12 Kan. 399 | Kan. | 1874
The court below rendered a judgment against. the appellant, E. B. Peyton, disbarring him from practicing as an attorney and counselor at law in the district courts of Kansas. From this judgment the appellant now appeals to this court. The charge and findings of the court below, upon which said judgment was rendered, were for deceit and fraud in procuring an admission to practice in said courts. The charge and findings stated, substantially, that on the second of March, 1868, the appellant procured
The attorneys’ act of 1859 (Comp. Laws 1862, p. 102, c. 15) was in force on March 2, 1868, when the appellant was admitted to the bar in Lyon county as aforesaid. The attorneys’ act of 1868 (Gen. St. c. 11) took effect October 31, 1868, and still continues in force, and was therefore in force during the entire pendency of this proceeding. But whether this proceeding comes within either of said acts, or neither of them, we do not think that it is in any manner
We think the proceeding to disbar an attorney, like the proceeding for contempt, is a criminal proceeding, or, at least, it is a quasi criminal proceeding. People v. Turner, supra. The proceeding to disbar is often entitled in the name of the state or the people, or the commonwealth. This is directly held to be proper in Kentucky. Turner v. Com., 2 Metc. 619, 631; Rice v. Com., 18 B. Mon. 472. Such a prosecution is for the public. It is always for misconduct on the part of the attorney. It is not for money or other property, and not to recover for any pecuniary loss sustained by the public; and it always involves disgrace to the defendant. It takes from him a right of which he is already in possession. It takes away his business and his means of gaining a livelihood. And this it does, not for the purpose of giving the same to some other person, or to the. state, but simply to deprive the defendant of the same. The whole thing is in the nature of a criminal forfeiture. In the *case of Cummings v. State 4 Wall. 277, it was held that to deprive a clergyman of his right to preach on account of past conduct is punishment, and criminal in its nature, and that a law which in effect prohibits a clergyman from preaching on account of past acts for which no such punishment was inflicted at the time when such acts were committed is an ex post facto law, and is unconstitutional and void. In the case
The proceeding, then, for the removal of an attorney and counselor from practice, being in its nature a criminal proceeding, the defendant in such a proceeding has a right to a change of venue when the regular judge of the court wherein such proceeding is pending is in any manner prejudiced in the case. Section 173 of the Criminal Code reads as follows:
“Sec. 173. When any indictment or criminal prosecution shall be pending in any district court, the same shall be removed by the order of such court or judge thereof to the district court of some county in a different district, in either of the following case: First, when the judge of the court in which the cause is pending is near of kin to the defendant, by blood or marriage; second, when the offense charged is alleged to have been committed against the person or property of such judge, or some person near of kin to him; third, where the judge is in anywise interested or prejudiced, or shall have been counsel in the cause.” Gen. St. 847; also Comp. Laws 1862, 258, § 151.
And for the reason that this section recognizes the fact that a judge who is prejudiced in a caséis “disqualified to sit” ^therein, the defendant in such a case has a right to have a judge pro tem. elected to hear and determine the case. Section 4 of the act concerning district .courts reads as follows:
“Sec. 4. A judge pro tem. of the district court may be selected in the following cases: First, when the judge shall be sick or absent at the commencement of the term; second, when the judge shall be sick or absent himself during or at the close of any term before all the cases pending in the court at the commencement of the term shall have been reached for trial; third, when the judge is interested, or has been of counsel in the ease or subject-matter thereof, or is related to either of the parties, or otherwise disqualified to sit.” Gen. St. 304. See, also, Const. Kan. art. 3, § 20.
Possibly a change of venue may be had, or a judge pro tem. elected on account of prejudice of the regular judge even in civil cases. The last section quoted applies to civil cases as well as to criminal cases, and section 56 of the Civil Code, as amended, reads as follows:
“Sec. 56. In all cases in which it shall be made to appear to the court that a fair and impartial trial cannot be had in the county where the suit is pending, or where the judge is interested, or has
What do the words, “or is otherwise disqualified to sit,” mean? It will be admitted that at common law prejudice did not disqualify a- judge; but still some meaning should be given to said words, if possible. In Kentucky, section 28 of article 4 of their constitution of 1850 reads as follows: “The general assembly shall provide by law for holding circuit courts when/rom any cause the judge shall fail to attend, or, if in attendance, cannot properly preside.” The general assembly did provide that “when, from any cause, the judge of the circuit court fails to attend, or, if in attendance, cannot properly preside in a cause or causes pending in such court, the attorneys of the court who are present shall elect one of its members then in attendance to hold the court for the occasion, *who shall accordingly preside.” Rev. St. (vol. 1, Stant. Ed.) 321. Under an old statute of 1815, which seems to have been still in force in 1850, when said constitution of Kentucky was framed, and under the subsequent statutes following, a party had a right to a change of venue on account of prejudice of the judge. Under said constitutional provision and these statutes the supreme court of Kentucky held that a defendant in a case almost exactly parallel with this had a right to be tried by a special judge, and not by the regular circuit judge. Turner v. Com., 2 Metc. (Ky.) 619. Said court held that the words, “any cause,” meant prejudice, as well as other causes. There is no question concerning the constitutionality of our laws regarding a change of venue, when asked for by either party in a civil suit, or when asked for by the defendant in a criminal prosecution; and there is no question concerning the constitutionality of the act authorizing the election of a judge pro tem. The constitution itself expressly provides for such a thing. Const. Kan. art. 3, § 20.
We do not think that the appellant had sufficient notice that this proceeding was instituted for the purpose of disbarring him. The whole proceeding, as it appears from the record brought to this court, would seem to be merely a proceeding for contempt. The judgment of the court below disbarring the appellant is the first thing that shows that there was any intention to disbar the appellant. The appellant was not present in person at the trial. Probably it was not necessary that he should have been, as this proceeding cannot be considered in the light of a felony. Hé was, however, represented by able counsel. But'the record does not show that anything transpired during the trial to give even the appellant’s counsel any knowledge of the real object of this prosecution. It is true that a prosecution of this kind is to some extent a summary prosecution, (Bac. Abr. “Attorney,” H) and therefore that it need not be very
We think the court below erred — First, either in not granting the ■change of venue, or allowing the trial to be had before a judge pro tem.,- second in rendering a judgment against the appellant disbarring him, when no notice had been given to the appellant that such was the nature of the proceeding. The evidence introduced on the hearing of the alternative motion, for a change of venue or for the election of a judge pro tem., was amply sufficient to show that the judge of the court below was prejudiced against the appellant.
The judgment of the court below must be reversed, and cause remanded for further proceedings.