W.2d 1045; State ex rel. v. Trimble, 326 Mo. 623, 31 S.W.2d 785; State ex rel. v. Haid, 325 Mo. 949, 30 S.W.2d 100; State ex rel. Kansas City v. Trimble, 322 Mo. 360, 20 S.W.2d 17; State ex rel. v. Elliff, 332 Mo. 229, 58 S.W.2d 283; State ex rel. v. Dawson, 284 Mo. 490, 225 S.W. 97; State ex rel. v. Trimble, 310 Mo. 150; State ex rel. Hoyt v. Shain, 93 S.W.2d 992. (4) On certiorari this court can not proceed to examine or determine the merits of the cause but must either quash the opinion of the Court of Appeals or quash the writ. State ex rel. v. Trimble, 326 Mo. 702, 32 S.W.2d 760; State v. Bland, 68 Mo. 170, 67 S.W. 580; State ex rel. v. Hostetter, 337 Mo. 522, 85 S.W.2d 417; State ex rel. v. Remmers, 101 S.W.2d 70; State ex rel. v. Haid, 328 Mo. 327, 40 S.W.2d 611; State ex rel. Ward v. Trimble, 327 Mo. 773, 39 S.W.2d 374; Authorities under Point 3.
Original proceeding in certiorari. Relators seek to have quashed the opinion of the Kansas City Court of Appeals In re Williams, 113 S.W.2d 353. Respondent Williams, an attorney at law, served three terms as probate judge and one term as sheriff of Macon County. An information was filed in the Court of Appeals by the chairman and the advisory committee to the general chairman of the bar committees of Missouri, seeking the disbarment of Williams. It charged Williams with professional misconduct. It also charged him with nonprofessional misconduct during the time he was probate judge and sheriff.
Upon the filing of the information the Court of Appeals appointed Hon. John H. Taylor, commissioner to hear the testimony and report to said court his finding of facts and conclusions of law. On hearing the evidence, the commissioner found Williams guilty of a number of the charges and so reported to said court, recommending a permanent revocation of the license of Williams to practice law. Exceptions were filed by Williams to the report. On submission of the case the Court of Appeals rendered the opinion under review, finding Williams not guilty. [In re Williams, 113 S.W.2d 353.]
I. Relators contend that this is an action under the rules of this court to discipline an attorney, and for that reason we should, in this certiorari action, exercise a superintending control of the Court of Appeals by reviewing the case on the merits.
The circumstances considered, we do not think so. However, we are not ruling the question. It is reserved. In this connection it should be stated that the Court of Appeals, in ruling this case, did so as if it were the Supreme Court. We are neither interested in nor concerned about this attitude of said court with reference to the matter. On this review we are concerned only with questions of conflict.
The Court of Appeals admits that the legislative department is without authority to limit the "grounds" for disbarment and admits that this court cannot "be shorn" of its jurisdiction to disbar.
In the face of these admissions it rules as follows:
"The statute is a reasonable legislative regulation of the exercise by the court of its inherent power to disbar. It simply requires that before acts, committed by a lawyer in some capacity other than that of a lawyer, be recognized as possible grounds for disbarment, such acts be first recognized by the filing of a criminal action against him, and that said criminal action so filed shall be of such a character as to legally establish that there has been a proper finding of reasonable and probable cause to believe that he has been guilty of such acts of misconduct as to constitute the commission of a crime involving moral turpitude."
In other words, it rules that both the jurisdiction of the court to disbar and the exercise of said jurisdiction is limited by statute. Furthermore, the said opinion states that the action to disbar Williams "is based on Secs. 11707 et seq., R.S. 1929." The action is not "based" on the statute. It was instituted by the bar committees and is "based on" the rules of this court.
II. Relator contends that the above stated ruling is in conflict with certain decisions of this court and in conflict with our rules Nos. 35 and 36.
