134 So. 67 | Miss. | 1931
Lead Opinion
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 *880 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,
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 *882 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,
B. State ex rel. v. Reynolds, 252 Mo. 378, 380, 158 S.W. 671; In re Raisch,
C. The People v. Berezniak,
D. In re Ashley,
E. In re Thatcher,
F. Brooks v. Fleming, 6 Baxt. (65 Tenn.) 331, 337; State v. Kirke,
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 proceeding 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 *884 . . . if found guilty of conduct incompatible with fundamental honesty, or which discloses a moral turpitude 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, *885 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,
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 *887 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 superior *888 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 *889 all shall be made, except in the arguments. As to the 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.
Dissenting Opinion
I take it that there is no question about the power of the Constitutional Convention to partition the judicial power of the state among the various courts which it deems necessary to create, and give to each court such *890 jurisdiction as it sees proper, and to limit the jurisdiction of any court to a particular subject or subjects, on which the judicial power acts. By section 144 of the Constitution of 1890 the Constitutional Convention vested the entire judicial power of the state in the courts created by the Constitution. It provides: "The judicial power of the state shall be vested in a Supreme Court and such other courts as are provided for in this Constitution." The entire judicial power is therefore vested by the Constitution in the courts named or provided for in the Constitution. This covers judicial power in all the applications and forms and as to all subjects upon which it operates.
In section 156 of the Constitution the circuit court is given original jurisdiction in all matters civil and criminal in this state not vested by this Constitution in some other court, and such appellate jurisdiction as shall be prescribed by law. The original jurisdiction therefore is vested in the circuit court in all cases in which the judicial power may be exercised, where the Constitution has not vested that original jurisdiction in some other court. This was expressly held in the case of Power v. Robertson,
The Constitution, sections 159, 160, and 161, gives to the chancery court original jurisdiction in certain enumerated cases.
Section 171 of the Constitution gives the original jurisdiction to justices of the peace in cases of civil matters involving two hundred dollars or less, and in all misdemeanors.
In all cases not enumerated in these various sections of the Constitution itself the circuit court has original jurisdiction. The grant of jurisdiction to the circuit court, it will be observed from the reading of the language thereof, is not specific, but is general, and embraces all kinds of original jurisdiction not vested by the Constitution itself in some other court. *891
By section 172 of the Constitution it is provided: "The legislature shall, from time to time, establish such other inferior courts as may be necessary, and abolish the same whenever deemed expedient." The jurisdiction that can be conferred upon these special courts is some part of the jurisdiction vested by the Constitution in some other court, and is not an exclusive jurisdiction, but is a concurrent jurisdiction with some other court.
Section 146 of the Constitution of 1890 confers jurisdiction upon the Supreme Court. It reads: "The Supreme Court shall have such jurisdiction as properly belongs to a court of appeals." This section of the Constitution has been construed in numerous cases, and it has been held in these cases that it has no original jurisdiction but only appellate jurisdiction. In determining the jurisdiction of the Supreme Court, the definition of the words "appellate jurisdiction" and the definition of the words "original jurisdiction" become important. It was manifestly the purpose of the Constitutional Convention to have an appellate court whose time should be exclusively devoted to the discharge of its duty in deciding appeals from other courts. In Words and Phrases, Second Series, vol. 1, page 248, we find the following definition of appellate jurisdiction:
"`Appellate jurisdiction, of a court is the power and authority conferred on a superior court to rehear and determine causes tried in inferior courts."
"`Appellate jurisdiction' is the power to take cognizance of and review proceedings had in an inferior court, irrespective of the manner in which they are brought up, by appeal or writ of error."
"`Appellate jurisdiction' is defined as the jurisdiction which a superior court has to rehear causes which have been tried in inferior courts, and the very expression `appellate jurisdiction' refutes and contradicts any idea of filing new pleadings, and framing and settling issues in a court of such jurisdiction." *892
"`Appellate jurisdiction' necessarily implies that the subject-matter has been instituted in and acted upon by some other court whose judgment or proceedings are to be reviewed. While this jurisdiction may be exercised in a variety of forms and in any form which the Legislature may prescribe, the substance of the jurisdiction must exist before the form can be applied to it. It is the power vested in a superior tribunal to review and revise the judicial action of an inferior tribunal."
