Commonwealth ex rel. Ward v. Harrington

• Decision Date: 06 November 1936
• Citation: 98 S.W.2d 53,266 Ky. 41
• Parties: COMMONWEALTH ex rel. WARD v. HARRINGTON.
• Court: Kentucky Court of Appeals

98 S.W.2d 53

266 Ky. 41

COMMONWEALTH ex rel. WARD v. HARRINGTON.

Court of Appeals of Kentucky

November 6, 1936

Proceeding by the Commonwealth, on the relation of W. J. Ward, against J. L. Harrington, in the matter of complaints filed with the Board of Commissioners of the State Bar Association, who sustained two of the charges preferred against respondent.

Findings of the Board on two of the preferred charges sustained, and penalty of censure inflicted.

B. M Vincent, Atty. Gen., W. Owen Keller, Asst. Atty. Gen., and John M. Waugh, of Ashland, for complainant.

M. O Wheeler and C. F. Pace, both of Paintsville, for respondent.

Edmond F. Trabue, Watson Clay, and Andrew Duncan, Jr., all of Louisville, and Harry B. Mackoy, of Covington, amici curiæ for complainant.

Samuel M. Wilson, of Lexington, amicus curiæ for respondent.

THOMAS Justice.

Our Legislature at its 1934 session enacted chapter 3, p. 5, of the Session Acts of that year, the title to which is "An Act providing for the adoption and promulgation by the Court of Appeals of Kentucky of rules and regulations defining the practice of law, prescribing a code of ethics governing the professional conduct of attorneys at law and the practice of law, establishing practice and procedure for disciplining, suspending and disbarring attorneys at law, providing for the organization and operation of a Bar Association, prescribing fees to be paid for the administration of this Act, and the collection and disbursement thereof." By its first section it purports to confer authority upon the Court of Appeals to adopt and promulgate rules and regulations from time to time (a) defining practice of law; (b) prescribing a code of ethics for attorneys at law; (c) establishing rule of practice or procedure for disciplining attorneys; (d) for organizing and governing a State Bar Association, composed of attorneys at law in the commonwealth; and (e) prescribing and fixing a schedule of fees for the purpose of creating a fund for the administration of the act. Section 2 of the act says: "When and as the rules of Court herein authorized shall be prescribed, adopted and promulgated, all laws or parts of laws in conflict therewith shall be and become of no further force or effect to the extent of such conflict." It is the attempted delegation of authorities (a), (b), (c), and (d) that are some of the questions involved on this hearing.

The act is now sections 101-1 and 101-2 of Baldwin's 1936 Revision of Carroll's Kentucky and 1936 Ed. Kentucky Statutes. Following its taking effect the Court of Appeals framed and promulgated a set of rules and by-laws for the organization of attorneys in the commonwealth into a State Bar Association. Rule 2 prescribed for the creation and establishment of a Board of Commissioners of the State Bar Association to be designated and known as "The Board," which "shall act as administrative agents of the Court of Appeals for the purpose of enforcing such rules and regulations as are prescribed, adopted and promulgated by the Court of Appeals under the aforesaid act." (1934.) By rule 12 authority is conferred upon the Board in the manner therein pointed out to hear complaints filed with it against members of the bar for such violations of the rules of ethics and professional deportment as call for disciplinary action, either a mere reprimand, or suspension from the right to practice for a definite period, or total disbarment. The method of procedure and practice before the Board, after the giving of explicitly prescribed notice to the accused, is clearly set out therein.

The relator in this investigation, W. J. Ward, filed certain complaints with the Board against the respondent, J. L. Harrington, in which he was accused of the commission of certain acts which the relator insisted disqualified him for practicing law; a portion of which concerned official misconduct of respondent as commonwealth's attorney for the Twenty-Fourth circuit court judicial district of this commonwealth, while the others concerned his practice in representing litigants in their private and individual litigation with others. The Board assembled and heard evidence and made its recommendations in writing and filed them in this court. It dismissed a number of charges because of remoteness of occurrence (five years or more) prior to their filing by the relator. Of the others it sustained two of them and dismissed the remainder as not sufficiently established by the testimony.

