252 Mo. 369 | Mo. | 1913
Lead Opinion
This is an original action by way of a writ of certiorari directed to the St. Louis Court of Appeals in a case entitled “In the Matter of Ellroy V. Selleck.” The pleadings and facts can be shortly stated. The Bar Association of St. Louis, Missouri, through their grievance committee, filed charges against Selleck in the St. Louis Court of Appeals, and asked that Selleck be disbarred. These charges were varied in degree and were five in number, as indicated by the several counts in the petition filed by. this grievance committee of the Bar Association: We need not go into the details of all these charges, because only two are here involved. The St. Louis Court of Appeals appointed two most excellent lawyers of that bar to hear the charges against Selleck, and these gentlemen made their report to the court finding that Sel-leck was guilty as to the fourth and fifth charges in the petition for disbarment, but not guilty of the first,
We need not go into details of the charges contained in the fourth and fifth counts of the petition upon which Selleck was found guilty. It will suffice to state that there was a finding of guilty upon these two counts, and that they in substance and fact charged Selleck with matters which under the law make up and constitute felonies under the criminal laws of the State. In other words, they were not only indictable offenses, but indictable offenses of the graver kind, i. 'e., felonies. When the report of the commissioners came in, Selleck by his counsel filed exceptions thereto, and among other things .those exceptions in paragraph 16 and 17 thereof contained the following:
“Under the pleadings, the information or charges, the court has not the authority or power to revoke respondent’s license to practice law in the State of Missouri.
‘ ‘ This court has not jurisdiction in proceedings of this character. It has no jurisdiction, authority or power to revoke respondent’s license to practice law in the State of Missouri. Respondent was duly admitted to practice law and licensed to practice law in the courts of the State of Missouri by the Supreme Court of Missouri, the sole court with power to issue license to attorneys to practice law in this State.
“The evidence is uncontradicted that the acts of the respondent complained of were not committed in reference to or in connection with, any matter pending in this court, therefore the question of the authority inherent in a court to control the conduct of attorneys practicing at its bar does not arise.
*376 “This court, with, certain marked and definite exceptions, is designed to be strictly appellate in its character, duties and functions. The Constitution of the State of Missouri, in addition to its appellate jurisdiction, abridges this court’s powers to issuing writs of habeas corpus, quo warranto, mandamus, certiorari and other original remedial writs. The jurisdiction of an appellate court conferred by the Constitution cannot be enlarged, although it may be regulated and restricted by legislative enactment.”
These exceptions the court overruled, and entered a judgment, the material portion of which reads:
“It is, therefore, the judgment of the court that the respondent, Ellroy V. Selleck, Esq., who as appears from the records of this court is an enrolled member of its bar, be and he is hereby debarred from the further practice of the profession of an attorney and counselor-at-law under the laws of this State in any of the courts thereof, and especially from the bar of this court; that his license to practice law and as a member of the bar of this State be and the same is hereby canceled and annulled and to be henceforth held as naught. Furthermore, that the relators have and recover the cost of this proceeding, to be taxed by the clerk according to law, of and for the respondent, Ellroy V. Selleck, and that execution issue.”
Later, Selleck filed a motion for rehearing, in which the foregoing and other questions were duly preserved. This motion the court overruled, and Selleck then moved to have the cause transferred to this court upon the said several constitutional questions saved and preserved as aforesaid. This motion was likewise overruled. The court, however, entered -a new judgment in lieu of its former judgment of December 3, 1912, but in the material parts it is in substance the same as the one we have quoted herein above. In other words, it absolutely debars Selleck from the further practice of his profession, in Missouri,
“Now at this day comes the relator, Ellroy V. Selleck, and moves this honorable court to vacate, set aside and annul the judgment rendered by the St. Louis Court of Appeals on the 3d day of December, 1912, in the case entitled in said court, ‘In the Matter of Ellroy V. Selleck, No. 13209,’ and to quash the summons and all the other proceedings therein and to adjudge the costs that have already accrued in said case in said Court of Appeals and the costs that may accrue herein against Eugene S. Wilson, Luther Ely Smith, Guy A. Thompson, William F. Woerner and Harry E. Sprague, complainants in said case, because it appears from the certified copy of the record in said case filed herein by the judges of the St. Louis Court of Appeals, in obedience to the writ of certiorari issued herein against said judges, that said Court of Appeals of the city of St. Louis had no jurisdiction to render judgment against Ellroy V. Selleck in said case and that the judgment rendered by them in said case on the said 3d day of December, 1912, was and is in excess of the jurisdiction of said St. Louis Court of Appeals, for reasons following:
“First. Said St. Louis Court of Appeals had no jurisdiction to try, hear and determine said cause entitled ‘In the Matter of Ellroy V. Selleck,’ because the validity of section 952 of the Revised Statutes of Missouri of 3909 is drawn in question by reason of the contention of respondent that said section is in violation of section 12, article 6, of the Constitution of Missouri*378 and sections 1, 3, and 5, of the Amendment to the Constitution of Missouri of 1884.