The opinion of the Court of Appeals proceeds on the theory that there is a controversy between the legislative and judicial departments over the disbarment of attorneys. There is no such controversy. It is stated in said opinion that the Legislature, under the police power, may enact reasonable regulations with reference to the matter. It also is stated therein that said regulations are for the use of the courts in disbarment actions. Everyone agrees to these statements. However, the said opinion goes further and rules that the court must utilize the statutory regulations. There is not a word in the statute tending to sustain this ruling as will appear in the course of this opinion. The correct rule is that the courts may utilize said regulations. If they do so, then said regulations are in aid of our jurisdiction to disbar and not a limitation on said jurisdiction. [In re Richards, 333 Mo. 907, 63 S.W.2d 672, 675.] Undoubtedly the legislative department, under the police power, "has a voice" in making rules with reference to disbarment. [Clark v. Austin, 340 Mo. 467, 101 S.W.2d 977, 994.] But the courts are not compelled to proceed under said rules. They may proceed solely under court rules relating to disbarment. If they do so, legislation under the police power is not a limitation on the exercise of the court's jurisdiction to disbar. Furthermore, the statute was not intended to be a limitation on the exercise of the court's jurisdiction in disbarment. The first section of the statute follows:
"Any attorney or counselor at law may be removed or suspended from practice in the courts of this state for any of the following reasons: First, if he be convicted of any criminal offense involving moral turpitude; second, if he unlawfully retain his client's money or if he is guilty of malpractice, fraud, deceit or misdemeanor whatsoever in his professional capacity; third, if he shall have been removed, suspended or disbarred from the practice of law in any other state or jurisdiction and shall fail to disclose such fact in his application for license to practice law in this state." [Sec. 11707, R.S. 1929.]
Thus it appears that the section is not a limitation on said jurisdiction of the courts. It does limit the police power to the "grounds" for removal or suspension stated in the section.
The other sections, 11708 to 11715, inclusive, Revised Statutes 1929, fix the procedure for removal or suspension under the statute. The procedural requirements are made mandatory by the use of the word "shall;" whereas, under Section 11707, the removal or suspension "may" be under the statute. If the action is under the statute, the procedural provisions "shall" be followed. The use of the word "may" in Section 11707 is a recognition of the jurisdiction of the courts in the matter and shows that the Legislature did not intend the statute to be an exclusive remedy for disbarment.
In the Richards case, 333 Mo. 907, 63 S.W.2d 672, 675, we ruled as follows:
"It is not always easy to determine what objects are naturally within the range or orbit of a particular department of government, but it will scarcely be denied that a primary object essentially within the orbit of the judicial department is that courts properly function in the administration of justice, for which purpose they were created, and in the light of judicial history they cannot long continue to do this without power to admit and disbar attorneys who from time immemorial have in a peculiar sense been regarded as their officers. Since the object sought is not naturally within the orbit of the legislative department, the power to accomplish it is in its exercise judicial and not legislative, although in the harmonious co-ordination of powers necessary to effectuate the aid and end of government it may be regulated by statutes to aid in the accomplishment of the object but not to frustrate or destroy it."
On principle, said ruling is approved in Clark v. Austin, 340 Mo. 467, 101 S.W.2d 977, 985; State ex inf. McKittrick v. Dudley Co., 340 Mo. 852, 102 S.W.2d 985, and In re Sparrow, 338 Mo. 203, 90 S.W.2d 401. The opinion of the Court of Appeals in the instant case is in conflict with the decisions of this court in the above cited cases. Furthermore, our rules Nos. 35 and 36 have the force and effect of a decision of this court. The said opinion of the Court of Appeals also is in conflict with said rules.
It follows that said opinion of the Court of Appeals and its opinion on the motion for a rehearing, and the orders made pursuant thereto should be quashed. It is so ordered. Tipton, C.J., Lucas, Hays and Douglas, JJ., concur; Ellison, J., concurs in separate opinion in which Leedy, J., concurs.
I concur in the principal opinion except the following two sentences in the second paragraph of Part I thereof:
"In this connection it should be stated that the Court of Appeals, in ruling this case, did so as if it were the Supreme Court. We are neither interested in nor concerned about this attitude of said court with reference to the matter." Leedy, J., concurs.