32 App. D.C. 109 | D.C. Cir. | 1908
delivered the opinion of the Court:
1. The primary question involved in the several motions to dismiss the general and special appeals is, whether the Secretary of the Interior is entitled to prosecute the appeal from the judgment awarding the writ of mandamus, under the direction of his own, and the Department of Justice, without giving the bond required in ordinary cases; for, if he is not, the general appeal must be dismissed. Such dismissal would necessarily •carry with it the special appeals without regard to the questions raised in the motion to dismiss them.
Section 1000. “Every justice or judge signing a citation on any writ of error shall, except in cases brought up by the United States or by direction of any department of the government, take good and sufficient security that the plaintiff in error or the appellant shall prosecute his writ or appeal to effect, and, if he fail to make his plea good, shall answer all damages and costs where the writ is a supersedeas and stays execution, or all costs only where it is not a supersedeas as aforesaid.”
Section 1001. “Whenever a writ of error, appeal, or other process in law, admiralty, or equity issues from or is brought up to the supreme court or the circuit court, either by the United States or by direction of any department of the government, no bond, obligation, or security shall be required from the United States, or from any party acting under the direction aforesaid, either to prosecute said suit, or to answer in damages or costs. In case of an adverse decision, such costs as by law are taxable against the United States, or against the party acting by direction, as aforesaid, shall be paid out of the contingent fund of the department under whose directions the proceedings were instituted.”
2. It cannot be doubted that this is an action at law the proceedings and judgment in which, under ordinary conditions, could only be reviewed on a writ of error. It comes here on appeal as that is the proceeding provided in all cases to review a judgment or decree of the supreme court of the District of Columbia, or any justice thereof, by sec. 7 of the act of February 9, 1893, creating the court of appeals of the District of Columbia. This appeal would seem, therefore, to come within the spirit of sec. 1000, Rev. Stat., though not within its strict letter. But it is unnecessary to express an opinion on this point, as it has been held that sec. 1001 authorizes an appeal from the supreme court of the District, by an officer representing the United States, without bond, when said appeal had been taken by direction of a department of the government. Leonard
We are asked to reconsider that decision, the contention being that the section is, by its terms, limited to writs of error and appeals in cases brought up to the supreme court or the circuit courts, and that the court of appeals is not included therein. This section was enacted long before the creation of the court of appeals, when appeals and writs of error were taken directly from the supreme court of the District to the Supreme, Court of the United States; and it cannot he denied that it expressly applies in all cases appealed from the court of appeals to the Supreme Court of the United States. Section 1000 was originally enacted in 1789, and, read in connection with sec. 1001, as it must be, it is plain that the broad purpose of the two is to secure the right of appeal without bond, in all cases involving a public interest, when the appeal shall he taken by direction of a department of the government. That general intent is not to be thwarted by the subsequent creation of the court of appeals as an intermediate appellate court between the supreme courts of the District and the United States; and it is given effect to substantially by sec. 2 óf rule X.
3. It is further contended that a bond is imperatively required by sec. 1282 of the D. C. Code. That section is the last one of the chapter regulating the procedure in mandamus cases,
4. It is further contended that a proceeding for mandamus against the Secretary of the Interior is not such a case as comes within the provision allowing appeal without bond in a case brought up either by the United States or by direction of a department of the government. This is founded on the proposition that the performance of the duty required is one resting upon the person to whom' the writ is directed, and that the writ is aimed exclusively against him as a person, and does not reach the office. United States v. Boutwell, 17 Wall. 604, 21 L. ed. 721; United States ex rel. Bernardin v. Butterworth, 169 U. S. 600, 42 L. ed. 873, 18 Sup. Ct. Rep. 441; Roberts v. United States, 13 App. D. C. 38.
This is undoubtedly true. If such an action was regarded as against the United States, in fact, it would not lie save by their express consent. At the same time, the interests affected by the action to be performed are those of the United States alone. The only way in which the interests of the officer are affected is his liability for costs. The act which he is directed to perform is an official act that can only be performed while he is in office. Upon his retirement from office before service of the writ, the latter becomes ineffectual. The effect was that, if he vacated the office, his successor could not be substituted as a party in his stead. The suit abates. Warner Valley Stock Co. v. Smith, 165 U. S. 28, 31, 41 L. ed. 621, 622, 17 Sup. Ct. Rep. 225. That was a suit to enjoin the Secretary of the Interior from assuming to exercise jurisdiction in regard to the disposition of certain lands, and to compel him to issue patents therefor to the complainant. The plaintiff failed in the supreme
Now in this case, as was said in Leonard v. Rodda, 5 App. D. C. 256, 265, the appellant has no greater interest in the subject-matter than all other citizens have. His action was in the line of the performance of his official duties as an officer of the United States, under their authority and'on their behalf. His appeal was taken in the performance of the same public duty, and it would have a strange consequence if the rights of the public in such cases should be made to depend upon his willingness or ability to give his individual bond. If he should refuse to incur the risk of personal liability, no appeal could be taken, and there would be no means by which the government could avert the result. The Secretary of the Interior was of the opinion that the judgment seriously affected the public interest, and the Attorney General concurred in that view. As heads of their respective departments they directed the appeal to be taken
5. The special appeals from the orders of the trial court requiring a bond to be given in the sum of $50,000, in order to supersede the execution of the original order awarding the writ of .mandamus, were allowed in accordance with the doctrines enounced in Leonard v. Rodda, supra, and again declared hereinbefore. Since the appeal in the main case has been held to operate as a supersedeas, without bond, particular consideration of the motion to dismiss the special appeals is unnecessary and unimportant. The questions raised, particularly that involving the power of the members of the court to act as a court when apart from each other, and outside of the special territorial limits of the court’s jurisdiction, present difficulties the discussion of which would greatly prolong this opinion. Without expressing an opinion with regard to them at this time, the motions are formally denied.
