63 S.E. 190 | N.C. | 1908
Lead Opinion
Because of the novelty of the question raised by the demurrer of the respondent, and the importance to the public welfare of the correct interpretation of the statute under which tbis proceeding was instituted, we have given the record a careful and anxious consideration. Tbe statute of 1907 (chapter 941) was enacted at the instance of the State Bar Association for the purpose of enabling it to more effectually discharge its duty to the people of the State, the courts and the bar by excluding from the profession unworthy members. This is the first instance in which the courts have been called upon to interpret and enforce its provisions.
Section 1 provides: “That an attorney at law must be disbarred and removed for the following causes: (a) Upon bis being convicted of a crime punishable by imprisonment in the penitentiary, (b) When any judgment is rendered against him for money collected by him as an attorney and retained by him without any bona fide claim thereto or any part thereof.
“Sec. 2. Tbat an attorney at law may be disbarred,” etc., naming two causes.
Tbe motion to disbar the respondent is based upon tbe first, section. It will be observed tbat, among the several causes for which an attorney must or may be disbarred, tbis is the only
In Wisconsin v. Insurance Co., 127 U. S., 265, it is said (p. 291) : “The proper place for punishment is where the crime was committed, and no society takes concern in any crime but what is hurtful to itself.” Karnes Eq. (3 Ed.), 326. When we consider the question upon the “reason of the thing” and sound State policy, the wisdom of the law, as we find it laid down with practical uniformity, is manifest. It is the natural interpretation of all statutes creating offenses and defining conduct, the doing of which is made indictable or subject to' penalties, to refer them solely to the commission of such acts within this State. In r.espect to punishment of crimes and imposition of penalties, the States act within their own territorial limits and the Federal Government within its own sphere. ■ No State can administer the Federal statutes, maintain prosecutions for-their violations or impose punishments or j>enalties, Parlcer, O. J., in Green’s case, supra, wisely says: “Whether the facts which would be here deemed an infamous crime are the same which constitute the like offense in the country from which the record comes, the court will have no means of knowing with certainty. The crime of treason is known to be different in different countries. What is felony also in our country may not be felony in another, and it is competent for the Legislature of every nation to attach disabilities to the commission of offenses which by the laws of other nations may be wholly without such consequences.” We know that the Federal Government punishes practically all offenses with imprisonment in the penitentiary. Violations of the revenue laws, often technical and involving no moral turpitude whatever, may be so punished. Again, acts which in our State are deemed misdemeanors, punishable by fine or a short term in the county jail or house of correction, are deemed of grave character and punished by imprisonment in the State’s Prison in other States. Each State makes it's penal codes, and
It is insisted that, however this may be in regard to the act of 1907, the respondent may be disbarred by the court under the power conferred in section-211, Eevisal. It is suggested that this statute is by implication repealed by the act of 19 07. We incline to the opinion that the last statute is not in conflict with sections 211 and 212 of the Eevisal. It is not necessary that we should decide the question, because, while the language clearly restricts the power of the courts to disbar an attorney, the exceptive language, “unless he shall have been convicted in open court or confessed himself guilty of some criminal offense, showing himself unfit to be trusted,” etc., are to be interpreted in the same way as the word “convicted,” in the act of 1907; hence the same obstruction is met in enforcing section 211 against the respondent. The history of this legislation may be learned and the purpose of the Legislature understood by reference to Moore, ex parte, 63 N. C., 397; Biggs, ex parte, 64 N. C., 202, and Schenck, ex parte, 65 N. C., 353. The last case was argued with a wealth of learning by the most eminent members of the Bar of the State. The Court held that the act of 1871 (Eevisal, see. 211) was constitutional;, that it did not deprive the court of any of its “inherent powers”; that the court had no power to disbar an attorney fo* causes other than those
The cause will be remanded to the Superior Court of Buncombe, with direction to set aside the order disbarring respondent, and taking such further action in the premises as may be in accordance with the law. The General Assembly convenes
Remanded.
Dissenting Opinion
dissenting: I am unable to agree with my brethren in the conclusion they have reached in this proceeding. It is brought at the instance of the Bar Association for the purpose of depriving the respondent of his right to practice law in the courts of this State. It is not criminal in its character, but purely civil; instituted, not for the purpose of punishment, but with the wholesome object of preserving the courts of justice from the official administration of a person unfit to practice in them. This is well settled in this country) as well as in Great Britain, where the courts have exclusive control over the admission as well as the disbarment of all practitioners before them. Ex parte, Wall, 107 U. S., 288; State v. Wenton, 5 Pac. Rep. (Oregon), 342; State v. Finn, 52 Pac. Rep. (Oregon), 759; In re Crum, (North Dakota), 75 N. W., 257; Scott v. State (Texas), 24 S. W., 789.
Inasmuch as the proceeding is merely civil in its nature, the statute of 1907, under which it is brought, cannot be ex post facto in its character, and no such question can arise. Watson v. Mercer, 8 Peters, U. S., 110; Ogden v. Sanders, 12 Wheat., U. S., 267.
