State v. Kirby

154 N.W. 284 | S.D. | 1915

WHITING, J.

Based upon one alleged wrongful act, the two above-entitled matters were brought before this court; the one charging the defendant with being guilty of contempt of this court, the other charging him with dishonorable and unprofessional conduct as an attorney and counselor at law. Both proceedings were, by mutual consent, heard at one and the same time: The charges against the defendant and respondent (hereinafter known as defendant) were, in substance, that: He had, during all the times mentioned, been and now was a regularly licensed and practicing attorney of this state. The Daily Capital Journal was a newspaper published -in Fierre, S. D., having a general circulation in the vicinity of Pierre and throughout the state, and, at the times mentioned, one Kingsbury was the duly authorized and empowered reporter for said newspaper, authorized as such to collect and publish news. In the issue of said paper published on July 9, 1915, the said Kingsbury (being authorized so to do by defendant) caused to be printed, published, and circulated the following article:

“Joe Kirby Says Egan Will Stay.

“Joe Kirby, the Sioux Falls attorney, who recently presented to the Supreme Court of the state of South Dakota, the argument for State Auditor Handlin, in the case of Judge McCoy against the auditor in the matter of the payment of expense vouchers, was in Pierre for a few moments yesterday and in conversation with a reporter for the Capital Journal, Mr. Kirby became prophetic.

“ ‘The Supreme Court of South Dakota will not disbar G. W. Egan of Sioux Falls, from the legal bar of the state of South Dakota, upon the complaints used by the Attorney General of the state in his recent charges against Egan/ said Kirby. Just paste this prediction in your hat and see whether or not it is correct.’

“Pressed for reasons for this positive statement Mr. Kirby said Egan proposes to use every argument within his command, in the coming campaign for the governship, and that if pressed to it, he will bear down upon the fact that the Supreme Court of the state saw fit to decide against Mr. Handlin in that perquisites case and that the Supreme Court and the Governor of the stale, consider the matter a closed incident, unless some candidate discusses it before the people.

“ 'Therefore, in order that Egan may not be impelled to say anything about it, the 'Supreme Court will not give serious consideration to the Attorney General's proposition 'to disbar Egan/ says Mr. Kirby."

On May 14, 1915, disbarment proceeding's were commenced ■in this court against one George W. Egan. Said disbarment proceedings have at all times theerafter been pending' before this' court, as was, on July 8, 1915, well known to defendant. On July 8, 1915, at the said city of Pierre, defendant, well knowing that said Kingsbury was a reporter for said Daily Capital Journal, then and there gave ancl stated to said reporter the matters and thing's stated in the aforesaid published article, and authorized the said reporter to print and publish the same. Defendant, at the same time and place, made substantially the same statements to one Travis, another newspaper reporter, well knowing that said Travis was then and there a newspaper reporter. In the contempt proceedings it was also alleged that: Such article, so published as aforesaid, charges that .this court will be influenced and governed by selfish and corrupt motives in the consideration of said disbarment proceedings against said Egan. The publication and circulation of such article, during the pendency of said proceedings against the said Egan and -prior to the trial and decision thereof, have, from the nature thereof, a tendency to -embarrass, impede, and interrupt the due administration of justice and the proceedings of the court in fairly and impartially trying the issues between the said Egan and his accusers.

Kingsbury testified in detail as to the conversation- with defendant and to his taking notes of the same as the conversation progressed, and also swore that defendant authorized the publication of the interview. His testimony, in all respects, sustained the charges against defendant. His notes were received in evidence and were as follows:

“Joe, Kirby home from visit to Black Hills. Supreme Court will not disbar Egan upon complaint based upon charges filed by Attorney General. Paste this in your hat. Because Egan in his campaign will use every argument to- secure election and if driven to it will bear down on results in Handlin case. Therefore keep Egan from alluding to it court will not consider Atty. Gen’ls proposition. ”

The witness Travis testified that defendant stated to him in effect as follows:

“They certainly will go ahead and investigate, but it will be a whitewash; the court don’t dare disbar Egan for if they do, he will take the stump in the next campaign on .the $50. deal against the judges.”

And he further testified that he did not recall anything further said in regard to that matter. He further testified, upon' cross-examination, that, if defendant used the pronoun “they” in place of the words “the court,” it was after the question, “What had the court done in the Egan matter?” The interviews with the two reporters were at the same place and one immediately following the other. There was 'absolutely nothing elicited, either upon the direct or cross examination of these two witnesses, from which it would appear that defendant had in mind any person, other than the members of this court, in speaking of' what would happen in the Egan disbarment proceeding and of the reason for such happening.

