37 S.E.2d 187 | Ga. | 1946
The statute of limitations approved February 9, 1943, (Ga. L. 1943, p. 245), has no application where the disbarment proceedings are based on conviction for crime involving moral turpitude. Since the disbarment in this case is unaffected by such statute of limitations, it is unnecessary to answer the second question certified by the Court of Appeals.
"`Section 1. Chapter 9-5 of the official Code of 1933, entitled "Disbarment Proceedings," is hereby amended by adding a new section to be appropriately numbered, which new section shall read as follows:
"Limitation of Actions. No proceedings for the disbarment of any attorney shall be instituted or prosecuted in any of the courts of this State unless such proceedings shall be instituted or begun within four years after the commission of the act complained of. Provided, however, this limitation shall not run so long as the offender or the offense is unknown.
"`Section 2. All laws or parts of laws in conflict with this act be, and the same are hereby repealed.'
"In a case where disbarment proceedings against an attorney were begun on February 8, 1945, charging that on January 15, 1944, the attorney was convicted of an offense involving moral turpitude, and where it appeared that said offense was committed more than four years before the institution of the disbarment proceedings, did the statute of limitations, under the above-quoted act, begin *441 to run from the date of said conviction, or did it begin to run from the date of the commission of the act involving moral turpitude? The provision in the act that the limitation shall not run so long as the offender or the offense is unknown is not here involved.
"2. If the answer to the first question is that the statute of limitations began to run from the date of the offenses involving moral turpitude, is the act quoted in question one inapplicable in this case, because it was approved on February 9th, 1943, and the dates of the two offenses, upon which the defendant was convicted, were June 29th, 1940, and September 23rd, 1940, respectively? See, Code, § 102-104."
When an attorney at law has been indicted on a charge involving moral turpitude, the solicitor-general of the superior court of the county of the attorney's residence may bring an action to disbar such attorney. There is no statute or established rule of law in this State requiring that a solicitor-general shall bring a petition for the disbarment of an attorney charged in an indictment with a crime involving moral turpitude. If the solicitor-general elects to file a petition for the disbarment of an attorney charged in an indictment with a crime involving moral turpitude, the trial court may, depending upon the evidence in support thereof, and in the exercise of the discretion vested in the court, grant or refuse the prayers of the petition for disbarment. See Williford v. State,
Thus we find that the trial court may exercise a discretion where the disbarment is sought on an alleged act involving moral turpitude. But where the disbarment is based upon final conviction for a crime involving moral turpitude, the discretion vested in the court is terminated as a matter of statutory law. The disbarment in this case is based upon a final conviction for a crime involving moral turpitude, and not on an alleged act or charge of a crime. The defense to the disbarment proceedings (as shown by briefs filed in this court by the plaintiff in error is based solely upon the statute of limitations quoted by the Court of Appeals in its first question certified to this court. This statute provides that no attorney shall be disbarred "unless proceedings shall be instituted or begun within four years after the commission of the act complained of." It is insisted that the words, "commission of the act complained of." will preclude disbarment of the attorney in this case, even though the disbarment is based upon a final conviction *443
for the crime charged in the indictment. This contention is not sound. An act is "something done or established. In its general legal sense the word may denote something done by the individual." 1 Bouvier's Law Dictionary (3d, Rev.) 115; Green
v. State,
Immediately following that part of the statute of limitations heretofore quoted, and here relied upon by the attorney, is this proviso: "Provided, however, this limitation shall not run so long as the offender or the offense is unknown." This limitation, construed in connection with the words "commission of the act complained of," clearly and undeniably demands the conclusion that the statute of limitations enacted by the General Assembly is applicable only where the disbarment proceedings are based on an "act" of the attorney, and that such statute has no application where the proceedings are based on conviction for a crime involving moral turpitude. Certainly a final conviction is not an instance where "the offender or the offense is unknown."
Courts of last resort in other States have held that where an attorney is convicted of a crime involving moral turpitude, no proceedings to disbar are necessary, that the court where such conviction is had may simply strike his name from the roll of attorneys. "It is held that an attorney is not unconstitutionally deprived of his rights by striking his name from the roll, without further hearing, upon his conviction of a crime involving moral turpitude, since he had his day in court when he was put on trial *444
for the crime; particularly is the attorney not entitled to notice by citation or other process when the record ofconviction is, by statute, made conclusive evidence againsthim." (Italics supplied.) 5 Am. Jur. 435, § 289; Re Collins,
The General Assembly is conclusively presumed to know the law which they seek to amend, revise, repeal, or modify by a statute of limitations, and the construction of such law by our courts of last resort. Thus, the General Assembly is presumed to have known that, as held in this opinion, there are two times or occasions when an attorney at law may be disbarred for a crime involving moral turpitude: first, after the commission of the act and either before or after indictment, but before final conviction; and second, he must be removed as a matter of statutory law after final conviction. If the General Assembly desires that an attorney at law convicted of a crime involving moral turpitude shall not be disbarred after a given period of time, it has yet to say so. It might have said in the same act, and after the words "commission of the act complained of," "or within [some time determined by the Assembly] after the judgment of final conviction." In such an instance it might be said that the General Assembly desired that an attorney at law should be removed only within a given period after his final conviction. The General Assembly has not so stated, and to hold otherwise would require such a strained and unreasonable construction as to be entirely unauthorized, and in the language of this court inTrustees of First M. E. Church, South v. Atlanta,
Since proof of good character has always been a prerequisite for admission to the bar of this State, this court will not presume that the General Assembly intended that an attorney at law would be protected against disbarment proceedings after final conviction, where no reference is made in the limitation statute to disbarment on a final conviction for a crime involving moral turpitude, such conviction amounting to an adjudication that the attorney does not possess that which was required for his admission.
Judge MacIntyre, in his able opinion for the Court of Appeals in Williford v. State, supra, stated that a disbarment proceeding is not intended for punishment, but to protect the courts from the official ministration of persons unfit to practice therein. We think that the courts owe a duty to the public and to society, and that attorneys found guilty of a crime involving moral turpitude are required to be, and should be, disbarred. Under the Const., art. 6, sec. 2, par. 5, this court is a court for the correction of errors of law, and it does not possess any legislative powers or discharge any legislative functions. If we were authorized to do so, we might revise the statutory provision that an attorney disbarred for a crime involving moral turpitude can never be reinstated. But however much our sympathies may extend to the unfortunate young attorney in this instance, we are powerless to restore that which he has lost, his right to practice law in the courts of this State.
All the Justices concur, except Atkinson and Wyatt, JJ., whodissent.