“Second. Said St. Louis Court of Appeals had no jurisdiction to try, hear and determine said ease against Ellroy Y. Selleck because the construction of section 12, article 6, of the Constitution of Missouri and sections 1, 3, and 5, of the Amendment to said Constitution of 1884 is involved.
“Third. Said court had no jurisdiction to try, hear and determine said cause, because the construction of sections 12, 22, and 30 of article 2 of the Constitution of Missouri is involved.
“Fourth. ■ Said court had no jurisdiction to try, hear, and determine said cause, because the construction'of the Fourteenth Amendment of the Constitution of the United States is involved and the proceedings in said case in said St. Louis Court of Appeals are in violation of said constitutional amendment in this, that said proceedings deny to Ellroy Y. Selleck the equal protection of the law and deny to Ellroy Y. Selleck due process of law.
“Fifth. Because the judgment rendered herein by said St. Louis Court of Appeals is in excess of its jurisdiction, being in violation of the provisions of section 958 of the Bevised Statutes of Missouri of 1909.”
The foregoing sufficiently outlines the case for all present purposes.
I. This record raises at least two questions with reference to the jurisdiction of the St. Louis Court of Appeals in a casé of this kind. These questions are
“Said court shall have power to issue writs of habeas corpus, quo warranto, mandamus, certiorari, and other original remedial writs, and to hear and determine the same.”
The case in hand does not fall within these granted powers, and in my judgment the Legislature cannot add to the powers named in the Constitution. The original law was not making a common law court of
I, therefore, have no particular fault to find with the doctrine of inherent power either in contempt or disbarment proceedings, provided we do not go be
II. Conceding now that the St. Louis Court of Appeals has the inherent power to silence a member of the bar in Missouri from practicing his profession, and has the inherent power, under the Constitution,
‘£ Sec. 951. Any attorney or counselor at law who shall be guilty of any felony or infamous crime, or of improperly retaining his client’s money, or of any malpractice, deceit or misdemeanor in his professional capacity, may be removed or suspended from practice, upon charges exhibited and proceedings thereon had, as hereinafter provided.
“Sec. 952. Such charges may be exhibited and proceedings thereon had in the Supreme Court, the St. Louis Court of Appeals, the Kansas City Court of Appeals, or the circuit court of the county in which*381 the offense shall have been committed or the accused resides.
‘‘ Sec. 956. If the charge allege a conviction for an indictable offense, the court shall, on the production of the record of conviction, remove the person so convicted, or suspend him from practice for a limited time, according to the nature of the offense, without further trial.
“Sec. 957. Upon charges other than in the last section specified, the court shall have power only to suspend the accused from practice until the facts shall be ascertained in the manner hereinafter prescribed.”
The italics above are ours.
“Sec. 958. If the charge he for an indictable offense, and no .indictment be found, or, being found, shall not be prosecuted to trial within six months, the suspension shall be discontinued, unless the delay he produced hy the absence or procurement of the accused, in which case the suspension may be continued until a final decision.”
In the case before us the two charges upon which Selleck was found guilty were indictable offenses, i. e., they were felonies. Now section 956, supra, contemplates a case where the charge is that the derelict lawyer has been tried and convicted of an indictable offense. In such case the statute authorizes the trial court to either absolutely disbar the offending lawyer, or to suspend him for a limited time. But the law does not stop here. ■ The next section (957) says: “Upon charges other than in the last section specified, the court shall have power only to suspend the accused from practice until the facts shall be ascertained in the manner hereinafter prescribed.”
How the facts ‘ ‘ shall be ascertained in the mannei hereinafter prescribed” is clearly indicated by section 959, Eevised Statutes 1909, which reads: “The rec ord of conviction or acquittal of any indictable offense
I'hat this is the method of proof contemplated by section 957, supra, is made apparent-by the intervening section 958, which says that if the charge is for an indictable offense, and if no indictment shall be found, or if such indictment be found, but shall not be prosecuted to trial within six months, the suspension formerly made by the court shall be discontinued.
Of course this part of the statutory scheme does not apply to many things for which an attorney might be disbarred, but to my mind it is clear that the legislative intent was to hedge the inherent power of the trial court in all cases where the charges in the disbarment proceeding rise to the gravity of indictable offenses. When these several statutes are given a fair and reasonable'construction, they mean (1) that courts have the power to absolutely disbar a lawyer who stands convicted of an indictable offense, and the record of the conviction shall be conclusive of the facts. [Vide, sections 956 and 959, supra.] (2) But if the charge in the disbarment proceeding be for an indictable offense and no conviction is alleged, then the trial court can only suspend the attorney until the facts shall be ascertained “in the manner hereinafter prescribed.” That manner is upon a trial of the indictment as indicated by section 959, supra. The facts, under the statutory scheme, can be ascertained in m> other manner, where the charges in the disbarment proceeding cover indictable offenses. This to my mind is made clear by the sections of the statute above fully set out. But the lawmakers did not stop here. They have made the matter doubly clear by section 960, Revised Statutes 19091, which reads:
“When the matter charged is not indictable, a trial of the facts alleged shall be had in the court in which the charges are pending, which trial shall be bv the court.”