In Words and Phrases, First Series, vol. 1, page 452, under the title "Appellate Jurisdiction," are numerous definitions, from which I quote the following:
"`Appellate jurisdiction' is the power vested in a superior tribunal to review and revise the jurisdiction of an inferior tribunal."
"`Appellate jurisdiction' is defined to be the power and authority conferred upon the Supreme Court to hear and determine causes which have been tried in inferior courts."
"`Appellate jurisdiction' is the power to take cognizance of a review of proceedings had in an inferior court, irrespective of the manner in which they are brought up, whether by appeal or by writ of error."
"`Appellate jurisdiction' embraces the right to review the final judgments of the courts of original jurisdiction, or, in other words, the right to reverse, affirm, or modify them, and to enforce by some mandatory process the judgment of the appellate tribunal."
"`Appellate jurisdiction,' strictly speaking, is exercised by revising the actions of inferior courts and remanding the cause for the rendition and execution of the proper judgment."
"`Appellate jurisdiction,' as used in Constitution, article 3, section 10 (Kan.), providing that the Supreme Court shall have such `appellate jurisdiction' as may be provided by law, means to revise and correct the proceedings in a cause already instituted, and necessarily implies *893 that the subject-matter has already been instituted and acted on by some other court whose judgment or proceedings are to be revised. The fact that there has been a decision, however, is not sufficient, but there must have been a decision by a court clothed with judicial authority and acting in a judicial capacity. The tribunal from which an appeal lies need not be called a `court,' but it must be one having the attributes of a court — a tribunal where justice is judicially administered."
In Marbury v. Madison, 1 Cranch, 137, 175, 2 L.Ed. 60, it is defined: "It is the essential criterion of appellate jurisdiction, that it revises and corrects the proceedings in a cause already instituted, and does not create that cause. Although, therefore, a mandamus may be directed to courts, yet to issue such a writ to an officer for the delivery of a paper, is in effect the same as to sustain an original action for that paper, and therefore seems not to belong to appellate, but to original jurisdiction."
Our court has in numerous decisions, above quoted, limited the jurisdiction conferred upon the Supreme Court to strictly "appellate jurisdiction." In Planters' Ins. Co. v. Cramer, Hume and McCown,
In Illinois C.R. Co. v. Dodd et al.,
In Yazoo M.V.R. Co. v. Wallace,
In Wynne et al. v. Illinois Cent. R. Co.,
In Peirce v. Halsell,
In Edwards v. Kingston Lumber Co.
In Robertson v. Southern Bitulithic Co. et al.,
In Brown v. Sutton (Miss.),
In Ocean Springs Bank et al. v. Frederick,
In Planters' Oil Mill v. Yazoo M.V.R. Co.,
In St. Louis S.F.R. Co. v. Bridges,
In Sussman, Wormser Co. v. Sea Food Co.,
In Gwin v. Fountain (Miss.), 132 So. 559, on the suggestion of error, we held: "The Supreme Court is a court of appellate jurisdiction only, and cannot decide issues of fact which have been pretermitted by the court below, nor decide issues of fact by considering evidence which was excluded by the lower court."
