Danforth v. Egan

• Decision Date: 10 February 1909
• Citation: 119 N.W. 1021,23 S.D. 43
• Parties: GEORGE J. DANFORTH, Plaintiff and respondent, v. GEORGE W. EGAN, Defendant and appellant.
• Court: South Dakota Supreme Court

23 S.D. 43, 119 N.W. 1021 (1909)

GEORGE J. DANFORTH, Plaintiff and respondent v GEORGE W. EGAN,

Defendant and appellant

South Dakota Supreme Court

Appeal from Circuit Court, Minnehaha County, SD

Hon. Joseph W. Jones, Judge

Affirmed

Muller & Conway

Attorneys for appellant.

George J. Danforth, Park Davis, and Alpha A. Orr

Attorneys for respondent.

Opinion filed February 10, 1909

WHITING, J.

This is an election contest case, wherein the plaintiff and respondent contests the right of defendant and appellant to qualify for, and hold the office of, state’s attorney in and for Minnehaha county. The decision of the lower court was against the defendant, and he appeals from the judgment of said court, and the order of said court denying a new trial.

No questions were raised upon the pleadings, and the cause was submitted to the trial court upon the facts as they appeared in the pleadings, and by a stipulation made in open court. The facts are, in brief, as follows: The defendant, George W. Egan, a person over 25 years of age, and a resident of Minnehaha county for more than a year prior to November, 1908, did at the genera; election on November 3, 1908, receive a majority of the votes cast for the office of state’s attorney, and received the certificate of election for said office. Said Egan had held a license to practice as an attorney in the courts of record of this state, but on October 1o, 1908, by a judgment in disbarment rendered by the Supreme Court on that day, his license to practice had been revoked, and such judgment in disbarment has, since October 10, 1908, remained in full force and effect.

It is conceded that the only question in this case is as to the effect of this judgment of disbarment. Did it disqualify him from holding the said office of state’s attorney? It is a matter of common knowledge that questions of this kind, relating to the exer- cise of the right of the public to choose those who shall serve it as public officers, naturally tend to create strong feeling among the people generally, and more especially among those residing within the territory to be affected y the outcome, and we are fully aware that this is no exception to that rule. Taking this situation into consideration, and the further fact that this case has to do with questions peculiarly important and essential to the well-being of the great profession to which we as lawyers belong, certainly from choice we would refrain from entertaining this cause and determining the question raised. This is especially true when the determination thereof depends upon the legal effect of the previous judgment of this court. The writer of this opinion, however, is happily free from any feeling of embarrassment on this ground, inasmuch as he was not a member of this court when the judgment of the court was rendered in the disbarment case. It is strongly urged in this case that the electors of Minnehaha county should not be denied their free choice to select whom they wish to serve them, and they should not, and cannot, be denied this right of choice, unless they, together with the other people of this state, have limited such right of choice by the laws they have enacted. The people have enacted laws declaring that in order for people to hold certain offices they must be possessed of certain qualifications or belong, in the case of certain offices, to certain classes, and the people have thus limited their Sown rights. The people have also delegated to the courts of our state the duty to administer the laws of the state, including the restrictions upon the elective franchise, and it becomes the duty of the courts to fearlessly perform this work be it ever so unpleasant. We may well repeat the words of the Supreme Court of Colorado, in a case very similar to this, and involving many of the same questions raised herein, the case being that of People v. Hallet, found in 1 Colo. 352. The court said: “While the will of the people is sovereign, still it must be expressed in accordance with recognized public law, and when it exceeds the limit of this, it is the duty of the court to interfere, and by judicial’ checks afford the people time for reason and reflection.”

1. Can the appellant appear in a court of record ?

As we read the brief of appellant, he virtually concedes that his election to the office of state’s attorney does not entitle him to appear in the courts of record of this state as such state’s attorney, when he could not appear in matters not pertaining to such office; but, inasmuch as we consider this admission, if well founded, to be fatal to the claims of appellant, we will not pass it without full consideration.

