32 Wash. 50 | Wash. | 1903
Lead Opinion
The opinion of the court was delivered hy
This is a disbarment proceeding, brought originally in this court against the respondent, based substantially upon the following allegations, namely: That at the time James O. Waugh applied for admission to the bar of the superior court of Skagit county, state of Washington, to wit, on December 1, 1890, he did not possess the qualifications requisite for admission to the bar, in that he was not a citizen of the United States, nor did he ever study law with an attorney in this state for the time required, nor did he possess a certificate from the supreme court of any other state or territory, nor had he ever been admitted to practice law in any other state or territory of the United States; that at the time he secured a certificate of admission to practice law in this state he concealed his disqualification, and thereby committed a fraud upon the court. A demurrer has been interposed to the petition, which raises the question of the jurisdiction of this court
“It thus appears that the jurisdiction of the supreme court and of the superior courts of this state is expressly defined by the constitution, and reference must therefore be had to that instrument in order to determine the question of jurisdiction in any particular case.”
Sections 4650 and 4663 of Ballinger’s Code enact substantially the provisions of the constitution above referred to. Some suggestions have been made that by reason of the fact that the law confers the power of admission on this court, it necessarily follows that the power to disbar is
The demurrer is sustained.
Mount and Hadley, J'J., concur.
Dissenting Opinion
(dissenting)- — The sole question presented for determination in this proceeding is whether this court has jurisdiction, in the first instance, to disbar attorneys who have been admitted to the bar of this state.
The majority of the court has determined that it has not such jurisdiction, but I am constrained to dissent from that conclusion.
It is true that the jurisdiction of the supreme court and superior courts of this state is defined by the constitution. And it is also true that original and exclusive jurisdiction of disbarment proceedings is not vested in the superior courts by any express provision of the constitution; and I do not thinlc that it ought to be announced as the law of this state, that such exclusive jurisdiction must necessarily be inferred from the general provisions of that instrument, mentioned in the majority opinion. Long prior to the adoption of our constitution, it was the settled rule that all courts of general or superior jurisdiction are vested with certain necessary and inherent powers, among which is the power of controlling their own officers. And, in my
“The power to strike from the rolls is inherent in the court itself. . . . Statutes and rules may regulate the power, but they do not create it. It is necessary for the protection of the court, the proper administration of justice, the dignity and purity of the profession, and for the public good and the protection of clients. And 'where certain grounds are specified by the statute, this does not necessarily exclude striking from the rolls for causes not specified. A statute is not to be construed as restrictive of the general powers of the court over its officers.” Weeks, Attorneys (2d ed.), pp. 154-155.
And Judge Works, in his valuable treatise on Courts and Their Jurisdiction, at § 27, p. 170, observes:
“All courts of general and superior jurisdiction are possessed of certain inherent powers not conferred upon*57 them hy express provisions of law, but which are necessary to their existence and the proper discharge of the duties imposed upon them by law. Of these inherent powers, the following may be enumerated: ... to suspend or disbar attorneys, or strike their names from the rolls.”
As to the power of appellate courts in cases such as the one at bar, that author, in § 21, p. 98 of his work, above cited, lays down the law as follows:
“A court may be vested with both original and appellate jurisdiction, and courts whose jurisdiction is essentially and so far as their express authority is concerned entirely appellate, are possessed of certain inherent and incidental powers, which belong to every court of general or superior jurisdiction, whether its jurisdiction be original or appellate.”
And it seems to me that the above quotation constitutes a very clear and correct statement of the law upon the subject under consideration, as announced by the courts of last resort throughout this country.
That appellate courts habitually and unhesitatingly assume jurisdiction to strike the names of attorneys from the rolls, or to suspend them from practice, for unprofessional conduct, is evidenced by the following cases: In re Whitehead, 28 Ch. Div. 614; Penobscot Bar v. Kimball, 64 Me. 140; People ex rel. Elliott v. Green, 7 Colo. 237 (3 Pac. 65, 374, 49 Am. Rep. 351) ; In re Wellcome, 23 Mont. 140 (58 Pac. 45) ; State ex rel. Benton v. Baum, 14 Mont. 12 (35 Pac. 108) ; In re Badger (Ida.), 35 Pac. 839 ; In re Kowalsky (Cal.), 35 Pac. 77; In re Tyler, 78 Cal. 307 (20 Pac. 674, 12 Am. St. Rep. 55); Dean v. Stone, 2 Okl. 13 (35 Pac. 578) ; In re O-, 73 Wis. 602 (42 N. W. 221).
Although, no statute is necessary to authorize this court to entertain a proceeding of this character, the legislature has, nevertheless, provided that an attorney and counselor may be removed or suspended by any court of record of the state for certain specified causes, and that, in all cases of removal or suspension by a superior court, the judgment or order of removal or suspension may be reviewed on appeal by the supreme court. Bal. Code, § 4775. And a proceeding to remove or suspend an attorney may be taken by the court of its own motion, for matter within its own knowledge, or upon the information of another, and in either case the party has the privilege of making his defense. Bal. Code, § 4776. “Such proceedings shall be by motion a.nd answer, and evidence may be examined on either side.” Bal. Code, § 4777.
While these legislative declarations as to the power of courts of record to remove or suspend members of the bar do not, as I have endeavored to show, create such power, still they are entitled to respectful consideration as expressions of the will of the law-making body of the state upon a question of vast importance to the courts, to the legal profession, and to the public. But, so far as the procedure is concerned, the statute is mandatory; for that is a matter within the exclusive province of the legislature.
In In re Lambuth, 18 Wash. 478 (51 Pac. 1071), which was a proceeding to disbar an attorney, and which was instituted by the attorney general at the instance of the court itself, this court exercised what it then understood to be one of its inherent powers, and declared the law, in its opinion, in language almost identical with that quoted above from Weeks on Attorneys. It is now said,
And it has heretofore been generally conceded, as a matter of course, that all courts of record have inherent power to control the conduct of and to suspend or remove such officers. But this usual and salutary rule, I regret to say, is abrogated by the decision in this case, and this court will hereafter be powerless to remove or suspend an attorney for just cause, without the interposition and assistance of the superior court. I think the demurrer should be overruled.
Fullerton, O. J., concurs in dissenting opinion.