All of these cases by the Mississippi Supreme Court construing the meaning of section 146 of the Constitution would seem to leave it unnecessary to cite other authorities, but similar holdings have been held in many states where there was no other jurisdiction than appellate *899
jurisdiction vested by their Constitutions. I desire simply to call attention to two of the cases from other states. In Freitag v. Union Stock Yard Transit Co.,
In Fine v. Lawless,
As seen above, section 156 of the Constitution of 1890 gives to the circuit court original jurisdiction in all cases which are not given by the Constitution itself to some other court. It is therefore manifest that the Constitution was providing the courts that should entertain original jurisdiction, and it intended that all original jurisdiction should be vested in courts inferior to the Supreme Court, and that the Supreme Court did not have thrust upon it any original jurisdiction whatever, and the Legislature being powerless to thrust it upon the Supreme Court, the court could not rightfully assume it itself. *900
In Words Phrases, First Series, vol. 6, page 5058, under title "Original Jurisdiction," it is said:
"The phrase `original jurisdiction,' as used in Revised Statutes, article 2, chapter 69, section 3, as amended, limiting the jurisdiction of the district court, and conferring upon it original jurisdiction in certain cases, means jurisdiction to entertain cases in the first instance, as distinguished from appellate jurisdiction. Castner v. Chandler,
"Constitution, article 6, section 6 [California], declares: `The district courts shall have "original" jurisdiction in law and equity in all civil cases where the amount in dispute exceeds two hundred dollars; in all criminal cases not otherwise provided for, and in all issues of fact joined in the probate courts their jurisdiction shall be "unlimited."' In considering the question whether the word `unlimited' qualifies the character of the jurisdiction fixed by the term `original,' or whether it qualifies the specified limitation as to the amount in value fixed in the first paragraph of the section, the court said: `We are compelled to decide in favor of the latter proposition. The term "original" is a general term of limitation, contradistinguished from the term "appellate," which latter defines the jurisdiction of the Supreme Court.'"
It will be seen, therefore, that, while the circuit and chancery courts and the justice of the peace courts are given specific original jurisdiction by the Constitution, it does not prevent the Legislature from conferring upon other courts concurrent original jurisdiction, because section 172 expressly authorized the creation of inferior courts. In Crowell v. Lambert,
In Words and Phrases, Second Series, vol. 3, page 798, original jurisdiction has been defined as follows:
"The phrase `original jurisdiction' means the power to entertain cases in the first instance as distinguished from appellate jurisdiction, and does not mean exclusive jurisdiction. A court of original jurisdiction is one in which an action has its origin. Burks v. Walker,
"The `jurisdiction' to consider causes de novo, on appeal, and to decide them on the law and the evidence according to the right of the case, independent of the rulings and judgment of the lower court, is original and not appellate. In re Burnette, 85 P. 575, 577,
It is manifest, from a consideration of the purpose of the Constitutional Convention in limiting the Supreme Court to jurisdiction "properly belonging to a court of appeals," that it meant to confer solely the jurisdiction to review appeals upon record. Taking these definitions in the law existing when the Constitution was framed, it is manifest that the court was not intended to exercise any class of original jurisdiction whatever. As to other courts, the Legislature was directed to divide the state into as many convenient districts as the public service required, and to have terms of court held in each county at least twice in each year. Appeals from each of these counties are prosecuted at the option of the litigant to the Supreme Court under conditions prescribed by law. Necessarily a great number of appeals are brought to the Supreme Court for decision. It was the purpose of the Constitutional Convention to have a court of review with power to revise or reverse and remand a case purely upon questions of law entirely independent and apart from the surrounding influences that behedge a trial court. Necessarily in the trial of issues of fact many factors enter the court house calculated to disturb the cool, clear, and correct judgment of the issues involved. *902 The Supreme Court was created for the purpose of correcting mistakes and errors made under such circumstances, and it was to be entirely set apart from the elements of prejudice and passion that sometimes enter the trial courts despite the best effort to avoid them.
It is uniformly conceded that the power to disbar an attorney is a judicial power, and must be exercised in a judicial proceeding in which notice is given and full opportunity to be heard. If it were not, the court could not exercise it at all under section 2 of the Constitution. Such a proceeding must be original in its initiation or institution. The court that decides the issues must necessarily exercise an original jurisdiction as distinguished from an appellate jurisdiction. The proceeding can be appellate only when there has been an original trial. A proceeding of a judicial character cannot be both an original proceeding and an appellate proceeding at the same time. Before any court can exercise an appellate jurisdiction, some other court must have exercised an original jurisdiction.