Defendant in the rule issued by this court, in response thereto, makes defense based upon two grounds: (1) That this court has no jurisdiction in the premises, because of two reasons, (x) that section 110 of our Constitution limits its jurisdiction to appellate hearings only and that this procedure, originally filed in the Court of Appeals, is not an appellate one, and (y) that the 1934 act, supra, is unconstitutional and void because, as contended, it is an unauthorized delegation of legislative authority to the court contrary to section 28 of our Constitution. If in error as to the subdivisions of ground (1), then (2) that the evidence does not sustain the findings of the Board in the two charges it sustained. It will thus be seen that the response presents for our determination two questions of law (x and y, supra), and one of fact. They will be answered in the order named, taking up first legal question presented by reason (x).

It is gratifying, as well as enlightening, to read the briefs filed in behalf of respondent in support of the two divisions in support of ground (1). Of course the position of such learned counsel--and particularly with reference to reason (x)--is, that we cannot function at all except as is prescribed in section 110 of our Constitution, saying in part: "The court of appeals shall have appellate jurisdiction only, which shall be co-extensive with the state, under such restrictions, *** as may from time to time be prescribed by law." The other sentence of the section confers power on this court "to issue such writs as may be necessary to give it a general control of inferior jurisdictions." Clearly, this proceeding is not embraced by any power conferred by that last sentence, and the question then is, whether it is prohibited by the first excerpt taken from that section (110) of our Constitution, as is argued by learned counsel, and which, if true, would--as he also insists--deprive this court of the right and authority to hear and determine this investigation, and that a dismissal of the charges preferred against respondent for the lack of necessary jurisdiction in this court should be entered. A like consequence would result if reason (y) should be sustained, since in that event the board that investigated the charges and made the report filed in this court would be an unauthorized one, because its creation and authority emanates from rules prescribed and promulgated by this court pursuant to alleged wrongfully delegated legislative authority under the 1934 act.

Opposing counsel (amici curiæ and employed) with equal learning and vigor combat the arguments of counsel for respondent in their effort to sustain the two legal divisions of ground (1); neither of which, as they (opposing counsel) maintain (and we think successfully), is sustainable, and that there exists no legal obstacle (constitutional, statutory, or otherwise) in the way of this court entertaining this hearing, and disposing of it according to the law and the facts. The fundamental error of learned counsel for respondent, as we conclude, consists in their failing to recognize the distinction between a governmentally created court machine as an implement of government, and what it may do when functioning in discharging the purpose of its creation. We shall refer to the two statuses as "inactive" and "active" courts.

The institution called a court is a governmental machine, created by the people of the sovereignty for the accomplishment of an essential purpose in the preservation of civilized society. That purpose, briefly stated, is to investigate and adjudicate controversies between citizens when they are unable to amicably adjust them; and between citizens and the government, or some of its subdivisions. The principles upon which such adjustments are made are supposed to be rooted in the soil of unalloyed justice. The means employed in the performance of the work of the machine (designated as a court) in reaching its conclusions (designated as judgments) are prescribed by the laws of the sovereignty. Sometimes possibly, in constitutional provisions, sometimes by the legislature through the enactment of practice statutes, and sometimes through rules of court; but none of which essentially bear upon the question before us, since it (question before us) relates to the power and authority of the court (by any prescribed rules of practice) to entertain and determine at all the investigation involved in this proceeding. We have stated that the governmental machine called a court occupies two statuses--one as an inactive machine, and the other as an active one. Under its organization it is presided over and managed and conducted exclusively by an officer or officers called a "judge" or "judges." It is his, or their, duty to keep it in repair and effective working order (mechanical supervision) so that it may accomplish its work when it becomes active (functioning) in the prescribed field for its operation and within the limitations imposed and described as its "jurisdiction." The same managing officer or officers (judge or judges) operate and direct it when active, and when so engaged they are clearly exercising "jurisdiction," as is contemplated in section 110 supra, of our Constitution. But, whether they are likewise...