Commonwealth v. Stump

• Decision Date: 10 February 1933
• Parties: COMMONWEALTH ex rel. PIKE COUNTY BAR ASS'N v. STUMP.
• Court: Kentucky Court of Appeals

57 S.W.2d 524

247 Ky. 589

COMMONWEALTH ex rel. PIKE COUNTY BAR ASS'N v. STUMP.

Court of Appeals of Kentucky

February 10, 1933

Rehearing Denied March 17, 1933.

Appeal from Circuit Court, Pike County.

Proceedings by the Commonwealth, on the relation of the Pike County Bar Association, for the disbarment of O. A. Stump, an attorney. From a judgment of dismissal, relators appeal.

Reversed with directions.

J. W Cammack, Atty. Gen., J. M. Gilbert, Asst. Atty. Gen., and A F. Byrd, of Lexington, for appellants.

J. C Hopkins, of Prestonsburg, and Stratton & Stephenson and W. W. Barrett, all of Pikeville, for appellee.

THOMAS J.

On October 23, 1930, the Pike County Bar Association in the name of the commonwealth of Kentucky, filed in the Pike circuit court an information in which there was embodied 11 distinct charges or grounds, which, if true, exhibited such conduct as that the informants concluded were sufficient to authorize the court to revoke respondent's license to practice law, and the court was asked to issue its rule against him to appear and show cause why he should not be disbarred. The rule was issued as prayed for, and respondent appeared and denied in toto each ground preferred in the information; but he also interposed two pleas against the right of the court to entertain the motion or proceeding, and which are: (a) That in August, preceding the date of the filing of the information, a similar one was filed in the court by the same movant asking for the same relief, i. e., the issuing of a rule against respondent to show cause why his license to practice law should not be revoked, and that upon a hearing thereof the court overruled the motion and declined to issue the rule, and respondent relies thereon in bar of the present proceedings; and (b) that respondent was at that time the commonwealth's attorney for the Thirty-Fifth judicial district in the commonwealth, and that if the rule should be made absolute on final hearing and a judgment of disbarment entered it would ipso facto disqualify him from holding the office to which he had been elected, and thereby result in his impeachment, which he contended could not be done, except in the manner pointed out in the constitution, i. e., a preferment of impeachment charges by the lower House of the General Assembly, and a trial and conviction therefor by the Senate; and which he also relied on in defense of the disbarment proceeding. It will be seen that both of those pleas are in bar of a hearing of the charges on the merits, and in discussing them they will be referred to by our designations. It will be necessary to dispose of them in advance of a consideration of any of the grounds alleged in the information.

In disposing of plea (a) we deem it necessary to only call attention to the ground upon which it is based, including the record upon which it was made. All that was before the court at the hearing, following the filing of the first information, was that document. Its contents were all that was necessary for the court to examine or consider in determining whether or not he would issue the rule prayed for therein. Such a proceeding is closely analogous to the filing of an affidavit before an officer authorized to issue a warrant of arrest for the purpose of procuring one against the person therein named, in which case it is the duty of the officer to issue the warrant if sufficient facts therefor are contained in the affidavit. The rule asked for in this case does not imply that the respondent named therein is guilty of the charges preferred against him in the information any more than is the defendant arrested under the warrant thereby presumed guilty of the offense charged in it or the affidavit to procure it. The guilt or innocence of the one charged in either case is to be subsequently determined upon proper arraignment for that purpose. Therefore, in this case the court, when the first information was filed against respondent, should have only examined the grounds stated in the information, and, if any one of them were sufficient to authorize an investigation, to then issue the rule citing respondent to appear and defend, after which, if issue was made, would be the only proper time to investigate and adjudicate the merits of such charge or charges. Therefore, the denial of the rule at the time it was first applied for no more involved the merits of the case than would a refusal of the court to issue a warrant upon a sufficient affidavit bar the right of the same or another court to later issue a warrant upon the same facts contained in another affidavit; and that, too, regardless of whether or not the defendant in the one case, or respondent in the other, attempted to inject into or force upon the court a meritorious defense in opposition to issuing the warrant in the one case or the rule in the other. We therefore conclude that this plea (a) was and is unavailable.