In Ex parte Garland, 4 Wall. 333, 378, 18 L.Ed. 370, it is said: "The profession of an attorney and counsellor is not like an office created by an act of Congress, which depends for its continuance, its powers, and its emoluments upon the will of its creator, and the possession of which may be burdened with any conditions not prohibited by the Constitution. Attorneys and counsellors are not officers of the United States; they are not elected or appointed in the manner prescribed by the Constitution for the election and appointment of such officers. They are officers of the court, admitted as such by its order, upon evidence of their possessing sufficient legal learning and fair private character. It has been the general practice in this country to obtain this evidence by an examination of the parties. In this court the fact of the admission of such officers in the highest court of the states to which they respectively belong, *903
for three years preceding their application, is regarded as sufficient evidence of the possession of the requisite legal learning, and the statement of counsel moving their admission sufficient evidence that their private and professional character is fair. The order of admission is the judgment of the court that the parties possess the requisite qualifications as attorneys and counsellors, and are entitled to appear as such and conduct causes therein. From its entry the parties become officers of the court, and are responsible to it for professional misconduct. They hold their office during good behavior, and can only be deprived of it for misconduct ascertained and declared by the judgment of the court after opportunity to be heard has been afforded. Ex parte Heyfron, 7 How. (Miss.) 127; Fletcher v. Daingerfield,
It is said, however, that the case of Ex parte Brown, 1 How. 303, is an authority for the jurisdiction of the Supreme Court to try a disbarment proceeding. While that case was decided after the Constitution of 1832 was adopted, it was decided so recently thereafter that it is quite probable that the limitation of the jurisdiction of the Supreme Court contained therein was overlooked. At all events, it was not considered, so far as the report of the case shows. However, the statutes of the state then existing conferred expressly upon the Supreme Court the power to admit attorneys to practice and the power to disbar them. Hutchinson's Code, page 424. And it is manifest, to my mind, that the expressions contained in the opinion of Ex parte Brown, supra, as to the jurisdiction of the courts were based upon the fact that they had power to admit and disbar by statute, and the general rule prevailing that a court which has power to admit usually has power to disbar, unless there is some statute to the contrary. In other words, the Supreme Court was proceeding upon the idea that the power to disbar was expressly conferred by statute, and also that they had the inherent power to disbar, because it had the power to admit attorneys to practice. In 6 C.J. 580, section 37, it is said: "It is well settled that a court authorized to admit an attorney has inherent jurisdiction to suspend or disbar him for sufficient cause, and that such jurisdiction does not necessarily depend on any express constitutional provision or statutory enactment." In the same work, page 582, it is said: "Under the common law, courts that have jurisdiction to admit attorneys have jurisdiction also to disbar them; and conversely a court that has no jurisdiction to admit attorneys to practice has no jurisdiction to disbar them, the jurisdiction to admit and disbar being deemed correlative. But from this it does not follow that none other may be authorized to do so. Formerly, each court might punish or disbar for itself, but its judgment was not *905 effective in any other court. This was remedied in England by statute, and by the statutes of some of the states declaring such judgments effective `in the courts of all other countries.'"