Defendant, while admitting that he had conversations with said reporters at the time and place mentioned, swore that the conversations were not as alleged and as testified to by- said reporters, and swore that when Kingsbury produced his notebook he specifically instructed him not to report such conversation, and that he made no notes. Defendant testified that he told Kings-bury :

“If George W. Egan was disbarred, then he would be absolutely foot-loose and he would use the decision in this salary deal, the Handlin case, and would use' other matters in his possession that I believe 'he possesses, so that he could defeat any man affiliated with the party in power in the state of South Dakota, in his own district.”

He -then testified to statements he made to Kingsbury in regard to his views as to Egan’s political aspirations; to how a certain reputed candidate for the office of Governor, aided by other members of a 'certain political party or organization, would, in order to further the political ambitions of such gubernatorial can-■dictate and also- placate Mr. Bgan, assist Mr. Egan to gain the nomination for a certain office other than that of Governor, which other office defendant believed Mr. Egan desired to obtain; and as to how, in order that Mr. Egan’s candidacy might not be injured by a judgment of disbarment against him, such gubernatorial candidate, aided by his coworkers, would see to it that, “when the Attorney General and prosecution want evidence, they would find that the evidence had evaporated, in other words, had disappeared,” and that Mr. Egan would have “a clean bill of health or whitewash when they got through with it.” Defendant testified that he did not consider this court “a part of that political party or organization that would do- this whitewashing.” He testified that, in the conversation with the reporters, he said nothing “at any time that reflected on the court”; that what he stated was “that the court wouldn’t disbar him- * * * for tack of evidence.” Defendant, summarizing what he claimed to have told the reporters to be reasons why Egan would not be disbarred, stated that it was :

“That Egan could duck that (the McCoy v. Handlin Case, 35 S. D. 487, 153 N. W. 361) and other things and -he would be let, would have to be let, in out of the cold; * * * that they (the political organization) wouldn’t dare have a disbarred man on the ticket or the * * * would elect a man against him, * * * and when * * * spoke, the fellows down the line would have to fall in line, * * * and where is your court, without evidence.”

Defendant testified that he thought then and now that the court would decide the Egan case according to- the law and the evidence; that he said nothing to Kingsbury that could be construed as stating 'that this court would not dare disbar Egan. But defendant admitted,' upon cross-examination, that, before he had seen a copy of the publication complained of, he asked the Attorney General what the article was, and the Attorney General stated to him the substance thereof, except that, instead of stating that the article 'said, “The court wouldn’t disbar Egan,” he said it stated, “Egan wouldn’t be disbarred”; and he further admits ■that he told the Attorney General that, “Yes, I guess that’s about right, except I told him not -to publish it.” Defendant testified that he thought the Attorney General said that the article stated, “Mr. Egan wouldn’t be disbarred because he would use the Hand-lin case in his campaign for Governor.” The Attorney General testified that he advised defendant that, “In that article, you are quoted as saying that the court wouldn’t dare to disbar Egan because of the decision of the court in the so-called perquisites case,” -and further advised him that Kingsbury had stated in an affidavit that he (defendant) stated, “You can print that too;” and that then defendant said, “I guess that’s about right, except that I told Kingsbury not to> publish it.” The Attorney General also testified that he then told defendant, “You are invited to come up before the court;” to which defendant answered: “I’m not surprised at that; if Kingsbury said what you say he did, I don’t see how the court could do anything else than invite me to come up.”

A careful review of such evidence, as well as a consideration of' the appearance of the witnesses upon the stand and their manner of testifying, fully satisfied every member of this court of the correctness of Kingsbury’s version of the conversation, and that no mention was made therein as to any other reason why Mr. Egan would not be disbarred than the desire of this court that Egan should not use the decision of this court in the Handlin case in -the coming- campaign. The court has entered its findings in the contempt case, finding the facts as charged in the two proceedings, as hereinbefore set out. Upon such findings, we found the defendant guilty of contempt and rendered judgment that he pa]^ a fine of $500. It is our purpose at this time -to discuss the legal grounds for such judgment, and to determine what judgment should be entered in the disbarment proceeding.

[1] Wias defendant guilty of contempt, and, if so, was the fine imposed warranted by the facts? A full understanding- of the facts involved in, as well as of the decision of this court rendered in, the case of “Judge McCoy against the auditor,” may be gained by a reference to the opinion of this- court in McCoy v. Handlin, 35 S. D. 487, 153 N. W. 361. Courts should' at all times exercise the greatest care not to infringe upon the constitutional right of free speech. But what is this constitutional right? It is that:

Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right.” Section 5, Art. 6, Const.