Our conclusion is that plea (b) must share the same fate. In the annotation found in 9 A. L. R. on page 189, but beginning on page 197, the annotator says: "Acts of a prosecuting attorney in violation of his oath of office and against good morals are sufficient to justify his disbarment or suspension from practice." In support of that statement the annotator cites these cases: Re McCowan, 175 Cal. 51, 170 P. 1100; People ex rel. Colorado Bar Asso. v. Anglim, 33 Colo. 40, 78 P. 687; People ex rel. Stead v. Phipps, 261 Ill. 576, 104 N.E. 144; Re Norris, 60 Kan. 649, 57 P. 528; Re Disbarment of Lyons, 162 Mo.App. 688, 145 S.W. 844; Re Simpson, 9 N.D. 379, 83 N.W. 541; Re Voss, 11 N.D. 540, 90 N.W. 15; Re Sitton, 72 Okl. 13, 177 P. 555; Re Jones, 70 Vt. 71, 39 A. 1087, 1090, and State v. Hays, 64 W.Va. 45, 61 S.E. 355, 356.

They all sustain the principle embodied in the general statement of the inserted excerpt from the annotation, and which the court in each case fortifies by the most logical and convincing reasoning. In doing so they point out that the loss of the office in case of disbarment is only an incident thereto, which results as a consequence of the loss of the right to practice law, since the prosecuting attorney is, most generally at least, required to be a member of the bar and have license to practice law as a prerequisite to holding his office, and if he is deprived of such license he is no longer qualified to fill the office. They also correctly hold that the purpose and object of the disbarment proceeding is not to deprive the respondent of his office, but only to take away from him a necessary qualification to hold it, and which is no more an impeachment proceeding than if the officer should remove from the state and become a nonresident, thereby disqualifying him from holding the office, and a controversy should subsequently arise as to whether or not there was a vacancy in his office. In that case the result of a determination by the court of the permanent removal of the officer from the jurisdiction would necessarily result in the forfeiture of his office as effectually as if he had been impeached; but surely it could not be insisted that the agency of government who had the right to appoint a successor, or a court who might be called upon to determine whether or not there was a vacancy, would be deprived or barred from performing such duties, because the result would be as effectual to deprive the incumbent of his office as would follow a finding of guilty on a charge of impeachment.

Both in the illustration, and in a disbarment proceeding, such as we have here, the officer and respondent would be the producer of his own disqualification, and the following investigation would be only for the purpose of ascertaining and determining whether or not the disqualification existed. Moreover, it is very pertinently stated in those opinions, or some of them, that the office of prosecutor constitutes no shield or protection to the incumbent from a failure to observe his oath and consequent duties as an attorney at law; the comments of the court being to the effect that his oath of office rather enlarges his obligations of uprightness, honor, and rectitude than as serving as a protection to him from the consequences of their nonobservance, since in accepting the office he makes the sovereignty (that he takes an oath to serve) his client and agrees under oath to faithfully and uprightly do so, and which in part consists in impartially prosecuting the guilty as well as to protect the innocent, and to not deviate from either course for any corrupt or selfish motive. Text-writers on the subject coincide with the annotation referred to, and we deem it unnecessary to lengthen this opinion by a citation of them. A contention of a similar nature was made in the case of Commonwealth v. Rowe, 112 Ky. 482, 66 S.W. 29, which was a prosecution against a commonwealth's attorney for the Sixth judicial district on a charge amounting to malfeasance in office. No impeachment proceedings had been preferred against him; nor had he been impeached. In overruling the contention the court considered our various applicable constitutional and statutory provisions, and held that a successful impeachment proceeding was not a condition precedent to the prosecution of the officer for the malfeasance charge.

But it is argued that the Rowe Case is not applicable, since it was a prosecution against the officer for the commission of a crime, and which section 68 of our Constitution expressly permits and authorizes in advance of impeachment, notwithstanding the commission of the acts constituting the crime may also be cause for impeachment; the language of the section relied on being: "But the party convicted [under impeachment proceedings] shall, nevertheless, be subject and liable to indictment, trial...