It is impossible to deduce any inherent power to entertain a proceeding original in its nature and character from the grant of appellate power. The word "inherent" is used in the sense of implied. An inherent power is one that is necessary to the exercise of a granted power. In other words, where a power is granted without providing the means for its exercise, the grant may be construed to give, by implication, power necessary for the exercise of the granted power so as to make it effective. Used in this sense, the word "inherent" is unobjectionable, but if "inherent" is to be given the effect of an unlimited reservoir of power undefined in its nature and extent, which the court may reach into as an excuse for doing what it may deem desirable, it is objectionable. The doctrine of inherent power in the sense of independent of constitutional grant is most dangerous and had its origin among despots. When a court is given only a limited power, as it is in the section granting the Supreme Court, or rather defining, its jurisdiction, it is expressly limited to such power as belongs properly to a court of appeals. It could not be extended by a construction to embrace more than the necessary means of carrying out the appellate power expressly granted. The restriction to appellate power to such as properly belongs to an appellate court negatives any inherent power to entertain an original proceeding. Fortunately, our court has defined the inherent powers of a court, or the nature of inherent powers. In Fuller v. State,
In Words and Phrases, Second Series, vol. 2, page 1070, inherent jurisdiction is defined as follows: "By the term `inherent jurisdiction' of the chancery court is meant that jurisdiction and procedure of the high court of chancery of England which was adopted in this state as the jurisdiction of the chancery court before the cession act. J.W. Kelly Co. v. Conner, 123 S.W. 622, 627,
The definition of inherent power is taken from Fuller v. State, supra, by the editor, and is the only definition of inherent power in this series of Words and Phrases.
In the Fuller case, the case cited, viz. In re Waugh,
It is true that the Washington court subsequently held that, as to offenses committed against the Supreme Court itself, the court had jurisdiction to disbar an attorney and granted this power under its inherent powers. See In re Robinson,
As stated above, in section 156 of the Constitution, the circuit court, being given all original jurisdiction not given by the Constitution to some other court, has jurisdiction to disbar attorneys by virtue of the constitutional grant of power, as the Constitution does not provide either for the admission or disbarment of attorneys. So, at all events and under all circumstances, the circuit court has power to disbar, and this power cannot be taken from the circuit court, while it may be granted concurrently to some other court.
The legislature of the state has required the attorney to present his license when he is examined for admission to the chancery court, and the chancery court admits him to practice in all courts of the state. Section 3686 of the Code of 1930 provides that, when an attorney has completed his examination and been adjudged qualified to be an attorney, he is granted a certificate to the effect that he possesses the qualifications required by the examining board or the authorities of the university. The statute as to that reads: "Which certificate said applicant shall present to the chancery court or chancellor of the county of the residence of said applicant, or of the county in which said applicant intends to practice, and said chancery court or chancellor shall in term time or in vacation have entered on the minutes of said court an order granting to the applicant license to practice law in all the courts, both of law and equity, in this state, upon taking by the *910 applicant of the oath prescribed by law." It was the Legislature, in the exercise of its authority, which prescribed the chancery court as the court which shall admit attorneys to practice law. It is true that, after being so admitted, the applicant is required by section 3692 of the Code of 1930, to take an oath in each court after producing his license. This power to admit, under the authorities generally prevailing constituting the great weight of authorities, confers on the chancery court, by implication, the power to disbar for proper causes. Thus both the circuit and chancery courts have jurisdiction to disbar attorneys. It is true also that section 3703 of the Code of 1930 provides: "If any attorney or counselor at law be in default of record, or otherwise guilty of any deceit, malpractice or misbehavior, or shall wilfully violate his duties, he shall be stricken from the roll and disbarred, and his license revoked by any court in which he may practice; and such person shall never afterward be permitted to act as an attorney or counselor in any court in this state." Of course, this section is to be restricted in its operation as to the courts that have original jurisdiction to try the offense. It is clearly not contemplated that a police court or a justice of the peace court, or other court of limited or inferior jurisdiction, shall have the power to disbar an attorney. Under the language of the statute, they would have such power, but all the authorities that I have seen hold that such courts cannot disbar. It evidently means in any court of competent jurisdiction, or any court having jurisdiction of the offense and of the person, may entertain the proceeding. It certainly does not mean that an attorney appearing in a remote part of the state from his residence in a particular cause or court could there be adjudged of an offense and put on trial for disbarment for offenses not committed within that jurisdiction or affecting that court. The statute must be construed so as to harmonize with the other statutory provisions *911 pertaining to the jurisdiction and procedure, etc., in courts. It would, of course, not be competent for the Legislature to provide that the Supreme Court might exercise original jurisdiction. There are many statutes whose language is broad enough to confer jurisdiction upon any court, but they must be interpreted in the light of the other statutes, and the general policy and history of the state.