The Supreme Court of Arkansas, in State v. Morrill, 16 Ark. 384, says of this constitutional provision, which, in similar wording, has been inserted in all the American Constitutions:

“Any citizen has the right to publish the proceedings and decisions of this court, and, if he deem it necessary for the public good, to comment upon them freely, discuss their correctness, the fitness- or unfitness of the judges for their stations, and the fidelity with which they perform the important • public trusts reposed in them; but he has no right to attempt by defamatory publications, to degrade the tribunal, destroy public confidence in it, and dispose the community to disregard and set at naught its orders, judgments, and decrees. Such publications are an abuse of the liberty of the press, and tend to sap the very foundation of good order and well-being in society, by obstructing the course of justice. If a judge is really corrupt, and unworthy of the station which he holds, the Constitution has provided an ample remedy by impeachment or address, where he can meet his accuser face to face, and his conduct may undergo a full investigation. The liberty of the press is one thing, and licentious scandal is another.”

The Supreme 'Court of our sister state has well said:

“Much has been said of the sacred rights of free speech. It is always conceded that the right is sacred, but at times such sacred right must give way to others, even more sacred. It has never been claimed that it will protect a man in invading a church and interrupting the sermon with his free speech. The free right of speech will not protect a man in obstructing the streets of a crowded city; the free right of speech may not be used to interrupt even social gatherings or political meetings. Should it, -then, be allowed to interrupt the courts of justice? Surely there must come a time when the rights of the free speaker are overshadowed by the rights of other men to unhampered justice.” State v. Nelson, 29 N. D. 155, 150 N. W. 267.

It is not, however, every abuse of the right of free speech, even when speech is directed toward the courts or their judges, that should be held to constitute a contempt of court. We agree fully with the following from the opinion in People v. Wilson, 64 Ill. 221 (16 Am. Rep. 528.)

“Let us say here, and so plainly that our position can be misrepresented only by malice or gross stupidity, that we do not deprecate, nor should we claim the right to punish, any criticism the press may choose to publish upon our decisions, opinions, or official conduct in regard to cases that have passed from our jurisdiction, so dong as our action is correctly stated, and our official integrity is not impeached. * * * Far be it from us to deny that right. Such freedom of the press is indispensable to the preservation of the freedom -of the people.”

Although the courts do not agree as to the limits beyond which they cannot properly go in punishing as a contempt the abuse of the power of free speech when such speech is addressed to such courts or the judges thereof, it is agreed by all courts and text-writers that whenever a publication directly tends to impede, embarrass, or obstruct the courts in the administration of justice, it is a contempt of court and subjects the responsible party to punishment therefor. State v. Sweetland, 3 S. D. 503, 54 N. W. 415; State v. Edwards, 15 S. D. 383, 89 N. W. 1011; 6 R. C. L. 508, § 20; 9 Cyc, 20, 21, and cases cited in notes; Cooley on Torts (3d Ed.) 820; 2 Bishop’s Crim. Law, § 259. Whenever the abuse of the right of free speech does directly tend to impede, embarrass, or obstruct the courts in the administration of justice, such courts are ordinarily remiss in their duty to, and invite the just contempt and criticism of, the general public, whose servants and protectors they are supposed to be, if they overlook the same and allow it to go- unpunished. In the Matter of Sturoc, 48 N. H. 428, 97 Am. Dec. 626; People v. Wilson, supra; In re Philbrook, 105 Cal. 471, 38 Pac. 511, 884, 45 Am. St. Rep. 59; State v. Morrill, supra. In this last case it was said:

“It was well remarked * * * that no court could coerce public respect for its decisions, and we may add that no sane-judge would attempt it. If it were the general habit of the community to denounce, degrade, and disregard the decisions and judgments of the courts, no man of self-respect and just pride of reputation would remain upon the bench, and such only would become the ministers of the law as were insensible to defamation and contempt. But, happily for the good. order of society, man, and especially the people of this country, are generally disposed to respect and abide the decisions of the tribunals ordained by government as the common arbiters of their rights. But where isolated individuals, in violation of the better instincts of human nature, and 'disregardful of law and order, wantonly attempt to obstruct the. course of public justice, by degrading and exciting disrespect for the decisions of its tribunals, every good citizen, will point them out as' proper subjects of legal animadversion.”