Did the framers of the Constitution intend to indirectly take from the courts, in favor of a certain excepted class of persons, a right which the statutes of the territory had recognized as resting in the courts—a right recognized for centuries, by all countries and states having laws based on the English common law, as the inherent right of the court, a right necessary in the very nature of courts and the duties devolving upon them, a right which, if lost, would soon bring the, courts of our land into contempt—the right to say who shall as attorneys be recognized as officers of the courts, together with the right to expel such persons whenever they have been adjudged unworthy or unfit for this important trust? This right of the courts is as much the law of our land, and of as much dignity as such, as any law found in the Constitution or statutes. It is not dependent upon either the Constitution or statutes for its existence, but exists fully in all courts of record unless expressly restricted or taken away by express legislation, and it is a serious question whether it lies within the power of the Legislature to more than regulate this right of the court, whether the Legislature can more than prescribe certain qualifications for admission, leaving to the proper court to fix others if it sees fit, and whether the Legislature can more than fix certain grounds for disbarment, leaving to the court the right to disbar for other reasons within sound judicial discretion. 3 Am. & Eng. Ency. Law, pp. 287, 300, 301; 4 Cyc. 900. No one has ever contended that our Supreme Court, in which our statutes have left this right of admission and disbarment, had not full power to exercise such right the same as to reach any other judicial determination, or that the effect of its decision or judgment had in any manner been restricted. As regards the effect of disbarment the authorities are uniform that it deprives the party disbarred of every privilege to which his license had entitled him, not only his privileges in the court making the order of disbarment, but also his privileges in all courts. He cannot be recognized as an attorney in any courts of his own state, and the courts of other states, if aware of his disbarment, will refuse him permission to appear before them. 3 Am. & Eng. Ency. Law, 314, and cases cited. Certainly it cannot be contended, and the appellant has not in this action contended, that such judgment of disbarment was of less effect against him than as if he had not been chosen state’s attorney, and it is certainly true that no court in Minnehaha county, or in any other county in this state, can recognize him as an attorney. He could only appear in a court under circumstances authorizing any layman to appear.

2. not being able to appear in court as an attorney, can the appellant qualify for and hold.the office of state’s attorney ?

It would seem axiomatic, too plain for argument and serious contention, that one who cannot perform the duties of an office cannot qualify therefor. Our Constitution was adopted at a time when we had a complete code of laws, providing among other things, as to what were the duties of the person holding the office, which was then termed that of “district attorney,” and during statehood has been known as that of “state’s attorney.” The laws prescribing these duties had been in force since the very earliest days of our territory. They were in effect and in contemplation of the framers of the Constitution at ‘the time such Constitution was drafted,. it being well known that the territorial statutes would remain in full effect, as regards this matter, until such time as future Legislatures should change same. Very slight changes have been made regarding the duties of this office, the main duties of which have at all times been that of appearing for the county and state, in all civil and criminal matters, in the courts of the county. The other duties of this office are trivial as compared with this one, including, as it does in the word “appearing,” the signing of every paper to be used in any manner in a case or proceeding in court. It must be conceded, therefore, that if appellant should be admitted into this office, he could perform but a small part of the duties thereof.

It was held under the old common law in England that gross or palpable unfitness for an office disqualified one to hold such office, for the reason, as it was held, “for only men of skill, knowledge, and ability to exercise the same, are capable to serve the king and his people.” Throop on Public Officers, § 71. In an early New York case (Conroy v. Mayor, etc., 6 Daly [N. Y.] 490) it was held that one appointed court interpreter, who was totally ignorant of all foreign languages, could not draw pay for the time he was in said office. The court, in deciding this case, used these words: “There is no attempt to show the plaintiff is unsuited or unfit for the position he held, except in the sense of being at all times unable to perform its duties. By accepting the position of interpreter, when, if he understood no foreign language, he could not interpret at all, he stands convicted of a fraud, either upon the officer who appointed him, and the public from whom he was to receive...