6. This brings us to the consideration of the case on its merits.
The Secretary of the Interior is the chief of one of the great Executive Departments of the government, and is clothed with general powers of control and supervision in respect of the manner of the administration of the several minor departments and bureaus thereof. Sec. 161 Rev. Stat., U. S. Comp. Stat. 1901, p. 80. The Pension Bureau, under his control, is an immense
Among the regulations prescribed thereafter on July 11, 1884, by the Secretary of the Interior, are secs. 5 and 9 as follows :
“Sec. 5. In the case of a firm, the names of the individuals composing the firm must be given, and the certificate and oath as to each member of the firm will be required.”
“Sec. 9. Whenever an attorney or agent is charged with improper practice in connection with any matter before a bureau of this department, the head of the bureau shall investigate the charge, giving the attorney or agent due notice, together with a statement of the charge against him, and allow him opportunity to be heard in the premises. When the investigation shall have been concluded, all the papers shall be forwarded to the department with a statement of the facts and such recommendations as to disbarment from practice as the head of the bureau may deem proper, for the consideration of the Secretary of the Interior. During the investigation the attorney or agent will be recognized as such unless for special reasons the Secretary shall order his suspension from practice.”
7. The first point raised on the charge of the petition that the proceeding was not in accordance with due process of law is that the charge against the relators is founded on depositions taken ex parte, and without their knowledge. The formal and regular way to proceed in such cases is to found the charges upon which the attorney is cited to show cause why he should not be disbarred, upon an affidavit stating the facts. Ex parte Wall, 107 U. S. 265, 271, 27 L. ed. 552, 555, 2 Sup. Ct. Rep. 569. But such affidavits are necessarily ex parte. In no proceeding before the courts has it ever been held that the party charged with the offense should have notice of taking the affidavit and an opportunity to controvert it in advance. It is merely the foundation of the charge which he is called upon to meet. Using it for that purpose and using it as proof of the charge on the trial are very different things. The Commissioner had the right to make investigations regarding the practices before his office, and to use facts so ascertained as the basis of a formal proceeding to disbar an attorney. Upon the charges so made, if not admitted, he is not empowered to prosecute to judgment, save upon evidence submitted in the usual way, with opportunity to the accused to hear and examine the witnesses, and to introduce proofs on his own behalf. The department did not exceed its jurisdiction or deny due process of law in this respect, and the judgment appealed from cannot be supported on this contention.
(1) Without notice to relators, or opportunity to be confronted with the witnesses, the Secretary made an ex parte investigation of the charge in the answer that the practice of attorneys in buying the warrants of their clients had long been known to the officers of the Pension Bureau, had been acquiesced in, and had grown into a usage, which relieved their conduct of any taint of illegality or impropriety. The answer admits that this investigation was ■ privately made, but avers that it was for the sole purpose of acquiring information by the Secretary as to the conduct of the officials of the bureau in such matters; and that the Secretary held, as matter of law, that the alleged facts, if true, constituted no ground of defense to, or justification of, such practices. The truth of the answer is admitted by the demurrer. If the conclusion of the Secretary was a sound one, then the relators were denied no constitutional right by his private investigation of the truth of the charge made against his subordinates. That he was right, we think is clear. The knowledge by officers of the bureau of the existence of such practices, and their apparent acquiescence therein by reason of failure to condemn, or disapprove of the same, could not change their nature, if illegal and improper, and confer legality and regularity upon them, long and universally recognized rules of law for the protection of clients and the observance of honor among lawyers cannot be abrogated by the toleration, or the connivance of officials charged with the administration of the law.