We would refer any one seeking a comprehensive discussion of the -question of constructive contempts to the most exhaustive discussions thereof hi be found in the opinions in People v. Wilson, supra, State v. Morrill, supra, and in the case of State v. Frew, 24 W. Va. 416, 49 Am. Rep. 257. We quote the following from the words of Justice Snyder, in the Frew Case, when speaking of the court’s power to punish for contempt:.

“It is not given for the private advantage of the judges who sit in the court, but to- preserve to them that respect and regard, of which courts cannot be deprived" and maintain, their usefulness. It is given that the law may be administered fairly and impartially, uninterrupted by any influence which might affect the rights of the parties or bias the minds of the judges; that the court may command that respect and sanctity so essential to make the law itself respected; and that the streams of justice may be kept pure and uncorrupted. If the court is scandalized and its motives or integrity impeached, in regard to official acts or conduct, the consequences cannot be otherwise than baneful. The administration of the law is embarrassed and impeded, the passions often unconsciously roused, the rights of the parties endangered, and a calm and dispassionate discussion and investigation of causes prevented.

“The public have a profound interest in the good name and fame of their courts of justice, and especially of the courts of last resort. Everything that affects the well-being of organized society, the rights of' property, .and the life and liberty of the citizen, is submitted to> their final decision. The confidence of the public in the judiciary should not be wantonly impaired. It is all-important to the, due and efficient administration of justice that the courts of last resort should possess in a full measure the entire confidence of the people whose laws they administer. All good citizens will admit that he who willfully and wantonly assails the courts by groundless accusations, and thereby weakens the public confidence in them, commits a great wrong not alone against the courts, but against the people of the state.”

The article, for the publication of which defendant is responsible, not only suggested something that might otherwise never have occurred to any member of this court — that Mr. Egan might be disposed to make political- capital -out of the decision in the Handlin case and a method by which he might be influenced to refrain from so doing — but it charges that this court, prompted by timidity and self-interest, will attempt to so- influence Mr. Elgan by failing to disbar him, and this regardless of the proof submitted to us. If such charge were true, those members of this ■court to whose shoulders the coat of infamy fitted would not only be unfit to occupy the position of high trust to which the people of this state have chosen them, but would be fit subjects for the righteous scorn of all men. Can it be possible that such a grave charge, made by one who has been an officer of this court for 24 years and entitled, under the license of other courts, to practice in this court-since its'■ organization, and who must be presumed to, as he does, know personally every member of this bench, will not reach some receptive ears? To conclude otherwise would certainly be to find that defendant’s attack was harmless because of the very fact that he had long been a resident of this state and well known to -her people, or else to find that the ■ members of this bench were each and all so enshrined in the confidence and esteem- of such people that no shaft of calumny, howsoever sharp or by whom cast, could reach them. The first we cannot believe to be true; the second, though much to be. desired, we cannot hope to be true. Can it be possible that such a vile charge, even though disbelieved by every one to whose notice it was brought, would not tend to embarrass this court in the discharge of its duty in the Egan, case? Certainly not. Its tendency being to embarrass the court, can either this court or the people of this state — no matter how great may be their confidence in this court — know that it will not be so embarrassed and, as a result thereof, its deliberation affected and- the even course of justice, disturbed ? As is well said in People v. Wilson, supra:

“A court will, of course, endeavor to remain wholly uninfluenced by publications like ‘that under consideration; but will the community believe that it is able to do so? Can it even be certain in regard to itself? Can men always be sure of their mental poise? A timid man might be influenced to yield, while a combative man would be driven in the opposite direction. Whether the actual influence is on one side or the other, so far as it is felt at all, it becomes dangerous to the administration o'f justice. Even if a court is happily composed of judges of such firm and equal temper that they remain wholly uninfluenced in either direction, nevertheless a disturbing element has been thrown into- the council -chamber which it is the wise policy of th-e- law to exclude.

“Regard it in whatever light we may, we cannot but consider the article in question as calculated to embarrass the administration of justice, whether it has in fact done so or not, and therefore as falling directly within the definition of punishable contempts.”

Is it not a matter of common knowledge -that a prophet takes peculiar glory in the truthfulness of his -predicitons? -Defendant said, “Just paste this prediction in yo-ur hat and see whether or not it is -correct.” If this court should, no- matter how rightfully, render judgment in favor of Mr. Egan, can any one doubt that defendant, but for this proceeding and perhaps in spite thereof, would say, “I told you so.” If, upon the other hand, this court renders judgment against Mr. Egan, will there be lacking those to say that such judgment was rendered that the court might es-cape the cry of, “I told you so”? In State v. Nelson, supra, a case very analogous in its facts to the case at bar, that court said:

“Such a charge certainly tends to embarrass the court in its decision. If the decision -finally be in favor of the board of -equalization, it'will allow the same editor to point to the fact as corroboration of his claim that such conspiracy had existed; while, if -the decision be in favor of the State University, well might the charge be made that the court had been intimidated by the charge made against it. The wr-on-g done by the publication of the article is not so much against the court, or the members thereof, as against the litigants, against -th-e taxpayers, an-d against the sacred foundations- of justice upon -which the liberties and lives of all citizens rest.”