The charges preferred against the respondent, of a most serious character, are as follows: “(2) That the said I. N. Ebbs, on 4 December, 1903, was convicted in the United States Court for the Eastern District of Louisiana upon a certain bill of indictment, a copy of which is attached hereto, and that the said Ebbs was duly sentenced by the said court to a term of imprisonment, after the jury had returned a verdict of guilty. The crime of which he was so convicted was punishable by imprisonment in the penitentiary.” The offenses of which the respondent was convicted, as set out in the petition, are as follows: “Unlawfully, knowingly and feloniously uttering and publishing as true a certain receipt. ■ (3) Unlawfully, feloniously and knowingly transmitting and presenting to the General Land Office of the Department of the Interior of the United States a certain false
The record shows that respondent was duly tried by a jury at December Term, 1903, of the Circuit Court of the United States, at New Orleans, convicted and sentenced to pay a fine and to be imprisoned, and that he was imprisoned accordingly.
The respondent, by his demurrer to the petition, admits the truth of the facts stated therein; that is, he admits that he has been convicted by a jury of the offenses charged, punishable by imprisonment in the penitentiary.
It is useless to discuss the character of the crimes of which the respondent has been convicted. It will be admitted by all that one who has committed them should not be permitted to practice in the courts of the State. I concur with my brethren that our courts have power to investigate such charges and, if they are sustained, to disbar the respondent. But I differ from them in holding that any investigation is now necessary. The learned judge who heard this matter in the court below, when he overruled the respondent’s demurrer, gave him leave to file an answer, which he declined to do. The respondent should have availed himself of his right to answer anfl deny the truth of the allegations contained in the bill of indictment, which is made a part of the petition, and should have insisted that the Court here investigate the truth of the charges preferred against him. If the judge declined to give him a trial the respondent could have appealed. Instead of doing that, when his demurrer was overruled he stands mute and refuses to answer. What honorable attorney, fit to practice in our courts, would stand silent in the presence of such accusations? He should have courted investigation. His refusal to answer and deny the truth of the accu
It must be conceded tbat those words are broad enough to cover a conviction and sentence' to the penitentiary under the laws of any State or of the United States. Tbat being so, I know of no canon of construction which requires a more restricted construction to be given them. One of the recognized rules of construction declares tbat, when possible, such construction should be given a statute as will effectuate the object sought to be accomplished. Tbe undoubted purpose of the act was to remove from the legal profession those of its members who are unworthy of the respect and confidence of the people. Tbe end to be attained is the protection of those’who deal with members of the bar, and not punishment.
The public welfare, as well as the respect due the profession of the law, requires tbat its practitioners enjoy the confidence of the community. “It is not enough,” says the Supreme Court of Connecticut, “for an attorney tbat be be honest. He must be tbat and more. He must be believed to be honest. It is absolutely essential to the usefulness of an attorney tbat be be entitled to the confidence of the community wherein be practices.” County Bar v. Taylor, 60 Conn., 11.
My learned brother, Justice Walker, has written most impressively of tbe high character which should be tbe standard for our profession, and of tbe grave consequences which must follow its debasement. I cannot hope to add anything to wbat be has so well said. In re Applicants, 143 N. C., at p. 33.
Again, if those only are to be excluded who commit crimes against the State of North Carolina we can never exclude those who are felons under the laws of the United States, even though they “be with treason damned.”
Under the construction given the statute, an attorney of this State might be convicted and sentenced for larceny in a distant
I am convinced that the language of the statute is comprehensive enough to exclude from our courts all who have been convicted in any court of the United States, or of any State thereof, of a crime which under the laws' of such jurisdiction is punishable by imprisonment in the penitentiary, a universally recognized method of punishing criminals. I feel sure such was the intent of the. Bar Association in framing the act, and that such was the purpose of the General Assembly in enacting it, and I think it should be so construed.
Lead Opinion
BROWN, J., and CLARK, C. J., dissenting. Pursuant to the provisions of chapter 941, Public Laws 1907, the Committee on Grievances of the North Carolina Bar Association filed with the Solicitor of the Fifteenth Judicial District an accusation stating that, upon investigation of certain charges preferred before them against I. N. Ebbs, a licensed attorney and member of the Bar of the State, residing in said district, the said committee were of the opinion that said charges should be further investigated by the court, as provided by the statute. A copy of the charges and the records upon which they were founded accompanied the report. The solicitor thereupon caused the report and the records, together with an accusation preferred by himself embodied in the report, to be served on said attorney. (45)Hon. R. B. Peebles, Judge presiding, thereupon made an order reciting the proceedings had before the committee, directing the said I. N. Ebbs to appear before him, at Asheville, N.C. on a day named, and *38 answer said charges. On the return day the said I. N. Ebbs duly appeared, being represented by counsel. The committee was represented by the solicitor of the district and other counsel. The accusation was founded upon certified records from the Circuit Court of the United States, Eastern District of Louisiana, showing a bill of indictment returned by the grand jury, charging respondent with forgery in six counts. The specific acts charged consisted in unlawfully, falsely and feloniously forging and altering certain receipts, accounts, etc., with intent to defraud the United States. Upon a trial before said court, respondent was convicted upon all of the counts except the first and sentenced to imprisonment in the Parish Prison of the Parish of New Orleans for the term of ninety days and to pay a fine of $1,000.