The very language of section 960 shows that it was never contemplated that the court before which the disbarment proceedings were pending should ascertain the facts in a case where the charges reached the gravity of indictable offenses. The trial of such facts was left to the court having charge of the criminal proceedings, and by section 959, the record-from such court, whether it showed acquittal or conviction, is binding upon the court hearing the disbarment proceedings.
To my mind this statutory scheme is reasonable. A lawyer from a distant county of the appellate district might be brought before the court upon disbarment charges, which charges included indictable offenses. Such lawyer has no compulsory process for witnesses, as he could have, if the facts were to be determined at the situs of the. alleged offense in a criminal prosecution. In fact, many more reasons might be suggested, but they suggest themselves, and we shall not further elaborate. Again had the Legislature intended that the court hearing the disbarment proceeding should hear, try and determine the facts, in a case where the charges amounted to indictable offenses, there never would have been the limitations found in section 960 supra. That section limits the court’s right to determine the facts to cases involv
III. Are these statutes a reasonable limitation upon the inherent power of the courts'? We think so. The disbarment of Selleck under the charges sustained against him brands him as -a felon, and this without
If these statutes mean what we have construed them to mean; and if they are a reasonable limitation upon the inherent powers of the court, then upon the
For obvious reasons we have declined an opinion as to the merits of Selleck’s case. Guilty or innocent he is entitled to a legal trial. This he has not had. I am constrained to hold that the record and judgment of the court of appeals should be quashed.
It is so ordered.
Concurrence Opinion
CONCURRING OPINION.
I concur in the result of the able opinion written by my brother Geaves, but I do not concur in the views of my brethren that the St. Louis Court of Appeals possesses inherent power to hear and determine proceedings to disbar attorneys.
The doctrine of the “inherent powers of courts” was vigorously asserted by some of my learned prede-
It is true, as asserted by a majority of my brethren, that inherent power did exist in the judicial, as well as in the executive system of the monarchy from which the great body of our laws are derived, but' it ■must not be forgotten that England is a country without a written constitution closely defining the powers of the different departments of its government.
- The inherent, arbitrary, and often tyrannical, power exercised by the Mother Country less than two centuries ago was one of the very reasons why this Republic and the sovereign States thereof were erected, and the several powers and duties of our officials expressly limited by constitutions and statutes.
If courts have inherent powers, then their jurisdiction has no definite bounds. It is only one short step from the assertion of inherent power to the assumption of absolute power.
If we possess inherent powers we must go back to the precedents and rulings of other courts to determine what our powers are — -how far may we go back? "When we transcend the limits fixed by our organic law, then we can go back to the days of mediaeval tyranny to find a precedent for upholding any act of official usurpation.
It was not the theory of those who framed our constitutions that whatever the courts had done in the past was right, and might, with propriety, be repeated. Those provisions of our organic law which ordain that “excessive bail shall not be required, nor cruel or unusual punishments inflicted;” that parties shall not be compelled to testify against themselves, and that the “accused shall have the right to meet the witnesses
All the splendid safeguards of citizens will be swept away if we may go back beyond the birth of the Constitution to find precedents for construing it away. This is what respondents (as I understand them) ask us to do in this case. In my humble judgment all excuse for the exercise of the so-called inherent powers became a thing of the past in this country when our written constitutions were adopted.
. In the creation of our judicial system it became necessary for the framers of our organic law to define the jurisdiction of our. several courts. At any event, whether necessary or not, their powers were thus defined, and that is as far as we need inquire.
It is needless to re-state or define here the constitutional powers of the St. Louis Court of Appeals, for the reason that it is not contended by my brothers on this bench, or by the attorneys for respondents, that one word can be found in our Constitution which would even by implication vest in the St. Louis Court of Appeals original jurisdiction of an action to disbar an attorney; and yet, the majority of my brethren seem to concede that power to be vested in that tribunal.
It is urged by learned counsel for respondents that attorneys at law have such close relations with the courts that we must, ex necessitate, possess the right to regulate their conduct by disbarring them when they are guilty of crimes or professional misconduct. That doctrine sounds plausible, but it is, nevertheless, fallacious. It is analogous to the doctrine that “necessity knows no law,” and the additional rule that the Constitution is impotent in all dealings “between' friends.” The rule that “necessity knows no law”
It cannot be successfully denied that the clerks of our courts are as close to this court as the attorneys who practice before us. We usually receive the representations of attorneys cum grano salis; but transcripts filed with us bearing the official signatures and seals of the clerks of courts of record we treat as importing absolute verity. If the clerk of a court should falsify the record or transcript of the proceedings in a cause, it would certainly tend as strongly to pollute the fountains of justice as anything an attorney could do looking to that deplorable result. Yet in the casé of State ex rel. Attorney-General v. Flentge, 49 Mo. 488, we held that the Constitution did not confer jurisdiction upon us to try a clerk charged with misdemeanor in office. In that case the Attorney-General urged the same doctrine now urged by respondents, to-wit, that this court is vested with the inherent powers of the English courts through the adoption of the common law. In overruling that contention Bliss, J., said:
“This court has ‘appellate jurisdiction only,’ except that it may issue certain specified writs ‘and other original remedial writs.’ This statutory proceeding for trying a clerk for misdemeanor in office, can by no straining he brought within the exception. No writ whatever is issued, and it is a naked attempt to impose an original duty upon the court forbidden by the Constitution, and for the performance of which no adequate means are provided.”