Anal-ogus in their facts, and -similar in the controlling principles involved, were tire cases of In re Robinson, 48 Wash. 153 92 Pac. 929, 15 L. R. A. (N. S.) 525, 15 Ann. Cas. 415; Respublica v. Oswald, 1 Dall. 319, 1 L. Ed. 155, 1 Am. Dec. 246; In the Matter of Sturoc, supra; Ex parte Cole, 6 Fed. 35 [Fed. Cas. No. 2,973]; In re Collins, 147 Cal. 8, 81 Pac. 220; In re Philbrook, supra; State v. Bee Publishing Co., 60 Neb. 282, 83 N. W. 204, 50 L. R. A. 195, 83 Am. St. Rep. 531; People v. Stapleton, 18 Colo. 568, 33 Pac. 167, 23 L. R. A. 787. See, also, In re Egan, 24 S. D. 301, 123 N. W. 478. We would be powerless to frame a statement more pertinent to the facts of the present case, than the following from the Philbrook case, quoted by this court in Re Egan, supra:

“This is a palpable attempt to influence a decision- of this court 'by base appeals to the supposed timidity of its justices, and made, too, by an officer of the court. It is intolerable. It cannot be suffered by any occupant of the bench, who has a just sense of his duty to -the people, to preserve the d-ue dignity of their courts and the free -course of justice.”

Even if it be true as now argued by defendant and as we trust and believe, that, owing to the integrity of the members of this court, the administration of justice cannot and will not be impeded or disturbed, can it be claimed that defendant has done no harm and' therefore should not be punished? Can the degree of a defendant’s guilt in any manner depend, not upon what he has ■done, but upon the integrity or lack of 'integrity in the breasts of tho-se who chance to constitute the court? The answer is too obvious for doubt. 2 Bishop’s Crim. Law, § 260; In the Matter of Sturoc, supra; People v. Wilson, supra; 6 R. C. L. 514, § 26.

[2] Defendant urges that he.did not intend, by anything he said, to reflect upon the integrity of this court, or to embarrass it in the discharge of its duties. There is a well-established rule of law tha-t one is presumed to intend the natural results of his acts — ■ one cannot willfully deal a blow to another and be heard to say that he intended no harm. Denying a wrong intent is only an excuse, but no justification, where the words are in fact contemptuous. People v. Freer, 1 Caines (N. Y.) 484. It is not enough that defendant disclaim any intentional disrespect to the court, or any design to embarrass the administration of justice. His meaning and intent must be determined bv a fair interpretation of the language used by him. People v. Wilson, supra. As was said in the Sturoc case:

“The character of the article and die time and circumstances of the publication oblige us to find that, as this was the natural, so it must have been the intended, effect of the publication. The natural consequences of his act being to corrupt the administration of' the law, the defendant cannot discharge himself by alleging that he meant no harm, and did not suppose that he was doing anything illegal.” People ex rel. Elliott v. Green, 7 Colo. 237, 3 Pac. 65, 49 Am. Rep. 351; 9 Cyc. 25, and numerouse cases cited.

[3] It might be asked: Wily did the court fine this defendant $500, when, for publishing this article, the corporation publishing the same was, in State v. Hipple Printing Company, 154 N. W. 292, fined but $100? The answer is obvious. The publishing company, through its reporter, received the statements from one of the most widely known attorneys' of the state — one whom it had a right to presume knew what could be lawfully published. This attorney authorized the publication thereof, thus, by implication at least, assuring such publishing company that it could lawfully publish the same. Defendant is not a layman, one to whom a mere presumption of the knowledge of the law regarding this matter attaches; lie has for years 'been an attorney of this court and surely is familiar with section 697, Pol. Code, which provides:

“It is the duty of an attorney and counselor: (1) To maintain the respect due to' the court of justice and judicial officers.”

