In re Polley
159 N.W. 42
S.D.
1916
Check Treatment
WHITING, J.

There was filed in this court the sworn petition of one J-oe Kirby, a duly licensed attorney o-f this state, in which it was charged that Samuel -C. Polley, formerly secretary of state in and for this state, and at the time of the filing of such petition and now a member of this c-ourt, while acting as such secretary of state had been gu'il-ty of -criminal offenses involving *526moral turpitude, in that he willfully, wrongfully, and unlawfully did ask, promise to receive, and receive, a gratuity and reward in •the sum of $100 from a certain party, in consideration for appointing such party to a clerkship under the laws of this state, and in. that he did1 make such appointment. The petition prayed that this-court proceed bo investigate such charges, -and that this court revoke the license to practice law in this state held by accused. The accused forthwith answered, waiving any investigation by the Attorney General as provided by chapter 85, Laws of 1911; consenting that such petition 'be treated as the complaint herein;, denying the accusations contained in such petition; and charging that such accusations were made without probable cause, and were influenced by improper motives. The issues thus raised were referred for trial and report thereon tO' a board of three referees, agreed upon by the accused and the Attorney General and appointed by the court. The referees found the charges preferred to 'be groundless; that the accuser did not, prior to the filing of the petition, inquire of the party from whom accused was charged to have received the $100 as, to' whether or not “he had paid, or agreed to pay, or give .any gratuity or reward, * * * to the respondent or ¡any one else, for the said appointment to such clerkship”; that two certain letters written by accused to one R. O. Richards, ‘and which under the evidence formed the sole basis for the charges preferred, “in no way warranted the conclusion contained in said charges so filed by said1 Joe Kirby against the respondent herein”; and that “said accusations were so made and filed by said Joe Kirby without probable cause.” The refereed concluded that judgment should enter dismissing said petition and charges upon the merits, and that the court itself should, upon motion and after notice to the accuser, determine “what, if any, costs or disbursements should be taxed against the accuser." The matter is now before us upon a motion for judgment in conformity with the report of the referees, the accuser having been required to show cause why, as ¡a part of such judgment, judgment in favor of the state should not be entered against him for the disbursements incurred on behalf of the prosecution, and judgment in favor of the accused should not be entered against him, for the accused attorney’s necessary disbursements in this proceeding.

*527[1] Answering suoh order to show cause, the accuser makes mo claim that there was evidence sufficient to sustain the charges •originally preferred against the accused. A transcript of the proceedings had before, and the evidence received by, the referees is made a part of their report. From such transcript it clearly .appears that no evidence was offered which expressly, or by the xemotest inference, tended to prove such charges.

[2] But the accuser complains because the said referees did not allow him to file certain additional charges against the accused. The new charges -in no manner related to the transaction referred to in the original accusation, but at least one of such -charges was such that, if true, it would tend' to show that at one time the accused was unfit to be a member of the bar of this state, and might, in connection with proof of other facts, show present unfitness. The amendment was sought at the opening of the 'trial. It was conceded that these accusations had never been called to the attention of the Attorney General so as to permit of an investigation by him into their truthfulness. The accused had received no notice that such charges would be preferred. Neither was there any explanation -of why such accusations were not contained in the original petition. The referees were of the opinion that certain of these charges were not presented in suoh a manner, or were not of such a nature, as to demand consideration by them, but that one was of such a nature 'as warranted further consideration. They ruled that before this one should be so considered; it should be investigated by the Attorney General for .the purpose of determining whether he •deemed the matter therein referred to worthy to be presented to such referees; that, if the Attorney General, after such investigation, considered such matter worthy -to be presented to such referees, he might present a formal accusation embracing such matter; and that -the accused might have a reasonable time to .answer thereto. The Attorney General advised the referees that it would take ten days to make such investigation. This matter was then passed, and the trial of the :ssues- raised an the original petition proceeded with. At the close of such trial the referees, after announcing' that they should find the charges contained in the original accusation not sustained by evidence, stated:

“And in view of the case as it stands, the proposed amend*528•ment'will be -denied1, and the-proceedings dismissed upon the merit's.”'

We are of the view tlia-t, even though each and every one of the additional charges sought to he preferred were such as, if true, would- show accused unfit to be a member of the 'bar of this state, -the accuser was not wronged- by any ruling" denying an amendment óf the original petition. To- refuse an amendment until the Attorney General could investigate the charge contained therein was certainly no- abuse of" discretion! At -the time the amendments -were offered the referees were bound to presume that there might be 'some evidence -offered which, in- some degree at least, w-o-uld tend to show unfitness of the accused to- remain a member of the bar of this state. But w-hen no such evidence was offered- "there was left nothing to the original charge, and the referees correctly -rul-e-d that, “in view of the case as it stands, the proposed amendment will bé denied.” To- allow an amendment was a matter within the discretion of s-uch referees. There certainly was n-o abuse of discretion in their refusal to hold the trial of this- -cause -open with a view of the possible allowance of an -amendment to- -the petition when it clearly, appeared to- them ■that the accusations contained in such petition, were unfounded: that the accuser had presented the" same -without probable cause for believing them- tru-e; that no- notice of the proposed amendment had been given and no- excuse for such failure offered; and that they could not know -th-a-t after an .investigation by the Attorney General any amendment would be desired by such officer. It does not follow that the charges contained in the proposed amendments- should be disregarded by this court. The interests -of the people of this state require that no ground1 for suspicion as to the integrity -of this co-ur-t or any member thereof be all-owed to exist when -it is within the power of this -court to-’ remove the same. We shall therefore treat such proposed amendments as -the filing of a new petition, and refer the same to the Attorney General for investigation, and report in accordance with the provisions ■of chapter 85, Laws- 1911. ' ■

[3] The accuser contends that no judgment for the costs óf the proceeding should 'be rendered against him. Section-6, c. 85, Laws 1911, provides:

“Section 6. In all such proceedings the Supreme Court shall *529be authorized, in its discretion, to tax and render judgment for necessary disbursements incurred on behalf of the 'prosecution, against the accuser and-ini favor of the State of South Dakota, ■whenever -such court shall determine that the charges filed were unfounded; and, whenever the said court shall further determine that such accusation was made without probable cause and was influenced by improper motives, it may render judgment against the accuser and in favor of the attorney accused, for such accused attorney’s necessary disbursements in such proceedings.”

That the charges preferred were wholly “unfounded” is too clear to merit discussion. It follows, that there should be judgment against the accuser, and' in favor of the state, for the necessary disbursements incurred on 'behalf of the prosecution, either by the state or the county to which this cause was referred for trial. The referees found, and correctly, that there was no probable cause for tire charges preferred, but they made no finding as to the motive which influenced the accuser in .preferring such charges. The accused1 has not asked that this court make any findings on the issue of improper motive, nor has he asked that the cause be again referred to the referees for a finding upon suoh issue; but the accused has asked the court to affirm, such íeport as made. Under the situation thus presented this court is not called upon to determine, and does not determine, whether the accuser was actuated by improper motives in making the accusations preferred. Nor can we render any judgment except such 'as finds support in the findings made by the referees. Owing to the absence of a finding that the accuser “was influenced by improper motives” in making his accusations, the accused cannot recover judgment for his “necessary disbursements.”

The report of -the referees i.s, .in all things, affirmed, and judgment will be entered in accordance with, this opinion..

POEEEY,' P. J., faking no part herein.