In the case of Wait v. Railroad, 204 Mo. 1. c. 504, the present Chief Justice of this court said:
“The Supreme Court is a court of appellate jurisdiction confined by the Constitution to the exercise of such jurisdiction only, that is it sits as a court of er*390 rors, except in cases otherwise directed by the Constitution. [Art. 6, sec. 2, Constitution of Missouri.]”
So while there are some ill-considered precedents holding that this court and our courts of appeal may in extreme cases (like the one at bar) step outside the paths marked out for them by the Constitution, there is certainly equally respectable authority' for the views for which I am now contending.
I may be mistaken, but I fear that some of my learned associates are unduly impressed by the large, respectable and influential body of citizens who fathered the proceedings to disbar relator. I am sure no one has a greater regard than I for the prosecutors, nor a higher respect for the eminent jurists who rendered the judgment now sought to be quashed; and no one could possess a stronger feeling of contempt than I for an attorney who is guilty of professional miscondiict; but, notwithstanding these grave considerations, I solemnly admonish my associates not to make of the present extreme case an excuse for upholding a judgment which the Court of Appeals had no jurisdiction to render.
If we strain the Constitution in this case to accommodate a Bar Association, other influential bodies of men will, from time to time, demand that we assume additional “inherent” powers to work out justice in other extreme cases. By harkening to such pleas the Constitution of our State .will become so twisted, warped and punctured that it will lose its time-honored vitality and potency as the safeguard of the people against oppression.
Dissenting Opinion
DISSENTING OPINION.
This is an original proceeding, instituted in this court, by the relator against the judges of the St. Louis Court of Appeals, to review by certiorari the record of that court, in the disbarment
In obedience to a writ issued by this court, December 23, 1912, the judges of the St. Louis Court of Appeals duly certified to this court the full record of said proceedings had in that court against the relator, which is quite lengthy, but need not be here fully set forth.
On or about October 3, 1911, Eugene S. Wilson, and others, attorneys-at-law, and members of the St. Louis Bar Association, filed in said Court of Appeals a complaint against Selleck, the relator, a complaint .entitled, “Disbarment Proceedings,” consisting of five counts or charges. Since, however, relator was acquitted of the first, second and third charges, we will pass them without further comment, and devote our time and energies to the fourth and fifth charges.
The fourth count, at considerable length, charged relator with entering into a conspiracy with one ■Charles W. Kotzaurek, a merchant, and Bertha Hen-kel, one of his clerks, to defraud the creditors of Kot-zaurek, and in furtherance thereof relator committed and induced said Bertha Henkel to commit perjury, or briefly stated, it charged him with subornation of perjury and perjury.
The fifth count of the complaint, in brief, charged relator with embezzling some $8,000 worth of notes and property belonging to his client John Link, and his widow Minna Link, the executrix of his estate.
After filing said complaint, a summons was duly issued from said court to the respondent, commanding him to appear October 20, 1911, and show cause, if any he had, why he should not be disbarred from the practice of law as an attorney and counselor at law, before the courts of this State, upon charges stated in the petition filed by said Wilson et al.
Thereafter, and upon the same day, said court appointed the Honorables Charles W. Bates and George E. Smith, members of the St. Louis Bar; special commissioners, to take the testimony offered by the parties in the cause, with directions to report the testimony taken, with their findings of fact, as well as their conclusions of law upon the issues joined; and required, that the parties thereto, within ten days after filing the same, should, if they saw proper, file their exceptions thereto.
In pursuance to said order of the court, the commissioners heard the evidence introduced by the respective parties, and on July 17, 1912, reported the same to the court, together with their findings of facts and conclusions of law.
As previously stated, the findings on the first, second and third counts of the complaint were in favor of respondent, and those in the fourth and fifth were against him, and were as follows:.
“Chaege Fourth. Your commissioners find the issues against Ellroy Y. Selleck on this charge and find him guilty as charged.
“Further, upon this charge your commissioners find that Ellroy V. Selleck was in the year 1906 duly admitted to practice law and licensed to practice law in the courts of the State of Missouri, by the Supreme Court of Missouri, and from that time continuously up to the present time he has been engaged in the practice of law as an attorney and counselor.