Moreover, in order to' receive, from this court, his license as an attorney thereof, defendant gave oath that he would “act in the office of attorney and counselor at law * * * with all good fidelity * * * to the court.” We have no doubt but that defendant is familiar with the Code of Professsional Ethics adopted by the American Bar Association and ratified by the State Bar Association of this state; being familia:' therewith, he must have known that his conduct conflicted with the provisions of sections 1 and 20 of such Code and was a breach of the “oath of admission” proposed in such code. In State v. McClaugherty, 33 W. Va. 250, 10 S. E. 407, it was said:

“If one private citizen should' malee such a false accusation against another, it would be a base act, and when it is made against a judge, in respect to his official conduct, by an officer of his court, the offense is greatly aggravated and intensified, and manifests a much greater degree of turpitude and depravity.”

In Re Collins, supra, the court said:

“None should have known better than he his duty and obligation as an attorney, and that under his oath of office he was bound ‘to maintain the respect due to- the courts of justice and judicial officers,’ and ‘to employ for the purpose of maintaining the causes confided to him such means only as are consistent with truth.’ ”

Last, but not least, defendant is not the mere instrument through which this publication reached the people; he it is who gave birth to it.

[4-5] What should be the judgment of the court in the disbarment proceeding’s? At the threshold of this part of our discussion it is well h> differentiate between the two proceedings before us. As we have noted, one is to preserve the dignity of the court; this is accomplished through the punishment of those who offend against it. The other is to remove from the profession a person whose misconduct has proved him unfit to be intrusted with the duties and responsibilities belonging to the office of an attorney. In the one proceeding, punishment is the means by which the end is sought -to be accomplished; in the other, punishment has no appropriate place. The one is quasi criminal in its nature. State v. Edwards, supra. The other, though the misconduct complained of may constitute contempt of court or even be a crime against the state, is purely civil. In re Kirby, 10 S. D. 338, 73 N. W. 95; Wernimont v. State, 101 Ark. 210, 142 S. W. 194, Ann. Cas. 1913D, 1156; State v. Root, 5 N. D. 487, 67 N. W. 590, 57 Am. St. Rep. 568; State v. McRae, 49 Fla. 389, 38 South. 605, 6 Ann. Cas. 580; Ex parte Wall, 107 U. S. 265, 2 Sup. Ct. 569, 27 L. Ed. 552; Randall v. Brigham, 7 Wall. 523, 19 L. Ed. 285; Ex parte Finn, 32 Or. 519, 52 Pac. 756, 67 Am. St. Rep. 550; Weeks on Attorneys at Law, § 80; Thornton on Attorneys at Law, § 867. In the W'ernimont Case it is said:

“Proceedings for the suspension or disbarment of attorneys for professional misconduct are not criminal, but civil in their nature. They -aré not instituted or intended for the purpose of punishment. Their object is to preserve the purity of the courts and the proper and honest administration of the. law. Attorneys are officers of the court, made so by its order when they are ad. mitted to practice therein. The purpose of the proceedings for suspension and disbarment is to protect the court and the public from attorneys who, disregarding their oath of office, pervert and abuse those privileges which they have obtained by the high office they have secured from the court. The right to practice law is not an absolute right, but a privilege only. It is but a license which the court grants by its judgment of admission to the bar, and which- the same court may revoke whenever misconduct renders the attorney holding such license unfit to be entrusted with the powers and duties of bis office. The revocation of such license is therefore only a civil proceeding, governed by the rules applicable to all civil actions.”

That the same conduct that -warrants punishment for contempt may justify disbarment is too clear for argument. As said by the court in Beene v. State, 22 Ark. 151:

“The power of the court to- punish * * * for contempt, by fine and imprisonment, -is one thing, and its power to strike an attorney from the roll i-s another and -distinct thing, though the misconduct for which an attorney may be disbarred may, in some instances, involve a contempt of court.”

It does not however, follow that every act of an attorney that constitutes a contempt of court would necessarily warrant the court in canceling or even suspending the license of such attorney. While this proceeding is -civil in its nature, its results may be most serious to- the one disbarred. This was fully recognized by this court in Re Egan, supra, as well as in Re Kirby, 10 S. D. 322, 414, 73 N. W. 92, 907, 39 L. R. A. 856, 859. The mere payment of a fine may be as naught compared with the misfortune of being deprived of the means of livelihood and the disgrace and mortification that must come to one -declared unfitted to practice an honorable profession. As was said in People ex rel. Elliott v. Green, supra:

“The grave and delicate responsibility imposed upon this court by the statute i-s duly appreciated'. The profession -of an attorney is to him of the -highest importance. It -comprises his regular means of subsistence. N-o- argument therefore is necessary to show that the power of striking from the roll should be most judiciously exercised. The case should be clearly made out to warrant a removal from the bar, and the removal should ap-irear to be necessary either to the maintenance of that degree of respect which is due to courts and judges, or to preserve the respectability of the legal profession itself. The power should never be arbitrarily exercised.”