Respondent demurred to the evidence, as follows:
"The respondent, I. N. Ebbs, with leave of court, objects to the sufficiency of the accusation preferred by the solicitor for the State, as amended, in the above entitled proceeding, and says:
"1. The said accusation contained no cause for the disbarment of respondent, except an allegation of a conviction of the defendant of a crime alleged to be punishable in the penitentiary, before and by the United States District Court for the Eastern District of Louisiana.
"2. That said accusation does not charge this respondent with having been convicted of any crime since the passage of chapter 941, Laws 1907.
"3. That the only conviction alleged in said accusation is a conviction for an offense not punishable in the penitentiary by the laws of North Carolina, even if the offense had been committed within the State of North Carolina."
His Honor overruled the demurrer and rendered the following judgment:
"It is ordered, adjudged and decreed that the said I. N. Ebbs be (46) and he is hereby disbarred as an attorney at law from the practice as an attorney and counselor in the courts of this State, and that the name of the said I. N. Ebbs be stricken from the roll of the practicing attorneys of the courts of this State, and that he henceforth be denied any and all the rights or privileges of an attorney and counselor in the courts of the State of North Carolina.
"The clerk of this court is hereby ordered to send a certified copy of this judgment to the Clerk of the Superior Court of Madison County, North Carolina, and the clerk of Madison County will enter the same in the judgment docket of his court."
Respondent excepted and appealed. Because of the novelty of the question raised by the demurrer of the respondent, and the importance to the public welfare of the correct interpretation of the statute under which this proceeding was instituted, we have given the record a careful and anxious consideration. The statute of 1907 (chapter 941) was enacted at the instance of the State Bar Association for the purpose of enabling it to more effectually discharge its duty to the people of the State, the courts and the bar by excluding from the profession unworthy members. This is the first instance in which the courts have been called upon to interpret and enforce its provisions.
Section 1 provides: "That an attorney at law must be disbarred and removed for the following causes: (a) Upon his being convicted of a crime punishable by imprisonment in the penitentiary. (b) When any judgment is rendered against him for money collected by him as an attorney and retained by him without any bona fide claim thereto or any part thereof.
"Sec. 2. That an attorney at law may be disbarred," etc., naming two causes.
The motion to disbar the respondent is based upon the first section. It will be observed that, among the several causes for which an attorney must or may be disbarred, this is the only one in which the court is required to act upon a record, and the respondent is not permitted to offer anything by way of defense or exculpation. The (47) court can not inquire into his guilt. The production of the record, showing a conviction, makes it the imperative duty of the court to disbar him. Without expressing any opinion as to the wisdom of so drastic a statute, we are not permitted to enlarge its terms by construction. The respondent says that by a recognized canon of construction the penalty must be confined to a conviction had in a court of this State. The case was thoroughly argued before us, and the industry of counsel has afforded us much aid. Counsel for respondent rely upon the rule laid down by Mr. Justice Gray in Logan v. United States,
In Wisconsin v. Insurance Co.,
It is insisted that, however this may be in regard to the act of 1907, the respondent may be disbarred by the court under the power conferred in section 211, Revisal. It is suggested that this statute is by implication repealed by the act of 1907. We incline to the opinion that the last statute is not in conflict with sections 211 and 212 of the Revisal. It is not necessary that we should decide the question, because, while the language clearly restricts the power of the courts to disbar an attorney, the exceptive language, "unless he shall have been convicted in open court or confessed himself guilty of some criminal offense, showing himself unfit to be trusted," etc., are to be interpreted in the same way as the word "convicted," in the act of 1907; hence the same obstruction is met in enforcing section 211 against the respondent. The history of this legislation may be learned and the purpose of the Legislature understood by reference to Moore, ex parte,
The cause will be remanded to the Superior Court of Buncombe, with direction to set aside the order disbarring respondent, and taking such further action in the premises as may be in accordance with the law. The General Assembly convenes on the first Wednesday in (58) January, 1909, and, if it see fit, a very simple amendment to section 211 of the Revisal will clothe the court with full power to proceed.
Remanded.
Dissenting Opinion
dissents upon the ground that the commission of a felony anywhere makes the party an unfit member of an honorable profession, and is a ground for disbarment under .our statute (Revisal, sec. 211). If it be conceded that the “conviction” thereof in another jurisdiction is not such proof of the fact as our statute contemplates, yet when the judge gave the respondent leave to file an answer denying the commission of the offense he did not do so. The charge, based on a certified judgment upon conviction in the United States Circuit Court, not being denied, must be taken as admitted in open court (Re-visal, sec. 211), for this is a civil proceeding. Our courts could not “convict” the respondent for a felony committed elsewhere, with a view to punishment for crime, but in a civil proceeding for disbarment it could inquire as to the fact whether he committed the act alleged. Offered the opportunity in open court, he did not answer the charge, and, there being no issue raised, the court properly gave judgment.