(2) The mass of depositions taken by the Commissioner in the course of the preliminary investigation before referred to, as required by the regulations (sec. 9), accompanied his report made to the Secretary. The charge is that the Secretary considered the same as evidence in arriving at his decision disbarring the relators, and that his conclusion was in part founded
From these admissions, the Secretary was of the opinion that they were buying the warrants'without giving information of value to their clients, were misleading them in regard to their interests, and defrauding them, and were also exacting indirectly more than the fees fixed by the statute in such cases. Having the jurisdiction to determine the weight of these admissions and evidence, direct and circumstantial, the soundness of his conclusions thereon cannot be inquired into in this proceeding. “Whether he decided right or wrong is not the question. Having jurisdiction to decide at all, he had necessarily jurisdiction, and it was his duty, to decide as he thought the law was; and the courts have no power whatever, under those circumstances, to review his determination by mandamus or injunction.” United States ex rel. Riverside Oil Co. v. Hitchcock, 190 U. S. 316, 324, 325, 47 L. ed. 1074, 1078, 23 Sup. Ct. Rep. 698.
9. The final contention is that the Secretary proceeded in excess of the jurisdiction conferred upon him by sec. 5 of the act of July 4, 1884. That section confers on him the power to make regulations governing the recognition of agents, attorneys, and other persons representing claimants before his department, and to require that they shall show that they are of good moral character and in good repute and competent to advise and assist olients; and, further, that he may, after notice and opportunity for a hearing, suspend or exclude from further practice “any
It is contended that the words of the statute are too vague and uncertain in their definition of the conduct justifying the suspension or exclusion of an attorney from practice before the-department to be capable of enforcement. Proceedings of the-kind, notwithstanding they may have very serious and damaging consequences, are not criminal proceedings. The word “disreputable” is the only one bearing on this controversy to which any uncertainty can be attributed. It was probably used as the-equivalent of unprofessional and as applying more appropriately to agents and other persons who, as well as attorneys, might be permitted to practice before the department. The courts were possessed of the inherent power, at the common law, to inquire-into the conduct of attorneys admitted to practice before them, and to disbar them when found guilty of unprofessional conduct. The term was well understood by them and by the attorneys in-general, and there was no more practical uncertainty in its application than in that of the word defraud, which is so commonly used in criminal statutes without definition. Any conduct violative of the ordinary standard of professional obligation and honor was unprofessional and disreputable. It is rare that statutes have been passed defining or limiting the exercise of this-inherent power. Judged by the standard referred to, the admitted conduct of relators was clearly improper and unprofessional. .It is not necessary, however, to consider whether the court, having no power to review the action of the Secretary for error, can inquire whether he gave an erroneous construction to the statute. Nor is it necessary to consider whether the Secretary, who in these matters is vested with judicial power, and whose relations -to attorneys practising before his department are substantially the same as that of a court to attorneys admitted to its bar, has any inherent power in such matters of which the statute is merely declaratory.
The relators were charged with conduct misleading their clients, through omission of duty to furnish them information, ■with misconduct in filing fee agreements with no intention to observe the same, and subsequently waiving the stipulated and lawful fee and indirectly receiving more than the lawful fee through purchase of the warrants at less than their actual value. This purchase of warrants was also charged as illegal under the provisions of sec. 2436, Rev. Stat. Evidently the Secretary considered that the evidence direct and circumstantial, furnished by the answer and its exhibits, sustained the charge of defrauding clients, and violating the provisions of the law denouncing the receipt of fees in excess of the legal rate, and declaring transfers of warrants void. The answer to the charge expressly admitted that the purchase of warrants was void under sec. 2436, but defended against the same on the ground that the section simply renders such sales void, at the option of the seller, and does not provide any penalty for making the purchase; wherefore it is not an unlawful act. It is quite true that there is no penalty imposed as a punishment for violating this section, but that does not relieve a purchase from being an illegal act. It was intended to prevent fraud in the administration of the land laws, and made a rule which was violated by the relators. • The charge against the relators was of “improper, unprofessional, and illegal conduct” in the matter of the cases specified. The
10. An incidental question arises on this record which requires some consideration. Two of the relators only were disbarred. The other two, claiming to be members of the firm of Milo B. Stevens & Company, have joined in this petition. The-first two were admitted under the rule to practise in their own and in the name of Milo B. Stevens & Company, having stated, that they alone composed the firm. As the business of that firm had belonged in part to Milo B. Stevens, who had died, they were required to procure the consent to their use of their firm name by his representatives. This they did, and were then admitted. Neither the widow of Milo B. Stevens, now the wife of the relator Harney, nor Evelyn Stevens, the infant child of Milo-B. Stevens, had ever been admitted to practise before the department. They could not so practise under the name of Milo-B. Stevens & Company, without complying with the regulation. They have nothing of which they can complain, and were, therefore, neither necessary nor proper parties to the proceeding. _ _
_ _ We are of the opinion that the court should have overruled the demurrer to the respondent’s answer to the petition. The judgment will therefore be reversed, with costs, and the cause remanded for further proceedings not inconsistent with this-opinion- Reversed.
A petition by the appellees for a rehearing was denied January 6, 1909.