In People v. MacCabe, 18 Colo. 186, 32 Pac. 280, 19 L. R. A. 231, 36 Am. St. Rep. 270, the court says:

“A court intrusted with the powe: to admit and disbar attorneys should be considerate and careful in exercising its jurisdiction; the interests of the respondent must in every case be weighed in the balance against the rights of the public; and the court should endeavor to guard and protect both with fairness and impartiality.”

In this connection the words of Chief Justice Marshall in Ex parte Burr, 9 Wheat, 529, 6 L. Ed. 152, are most appropriate:

“On one hand, the profession of an attorney is of great importance to an individual, and the prosperity of his whole life may depend on its exercise. The right to exercise it ought not to be lightly or capriciously taken from him. On the other, it is extremely desirable that the respectability of the bar should be maintained, and that its -harmony with the bench should be preserved. For these objects, some controlling power, some discretion ought to reside in the court. This discretion ought to be exercised with great moderation and judgment; but it must be exercised; and no other tribunal can decide, in a case of removal from the bar, with the same means of information as the court itself.”

[6] Defendant does not stand before us charged and convicted of having violated any duty he owed a client; he does not stand charged and convicted of having taken advantage of his position as attorney that he might overreach and wrong" a client to his own financial gain; he does not stand charged and ^ conicted of 'having m-ade a wrongful use of the courts, or of any of the various instrumentalities of the law under his control, to wrong his fellowman; he does not stand charged and convicted of unprofessional conduct toward his fellow attorneys; he is not even charged and convicted of a long-continued course of contemptuous conduct toward this and other courts. With one single exception, other than the misconduct of which he now stands convicted, so fas as this court is advised, defendant lias always maintained, toward this and the other courts of this state, that respect and courtesy -that is due the courts from its attorneys, and has never before sought, in any manner or degree, to weaken or destroy the confidence of the public in the courts. The exception above noted occurs in this defendant's brief presented to this court in the case of McCoy v. Handlin, supra. In our opinion in that case it will be found that we called attention to the absence, in such brief, of reference to authorities supporting defendant’s contentions upon the real issues then before us; in such opinion we also expressed surprise at counsel’s having quoted, as though from the opinions therein, the mere argument of counsel presented in a certain leading case, the opinions in which were in direct conflict with such argument and were directly opposed to defendant’s contentions. But it was not these features of defendant’s brief in McCoy v. Handlin, supra, that showed lack of respect, in fact constituted such contempt of court as would ordinarily have required action on the part of this court. In such brief, counsel said:

“The issuing of the order to show cause in this case implies the right to answer it. It implies that, if legal cause is shown by Mr. Handlin why Judg-e McCoy should not have this money, the court will so decide. Under the answer, a matter which will not be disputed, each of the judges of this court have for years been accepting the money under this same act of the Legislature which the defendant claims is unconstitutional. To 'hold with Mr. Handlin would be for the judges to admit that they have been purloining the treasury of this state during that period * * * Could I stanid before you convinced clearly as I am that the act of the Legislature attempting to give you $50 per month in addition to your salary clearly violated the Constitution, and ask you to hold yourselves guilty? Could you admit your guilt?

And again he said:

“You were elected judges of this court, you took the oath of office, you knew what the Constitution provided, and it would take only a child, simply, were he not biased, to' see that the donation offered you under section 239 is nothing- but graft. * * * While that Constitution does exist, you and I alike must live within it, or be entitled to wear the brand of a Benedict Arnold.”

And defendant closed his brief with the quotation: “Mene, Mene, Tekel Phares.”