The Supreme Court has jurisdiction by a constitutional grant and not otherwise. There are many considerations, it seems to me, which will require the declining of jurisdiction in this court. A disbarment proceeding may be a very expensive proceeding to the attorney involved if he is carried from his home, and where his witnesses who know his general character best live, into the capital of the state or to some remote court in the state. It would be equivalent to depriving him of his practice, because he would be wholly unable to make a defense, There is much loose language in the books both as to consideration and as to jurisdiction in such proceedings.
While I think the above is sufficient to dispose of the question without going into foreign jurisdictions whose Constitutions, statutes, and public policies, are not familiar to us, still when, and if, we do, we will find that practically all courts that hold that the Supreme Court has jurisdiction in an original proceeding to disbar are founded upon either constitutional provision or statutory provisions under which the Supreme Court admits the attorney to practice, or under statutes authorizing that court to disbar him.
The Constitutions of the different states vary in important particulars upon the jurisdiction of their courts of final appellate jurisdiction. Many of them authorize the exercise of certain original jurisdiction in that court.
I cannot agree with the majority opinion that this proceeding is not a judicial trial. Under all the authorities it is a judicial proceeding. It requires that specifications *912
be made of misconduct or unprofessional acts committed for which, or on account of which, the disbarment is sought. The hearing, being judicial, must be governed as other causes as to evidence, etc. People v. Amos,
I do not agree with the majority of the court that it is necessary to overrule Ex parte Brown, 1 How. 303. It has been already overruled, by necessary implication, by Watson v. Williams,
In Adams v. Bank, 75 Miss., at page 719, 23 So. 395, 396, Judge TRULY, speaking for the court, said: "The case of Huntley v. Winona Bank,
In Black's Law of Judicial Precedent, page 37, par. 10, it is said: "A decision is not authority as to any questions of law, which were not raised or presented to the court, and were not considered and decided by it, even though they were logically present in the case and *913 might have been argued, and even though such questions, if considered by the court would have caused a different judgment to be given."
Also I do not see any necessity for overruling the case of Ex parte Cashin,
However, in Ex parte Redmond,
In Hayburn's Case, 2 Dall. 409, 1 L.Ed. 436, it was held that the court can exercise only judicial functions. See, also, U.S. v. Ferreira, 13 How. 48, 14 L.Ed. 45.
Appeals from disbarment proceedings are frequently brought to this court, and sometimes the judgment of the court of original jurisdiction has been reversed. See Ex parte Redmond,
The right to practice any profession is a matter of public concern, and it does not lie with the courts to exercise any inherent control over the subject contrary to the statutes passed by the Legislature. A lawyer's rights, under the theory of the majority opinion in the case at bar and the decisions relied on in that opinion, can only exist by the courtesy of the judge of the court. The rights thus involved cannot be thus subject to the whim and caprice of any judge, nor of any court. Lawyers do not exist for the benefit of the courts solely nor even principally, but for the benefit of the citizen. The Constitution gives the citizen a right, without any lawyer whatever, to conduct his own case in any court of the state. Section 25 of the Constitution provides: "No person shall be debarred from prosecuting or defending any civil cause for or against him or herself, before any tribunal in the state, by him or herself, or counsel, or both." No court can refuse to hear such party appearing and presenting his or her cause to the court. Therefore the existence of attorneys is not essential to the functioning of the courts, and this is recognized by the Constitution, the source of all power of every department or office of government, whether such office be a judicial office, or not.
As a matter of fact, many cases in inferior courts, such as justice of the peace, and other inferior courts, are so conducted and justice administered. Section 26 of the Constitution gives like right to be heard by himself or counsel or both, in all criminal prosecutions.