“That in the months of November and December, 1908, one Charles Mathew Kotzaurek was conducting*393 two liat stores in the city of St. Louis, one at 603 Pine street and one at 907 Pine street, and that the said' Kotzaurek was indebted to various persons for rent of said stores and for hats purchased and contracted for; that in his employ at that time was one Bertha Henkel; that at that time and prior thereto the said Ellroy Y. Selleck was and had been the attorney and counsel for said Bertha Henkel; that some time in the month of November or December, 1908, said Bertha Henkel introduced the said Kotzaurek to her attorney, the said Ellroy Y. Selleck; that under the advice and direction of said Selleck, he conspiring with the said Kotzaurek and the said Henkel, a scheme was devised by said Selleck for this purpose, and said Kotzaurek and said Henkel directed by the said Selleck in his capacity as their counselor and attorney to execute falsely hills of sale and promissory notes and to authorize the said Selleck to execute certain checks to apparently consummate a sale of the stock of hats by said Kotzaurek to said Henkel; that said papers were executed and delivered, although in truth and in fact no such transaction took place as purported to be set forth by said papers; that litigation ensued involving those transactions, and as a part of the conspiracy and plan devised by said Selleck to carry out said fraudulent scheme, he, the said Selleck, directed and instructed the said Henkel to give false and perjured testimony, in pursuance of which plan and scheme said Henkel did knowingly, willfully and intentionally in the trial of said litigation, give false and perjured testimony under the direction and at the suggestion of said Selleck, and the said Selleck, in said litigation, did knowingly, willfully and intentionally give false and perjured testimony.
“Chaege Fieth. Your commissioners find against the respondent, Ellroy Y. Selleck, on this charge and find that the allegations in said charge are true, ■
*394 “Further, your commissioners find that said Sel-leck, being a licensed attorney as heretofore stated and practicing his profession in the city of St. Louis, was for some months prior to July 20, 1910, employed by one John Link as attorney and legal adviser; that said John Link died on the 20th day of July, 1910, and that letters testamentary were issued by the probate court of the city of St. Louis to his widow, Minna Link, on July 23, 1910.
“That during his lifetime the said John Link was the owner, among other things, of the following notes, secured by deed of trust, to-wit:
“One principal promissory note, dated April 1, 1906, executed by one John Schmittel, for the sum of $3500, which note, prior to the times hereinafter referred to, had been reduced by payments to $2750; said note was payable to B. O. Stevens of Clayton, Missouri, three years after its date, and by him indorsed without recourse. Said note had been purchased by said John Link and time had been extended on said note and new interest notes for $150 each given therefor. Said notes were secured by deed of trust on lot No. 2 of Human Place, being a subdivision of the west half of the west half of the northwest quarter of section'eight, township forty-five north, range six east, in St. Louis county, Missouri.
“Also a principal promissory note for $4500, executed by one Ellen A. Manion, dated April 1, 1910, payable three years after date, to August J. Kuhs, Jr., and by him indorsed; also six interest notes accompanying the same, each for the sum of $123.75, all secured by deed of trust on lot eighty-two of Tower G-rove Heights amended subdivision in block 4114 of the city of St. Louis, Missouri; that after the death of John Link said Ellroy "V. Selleck was employed by Mrs. Minna Link as her attorney to represent her and the estate of John Link, upon which she was administering; that shortly after the death of John Link and*395 before letters testamentary were issued on John Link’s estate, the said Ellroy Y. Selleck, either by impersonating John Link or otherwise, unlawfully obtained access to the safety deposit box of the said John Link in the Mercantile Trust Company, where the said Link kept his papers, among others the said notes and deeds of trust; that the said Ellroy Y. Selleck obtained possession of said notes and deeds of trust and unlawfully, willfully and knowingly with the intention of depriving the true owners thereof of their property, converted the same to his own use; that he had refused to account for same or their value to the said estate of John Link, deceased, or to the executrix of said estate or to the attorneys employed by the executrix after . she discharged from employment the said Selleck; that the said Selleck falsely pretended that John Link in his lifetime had entered into a written contract with him as attorney for said John Link and one McGregor, whereby the said Schmittel notes and deed of trust were transferred to the said Selleck, and falsely pretended that said contract was stolen from his (the said Selleck’s) desk, whereas your commissioners find the fact to be that no such contract was ever executed, nor was any such contract ever stolen from said Selleck’s desk or otherwise.
“Your commissioners find as a matter of law, upon the facts so found as above, that the said Ell-roy V. Selleck is not a fit or proper person to practice law in the State of Missouri, and that his license so to practice should be revoked.”
On August 7, 1912, Selleck filed his exceptions to the report of said commissioners. The sixteenth and seventeenth, the only material ones, are as follows:
“(16). Under the pleadings, the information or charges, the court has not the authority or power to revoke respondent’s license to practice law in the State of Missouri,
*396 “ (17). This court has not jurisdiction in proceedings of this character. It has no jurisdiction, authority or power to revoke respondent’s license to practice law in the State of Missouri. Respondent was duly admitted to practice law' and licensed to practice law in the courts of the State of Missouri by the Supreme Court of Missouri, the sole court with power to issue license to attorneys to practice law in this State. ’ ’
In passing, we may state that there is no pretense that the matters and things complained of were committed by respondent, in reference to or in connection with any matter pending in said Court of Appeals.