What language could have been more insulting and contemptuous — what language could have tended more strongly to • embarrass this court in the proper discharge of a duty, unpleasant in its very nature, and one from which it would have been only too glad to escape if the Constitution of this state, had but given it an avenue of escape? With what were the members of this court charged? Not that we had innocently, and through a mistaken belief that the law in question was constitutional, taken that which did not -belong to us. No, we were charged with being grafters; yes, with even being purloiners of the state’s treasury- — in other words, thieves. Not -content with that, we are charged with knowing the provisions -of the Constitution and with failing to- heed the same, and thus meriting the brand of a traitor — one guilty of treason to his country. And then, as though to warn us of the fate awaiting us at the hands of an outraged people, our attention is drawn to “the handwriting- on the wall.” For lesser offenses, a brief submitted to- the court by the defendant in Re Robinson, 48 Wash. 153, 92 Pac. 929, 15 L. R. A. (N. S.) 523, 15 Ann. Cas. 415, was ordered stricken from the files and defendant suspended from practice for a period of six months, and in Re Philbrook, supra, the defendant was suspended from practice for a period of three years and thereafter until -the further order of the court removing the suspension. It would be -an in-sult to the intelligence -of defendant to even suggest that he may not have- not known the impropriety of putting such matter into a brief — a document whose sole legitimate purpose is to aid the court in determining the issues of law and fact raised in the particular case. Ejven overlooking the contemptuous features of such brief, a reading thereof can but convince any lawyer that such brief was not designed to aid this court in reaching a correct conclusion in the case then before us, but was designed f-or the sole purpose of general 'distribution, to mislead the general public as to what was in issue in such case, and thus, when this court should have decided- the case, to leave with the public a wrong impression as to what 'had actually been decided. After the opinion of this court in the case of McCoy v. Handlin was handed down, defendant published the same in pamphlet form, inserting criticisms thereof in footnotes. It is evident, from statements therein made, that defendant intended such pamphlets for general distribution. Bach member of this court was furnished one by the defendant, and we trust one has come into, the 'hands of every lawyer in the state. Because copies were thus furnished this court, we feel warranted in referring thereto, especially for the purposes hereinafter expressed. Such pamphlet contains the following introduction:

“The Opinion of the Court and Commentary Thereon by Joe Kirby of the Sioux Balls Bar.

“Believing that no case involving questions of such momentous importance has heretofore come before the courts of our state, also fearing that many of the misstatements made by the court would go into history unchallenged and in turn form the basis for misapplication of the law I have concluded to present in this form the opinion of the court and point out some of the many errors therein contained.”

And such pamphlet contains an extensive “Conclusion,” in which we find the following:

“I want it understood' that the publication of the foregoing opinion with my notes thereto, is not the grumblings of a defeated lawyer but written with the hope than when, it is examined in connection with such notes, it will awaken a disapproval among the people of our state and particularly among the members of my profession.”

It may be asked: (i) W'hy was not such misconduct made the basis of contempt or disbarment proceedings? (2) Why it is referred to at this time? Both of these questions deserve answer.

Answering the first question, we repeat what we have already stated herein in relation to such misconduct:

“Courts are ordinarily remiss in their duty to, and invite the just contempt and criticism of, the general public * * * if they overlook the same and allow it to go, unpunished.”

But there must and will arise extraordinary cases — those with unusual surroundings — which require unusual treatment. That which is demanded of us above all else is that we do nothing that will weaken or destroy the confidence of the .public in-the courts, and this even if, to avoid such result, we refrain from doing that which duty would ordinarily demand of us. This court overlooked this former misconduct on the part of defendant, lest there be' right-minded people, who, understanding the direct financial interest which every member of the court had in. the result of that case, would misjudge the motive prompting it, if it meted out to defendant that punishment which his misconduct warranted, and believe that such action as it took was attributable to a spirit of revenge; lest action might be more dangerous to the public weal than inaction, it elected to take no action. In this proceeding the court refers to and considers such matters, not against defendant, but, as hereinafter shown, in his behalf.

Answering the second question, we would say that we now call attention to such prior misconduct, to the criticism of defendant’s brief found in our opinion in the case of McCoy v. Handlin, supra, to the other peculiarities of such brief, and to defendant’s published criticism of our opinion, because therein we find that which, to our minds, furnishes conclusive explanation of the misconduct with which defendant now stands charged. Defendant’s mind is so engulfed in the thought that he has a great duty to discharge — -“to awaken a disapproval (of this court’s decision in the McCoy-Handlin Case) among the people of our state and particularly among the members of my profession’' — that the clear light of reason, that usually directs such mind, is unable to enter therein, leaving him as one suffering an illusion; under no other theory are we able to explain defendant’s remarkable and unjustifiable conduct.

Believing that the misconduct of which defendant stands charged does not, when considered alone, show the defendant so unfitted to be an attorney of this court as would authorize a judgment of' disbarment; -believing that, in all else, save perhaps that one matter in respect to which he seems to be suffering an illusion, defendant will hereafter act toward this court with all due respect; believing that suspension of his rights as an attorney would not hasten the .time of his disillusion, the only fact that would warrant such- suspension; and believing that the -public, whose servants we are and whose best interests- w-e seek to promote will approve of our giving to- defendant the benefit of any doubt we may have as to what our judgment should be: Wc are oí the opinion that the disbarment proceeding should be dismissed. Such proceedings aie dismissed without costs.