It is not necessary, therefore, for any court to have a lawyer to aid in the discharge of its functions in administering justice. It is, of course, highly convenient and desirable, but not essential. *915
The existence of lawyers is, of course recognized by the Constitution, as stated in the majority opinion. An applicant to practice law must have certain qualifications, and the judges of the several superior courts must be lawyers having practiced five years before being elected for that position. It is manifest therefore that any person having the necessary legal learning to fill the office of judge of the superior courts must have sufficient legal knowledge and skill to conduct a lawsuit. A lawyer's function, however, is not limited to the courts. He serves a very useful, not to say essential, function in the business life of the country. In this modern age many of the best lawyers of the country seldom go into the courts for the trial of cases. They advise their clients, prepare their contracts, and other legal papers, and pass upon titles and legal rights, and are so essential to the existence of society that society, as distinguished from the courts, has a vital interest in their existence, and the conditions under which they shall follow their profession. The right of a lawyer to pursue his profession and reap the fruits and emoluments thereof can only be taken from him by judicial trials.
This government never intended to place any arbitrary power and uncontrolled discretion anywhere. It is contrary to conception of our government that such power exists beyond the legislative control. The people, in framing the Constitution, retained the right to limit the legislative power, and have done so in many instances. The doctrine of inherent power, in the sense that it means uncontrolled power, is one of the most dangerous to free government that can be imagined. The examination and study of constitutional law and government has rather impressed me that the restraints imposed by law for the public good are frequently broken through by officers exercising power. It seems to be a baneful tendency among men to want unrestrained power. *916
The framers of our Constitution, aware of this tendency, sought to restrict and limit the delegated powers, and did, if language means anything. But there must be, in every government, somebody who is the final judge of the meaning and effect of these restraints. The court of final appeals in this state has therefore been delegated with the power to assume such office, and to pass upon the meaning of constitutional restraints. No danger can come from the exercise of granted powers, for the exercise of these is by common consent, and their abuse may be easily seen and proper corrections made. But, when implications are resorted to, it is not easily seen where they will lead. Usurpation is one of the most deadly political sins, and is scarcely less dangerous than treason itself. The doctrine of inherent power is doubly dangerous when exercised by a body over whose action no other tribunal can pass judgment. The Supreme Court of Mississippi is the body which passes finally upon all questions of state law, including its own powers. Every other body is legally bound by its decisions upon such questions, and it may usurp power by drawing to itself powers not conferred which can only be corrected by constitutional amendments, and it cannot be wholly corrected by such amendment. The amendment will only be effective in the future, but what is done by the action of usurpation until the amendment becomes effective becomes of force and cannot be remedied at all. The rights of life, liberty, and property, within the limits of state action, can be wholly destroyed in certain cases and persons, if the court may assume powers not conferred upon it. To serve temporary ends or purposes, however pressing the necessity may appear, should not cause us to depart from the limitations placed upon our power and jurisdiction. The Constitutional Convention was a body of wise and experienced men, and they well knew that the triers of fact would often be subjected to temptations by popular pressure, and that *917 they would sometimes be influenced by a dominant and dictatorial public opinion. They intended to have a tribunal removed from the atmosphere of the trial and away from the influence of the passions of the hour, to review the trial so that impartial justice should be done in all cases. It was not the purpose of the convention to have this court exercise any original jurisdiction whatever, and this court has, in effect repeatedly so declared. Every citizen should have absolute fair and impartial justice, and, if he gets this, in many cases it will be necessary to have it reviewed by another court than the one which acted in the atmosphere of public opinion and passion. This court has frequently reversed cases because of the evils of pressure by an indignant and dominant opinion existing at the time of the trial, but which could not reach the Supreme Court. This court is not different from other institutions where fallible men must function. We should be secluded from the atmosphere of the trial and deliberate in a place that "is imperviously padded against popular clamor and passion."
I am therefore convinced, beyond all reasonable doubt, that we have no power to entertain original jurisdiction in this proceeding.
I know the judges of this state, and I believe each of them will exercise their powers courageously and wisely as to any who is false to his trust and is unworthy of the profession. I think that we should leave to them original disbarment proceedings with the right to have their actions reviewed in the calm deliberate atmosphere of this court.
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