Respondent filed exceptions to the report of the commissioners; and on December 3, 1912, the court overruled said exceptions and adopted or confirmed the report in toto, and thereupon rendered the following judgment:
“It is therefore the judgment of the court that the respondent, Ellroy V. Selleck, Esq., who as appears from the records of this court is an enrolled member of its bar, be and he is hereby debarred from the further practice of the profession of an attorney and counselor at law under the laws of this State in any of the courts thereof, and especially from the bar of this court; that his license to practice law and as a member of the bar of this State be and the same is hereby canceled and annulled and to be henceforth held as naught. Furthermore, that the relators have and recover the cost of this proceeding, to be taxed by the clerk according to law, of and from the respondent, Ellroy V. Selleck, and that execution issue. It is so ordered and adjudged. Caulfield, J., concurs. Reynolds, P. J., not sitting.” [In re Selleck, 168 Mo: App. 391.]
On December 12, 1912, the respondent filed his motion for a rehearing, assigning numerous reasons therefor, which are not necessary to be here stated. And on the same day respondent filed in said court a
“Now at this day comes Eugene S. Wilson, Luther Ely Smith, Gfuy A. Thompson, William F. Woerner and Harry E. Sprague, attorneys at law, who composed the Committee on Grievances of the Bar Association of St. Louis, a corporation duly incorporated under thé laws of this State, by McDonald & Taylor, Thomas B.. Harvey and Walter N. Saunders, attorneys for said informants, and Ellroy Y. Selleek, respondent, in person, in the above-entitled cause, and by his attorney, John A. Talty, and the matter of the exceptions of the said respondent to the special commissioners’ report filed herein having been taken up and argued, and the court having fully 'considered the evidence and exhibits and findings of fact as set forth in said report of special commissioners heretofore appointed by the court to sit together, hear the testimony and make report of their findings of fact and conclusions of law therein to this court with respect to the several charges preferred by said above informants against said respondent, the court doth order and adjudge that the said exceptions to said report be and the same are hereby overruled; the court doth find that the said findings of fact and conclusions of law in said report are true and correct, and doth confirm and approve the same; and it appearing'from the record that the said Ellroy Y. Selleek, respondent, is an enrolled member of its bar, and the court having approved and con*398 firmed said report as hereinabove set out, the court doth order and adjudge that the said Ellroy V. Sel-leck he and he is hereby disbarred from the further practice of the profession of an attorney and counsel-lor at law in all courts of record in the State of Missouri under the laws of this State; that his license to practice law as a member of the bar of this State be' and the same is hereby canceled and annulled and to be henceforth held as naught, and it is further ordered and adjudged that the said informants have and recover from respondent the costs of this proceeding and that they be taxed by the clerk according to law against said respondent, Ellroy Y. Selleck, and that execution issue therefor. Opinion filed.”
Upon this record, respondent filed in this court a motion to quash the proceedings and judgment of the Court of Appeals in said disbarment case.
■This motion, which is substantially the same as were the motions filed by respondent in the Court of Appeals for a rehearing and to transfer the cause to this court, is as follows (formal parts omitted):
“Now at this day comes the relator, Ellroy V. Selleck, and moves this honorable court to vacate, set aside and annul the judgment rendered by the St. Louis Court of Appeals on the 3rd of December, 1912 [should read, on the 14th day of December, 1912, instead of “on 3rd December”], in the case entitled in said court ‘In the Matter of Ellroy V. Selleck, No. 13,209,’ and to quash the summons and all the other proceedings therein and to adjudge the costs that have already accrued in said case in said Court of Appeals and the costs that may accrue herein against Eugene S. Wilson, Luther Ely Smith, Guy A. Thompson, William F. Woerner and Harry E. Sprague, complainants in said case, because it appears from the certified copy of the record in said case filed herein by the judges of the St. Louis Court of Appeals, in obedience to the writ of certiorari issued herein against said*399 judges, that said Court of Appeals of the city of St. Louis had uo jurisdiction to render judgment against Ellroy V. Sellech in said case and that, the judgment rendered by them in said case on the said 3rd day of December, 1912 [14th day], was and is in excess of the jurisdiction of said St. Louis Court of Appeals, for reasons following:
“First. Said St. Louis Court of Appeals had no jurisdiction to try, hear and determine said cause entitled £In the Matter of Ellroy V. Sellech,’ because the validity of section 952 of the Revised Statutes of Missouri of 1909 is drawn in question by reason of the contention of respondent that said section is in violation of section 12, article 6, of the Constitution of Missouri and sections 1, 3 and 5 of the Amendment to the Constitution of Missouri of 1884.
‘‘Second. Said St. Louis Court of Appeals had no jurisdiction to try, hear and determine said case against Ellroy V. Sellech because the construction of section 12, article 6, of the Constitution of Missouri and sections 1, 3 and 5 of the Amendment to said Constitution of 1884 is involved.
“Third. Said court had no jurisdiction to try, hear and determine said cause, because the construction of sections 12, 22 and 30 of article 2 of the Constitution of Missouri is involved.
“Fourth. Said court had no jurisdiction to try, hear, and determine said cause, because the construction of the Fourteenth Amendment to the Constitution of the United States is involved and the proceedings in said case in said St. Louis Court of Appeals are in violation of said constitutional amendment in this, that said proceedings deny to Ellroy V. Sellech the equal protection of the law and deny to Ellroy V. Sel-lech due process of law.
“Fifth. Because the judgment rendered herein by said St. Louis Court of Appeals is in excess of its jurisdiction, being in violation of the provisions of*400 section 958 of the Revised Statutes of Missouri of 1909.”
I. Counsel for respondent contend that the St. Louis Court of Appeals is a court of limited and spe-
For convenience, we will consider these propositions in the inverse order as stated.
Counsel for respondent have not pointed out in what manner the trial of respondent in the Court of Appeals has violated the Constitution of the United States; and we take it for granted that if the Court of Appeals has the jurisdiction to hear and determine cases of this character, then the question of due process of law as guaranteed by section 1 of the Fourteenth Amendment of the Constitution of the United States, is eliminated from this case. If, upon the
We, therefore, put aside the fourth insistence of counsel for respondent.
II. This brings us to the consideration of the third contention of counsel for respondent, namely: that no person shall he prosecuted criminally for felony or misdemeanor otherwise than by indictment or information, etc. (section 12); in criminal prosecutions, the. accused shall have the right to appear and defend, etc. (section 22); and that no person shall be deprived of life, liberty or property, without due process of law (section 30) — all of article 2 of the Constitution of Missouri.
It may be conceded that if the proceedings had and maintained in the Court , of Appeals against the respondent were criminal in character within the meaning of the Constitution, then clearly they would be absolutely null and void, because not instituted under indictment nor by information, as provided for by said constitutional provisions.
This concession, for the present, disposes of this contention of respondent, which, however, will receive further consideration in connection with thp contention that the proceedings had in the Court of Appeals were criminal in character.
III. The third contention of counsel for respondent is, that the proceedings had against him in the Court of Appeals involve the construction of section 12 of article 6 of the Constitution, ■ and sections 1, 3 and 5 of the Amendments thereof fo.r the year 1884, which provide for the creation of the various courts of appeals of the State, and in a general.way, prescribe the jurisdiction thereof.
In fact, all four of the contentions of counsel for respondent, in effect, are that the Court of Appeals has no jurisdiction to hear and determine the case pending therein against him, for the, reason that section 952, Revised Statutes 19Q9, the statute authorizing that court to try the cause, is unconstitutional, null and void; and thus presenting a constitutional question, that court has no jurisdiction or authority to try the case.
If we correctly understand the position of counsel for respondent, it is this: That the complaint filed in the Court of Appeals, against the respondent, is predicated upon section 951, Revised Statutes 1909, and each count thereof charges him with the commission of a felony; and that section 952, Revised Statutes 1909, authorizing such causes as this to he brought and tried in the Court of Appeals, as previously stated, is unconstitutional, null and void; and being a constitutional question, that court has no authority or jurisdiction to hear and determine the same.
It seems to me that counsel for respondent start out with a false premise, namely, that respondent was, within the language of section 12 of article 2 of the Constitution, prosecuted criminally in the Court of Appeals.
While it is true, the complaint filed therein against him states facts which constitute the grounds of his disbarment, which if true, constitute felonies, and for which he might be prosecuted criminally, yet a casual inspection of the record will show that he was not prosecuted criminally, but it was a proceeding instituted against him for-the reasons stated, .to revoke his license to practice law in the courts of this State.
The same is true of the case at bar: the perjury, subornation of perjury and embezzlement proven against the respondent, constituted not only a criminal offense against the State, for which be might be criminally prosecuted and punished, but those acts of bis also constituted, as provided by said section 951, Revised Statutes 1909, sufficient .grounds for the revocation of bis license to practice law in the courts of this State.
It should be borne in mind that section 951 does not declare the acts of respondent criminal, that is done by other sections of the statute, but simply provides that' certain crimes therein mentioned, if committed by an attorney at law, afford sufficient grounds for bis disbarment; and section 952 provides in what courts proceedings for disbarment may be instituted.
If we bear in mind the distinction between a criminal prosecution, and a civil action instituted to recover damages resulting from the commission of crime, or a civil procedure to disbar an attorney for any of the matters stated in section 951, the confusion that lies at the base of this case wholly disappears, and with it, the contention that said section 952 is unconstitutional. This is apparent for the reason, that respondent was not prosecuted criminally in the Court of Appeals but was proceeded against civilly, to revoke bis license to practice law.
That being so, there is no substantial ground upon which to base the contention that said section 952
We, therefore, hold that the constitutionality of said section 952 was not involved in the “Disbarment Proceedings” had in the Court of Appeals;
IY. The foregoing observations practically dispose of this case, hut there is another incidental mat-
If it should he conceded that the Court of Appeals has no' expressed constitutional authority to hear and determine disbarment proceedings, it would not neces- / sarily follow therefrom that said court was without authority to try said cause, for the reason that all courts in the .very nature of things must have certain inherent powers which are absolutely necessary for their preservation, protection and efficiency.
Learned counsel for respondent deny that proposition and Insist that there is no such thing as an inherent power in a court; and that when it exercises an authority not expressly granted to it by law, such exer-sise is simply-usurpation and tyranny.
In a remote sense there is some truth in that in
In the early stages of governments, and especially was it true of England, the courts thereof, like their laws, were matters of growth and development, founded upon usage and custom.
As civilization advanced, new rights and duties correspondingly arose, and those rights and duties were largely protected and' enforced according to the usages and customs which previously existed, as well as by those which had subsequently grown up.
That process of development has been going on from the beginning of the common law, and it is a continuous growth, where not controlled by legislative enactments, and I presume it will go on to the end of man. -
In order to meet those changed and new conditions, the jurisdiction of the courts grew correspondingly, and were and are ever equal to the emergency; and out of this grew the old axiom, Ubi jus, ibi reme-dium.
In this manner those common law courts grew into and became known as courts of general jurisdiction, that is, courts having jurisdiction over all subject-matters not specially withheld from them by custom or usage, or by Parliamentary enactments, among which were the various courts of appeals and of errors.
The States of this country, which adopted the common law, this being one of them, organized the courts thereof, much after the fashion of those in England, and in conferring jurisdiction upon them, in language more or less general, conferred practically the same jurisdiction upon them respectively, as was possessed by the corresponding courts of England; and in determining the jurisdiction of our courts resort must be had to the jurisdiction of the respective courts of England corresponding to those of this State; and
So in this country from the foundation of the various States of the Union, the appellate courts thereof have had, and are now exercising, original jurisdiction to disbar attorneys, as part of their inherent power, so essential to the administration of justice. And the statutes of the various States are merely regulative of that power, and are not the creation of it. This is also true of this State. [Strother v. State, 1 Mo., side page 605; State v. Watkins, 3 Mo., side page 480; State v. Garesche, 36 Mo. 256; State ex rel. v. Laughlin, 73 Mo. 443; State ex rel. v. Mullins, 129 Mo. 231, 1. c. 236-7; State ex rel. v. Smith, 176 Mo. 90, 1. c. 101, 103, 105, 106; State ex rel. v. Sale, Judge, 188 Mo. 493, 1. c. 497-498.]
The same ruling prevails in other States, as will be seen by consulting the following cases: In re Egan, 22 S. D. 355; In re Breen, 30 Nev. 164; In re Jones, 70 Vt. 71; People v. Bamborough & Brown, 255 Ill. 92; In re Henderson, 88 Tenn. 531; Penobscot Bar v. Kimball, 64 Me. 140; Strout, Petitioner, v. Proctor, 71 Me. 288; Delano’s Case, 58 N. H. 5; People ex rel. v. Green & Johnson, 9 Colo. 506; State v. Holding, 1 McCord (S. C.), 379; In re Robinson, 136 N. Y. Supp. 548 (1912); In re Mendelsohn, 135 N. Y. Supp. 438 (1912); In re Flannery, 135 N. Y. Supp. 612 (1912); In re Thatcher, 80 Ohio St. 492, 1. c. 652-5.
This rule seems to be conceded -by counsel for relator, for on page 14 of their brief it is stated: ‘ ‘ The accepted doctrine is that statutes and rules merely
This same contention would apply equally well to this court, for there is no constitutional provision authorizing it to entertain disbarment proceedings, yet it has exercised that power from the creation of the court.
This insistence is not well founded, as will clearly appear from a consultation of the authorities previously cited.
I am, therefore, of the opinion that the writ of certiorari heretofore issued should be quashed.
Dissenting Opinion
DISSENTING OPINION.
I am committed to the doctrine of inherent power in courts. To that extent I concur
One observation more: Is it thinkable that the Legislature in dealing with the subject of disbarments intended to put it out of the power of a court of justice to disbar an attorney who was too shrewd and cunning to be technically convicted of an offense if so be that he managed to range high in offenses against the law and ethics of his profession? Is the law of disbarment a web through which big flies break and little ones are caught? Was that legislation in the interest of disreputable attorneys or was it in the interest of the general public and the dignity and righteousness of courts? Nay, more, may an attorney become so picturesque in his monumental and blazing indiscretions that the lawmaker shall be held to evince solicitude and care to keep him in office, as a dead fly in the ointment of jurisprudence? The idea, amuses me as curious, but does not convince.
The judgment should' be affirmed. Hence I concur in the views of my Brother WoodsoN and dissent from the conclusion of my Brother Graves.