Ex parte Thompson

• Decision Date: 09 March 1933
• Docket Number: 6 Div. 214.
• Citation: 228 Ala. 113,152 So. 229
• Parties: Ex parte THOMPSON.
• Court: Alabama Supreme Court

152 So. 229

228 Ala. 113

Ex parte THOMPSON.

6 Div. 214.

Supreme Court of Alabama

March 9, 1933

Rehearing Denied June 9, 1933.

Further Rehearing Denied Oct. 12, 1933.

Rehearing Denied to Bar Commission Dec. 14, 1933.

Further Rehearing Denied Jan. 25, 1934.

Petition of Von L. Thompson to review action of the Board of Commissioners of the State Bar disbarring him from the practice of law.

Modified.

THOMAS and BROWN, JJ., dissenting on rehearing.

Arthur Fite, of Jasper, and Ernest Matthews, of Birmingham, for appellant.

J. W Gillon, Jr., Jim C. Smith, W. H. Sadler, Jr., and Frank Bainbridge, all of Birmingham, for appellee.

KNIGHT Justice.

Disbarment proceedings instituted before the board of commissioners of the state bar by Marvin Woodall, Stuart Stone, and J. Wiley Logan, "as members of the Grievance Committee of the Tenth Judicial Circuit of Alabama" against the appellant, Von L. Thompson, an attorney at law in the state of Alabama. These proceedings resulted in the conviction by the said board of the appellant, and an order was entered in the cause disbarring and excluding the said Thompson from the practice of law.

It is made to appear from the record that the said Marvin Woodall Stuart Stone, and J. Wiley Logan were duly appointed as the grievance committee of the bar in and for the tenth judicial circuit of Alabama, and constituted such committee at the time of the commencement of the proceedings in this cause.

The authority, if any, for the institution of the proceedings against this appellant is predicated upon an act of the Legislature of Alabama, entitled, "An Act to provide for the organization, regulation and government of the State Bar including admissions and disbarments of lawyers," Gen Acts 1923, p. 100 et seq. (and which is carried into the Code as sections 6220-6239 and 3318), and upon amendments to said act passed at the regular session of the Legislature of Alabama of 1931, amending sections 2, 6, 10, 11, and 21, and sections 14 and 15 of said original act. Gen. Acts 1931, pages 284 and 683.

On the 26th day of August, 1931, the above-named members of the grievance committee of the tenth judicial circuit of Alabama, pursuant to the terms and provisions of said original act, and the act amendatory thereof, filed with the board of commissioners of the state bar a complaint in writing, duly sworn to by each member of said grievance committee, wherein and whereby they charged the said Von L. Thompson, as such attorney at law, with violating or failing to comply with rule No. 27 of section A of the rules governing the conduct of persons admitted to practice law in the state of Alabama, as heretofore formulated and promulgated by the board of commissioners of the state bar, and since the adoption thereof in this: That in case No. 50690 in the circuit court of the tenth judicial circuit of Alabama, wherein E. I. DuPont deNemours & Co., a corporation, was plaintiff and Von L. Thompson was defendant, there was a summary judgment rendered by the court on February 2, 1929, for $583.44, against said defendant and in favor of said plaintiff for money collected by the defendant as its attorney, and upon which judgment an execution has been issued, and has been returned "no property." This complaint was duly signed by each of the grievance committee.

A copy of said complaint was served upon the said Von L. Thompson by the sheriff of Jefferson county, Ala., on the 26th day of August, 1931.

April 14, 1932, was first set and fixed for the hearing of said charges, and the defendant was given due notice thereof, as well as of the place of hearing. By a subsequent order, August 1, 1932, was fixed and set for the hearing, and the courthouse, in Jefferson county, was fixed as the place of hearing. On that day, the said Thompson appeared and filed numerous grounds of demurrer to the "complaint or petition." These demurrers take the point that the statutes under which the proceedings were instituted are unconstitutional and void, being in violation of sections 44, 13, 11, 139, and 43, respectively, of the Constitution of Alabama.

Upon the argument of the case, as well as in briefs filed, the appellant's principal attack upon the statute is that it denies him a trial by jury of the charges preferred against him. If this contention is well founded, then it would be useless for us to consider the other questions presented by the appeal. We will, therefore, give first consideration to this contention.

The Mississippi territory was created by Act of Congress in the year 1798, and the states of Alabama and Mississippi were thereafter created out of that territory. Mississippi in the year 1817 and Alabama in 1819.

At the time of the admission of Alabama and Mississippi into the Union as states, there existed certain territorial statutes, among them, one providing for the admission of attorneys to the bar, and for their suspension and exclusion. This statute appears in the shape of an act of the territorial Legislature of Mississippi territory in Toulmin's Digest of the Laws of Alabama at page 22. The third section of this territorial act reads:

"That if the judges of the superior courts, from their own observation, detect any malpractice in the said courts, in any counsel or attorney of those courts; or if complaint in writing be made to them of such mal-practice in the said courts, or in the county courts of any county, the party accused shall be summoned to show cause why an information should not be filed against him; and if such information should be ordered, and the counsel or attorney so offending should be found guilty of the matter therein charged, the said judges of the superior courts may either suspend his license during a certain time, or vacate it altogether, as they shall judge most proper; first ordering a jury to be impaneled for the trial of such information. And the judges of the superior, and justices of the county courts, shall have power to fine any attorney for misbehavior or contempt offered to them, and may cause any attorney practicing in said courts, to find security for his good behavior." (Italics supplied.)

A provision for jury trial in disbarment proceedings has been brought forward in every Code of this state, certainly down to 1923.

It is urgently and earnestly insisted by learned counsel appearing here for appellant that this right to a jury trial, in such proceedings, having been given to an accused attorney by the above-quoted section of the territorial Legislature, and being in force at the time of the adoption of the first state Constitution in 1819, thereby received constitutional sanction in such way as to place the right beyond future legislative interdiction.

It is further insisted by the appellant that section 11 of the present Constitution of Alabama, corresponding to section 28 of art. 1 of the Constitution of 1819, viz., The right of trial by jury shall remain inviolate, extends not only to all cases in which the prerogative existed at common law, but to all cases where this right was secured by statute at the time the Constitution was adopted. Diligent counsel on both sides of this litigation have brought to our attention many adjudged cases bearing upon this vexed question, and their briefs leave no room to doubt that they have made far-reaching investigation of the law in order to aid this court in reaching a proper solution of the question now before us.

In determining the constitutional question presented here, it is necessary that we should consider other pertinent provisions of that instrument, because its several provisions must be construed as standing in pari materia.

"The powers of the government of the State of Alabama shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are legislative, to one; those which are executive, to another; and those which are judicial, to another." Constitution, § 42.

"The judicial power of the state shall be vested in the senate sitting as a court of impeachment, a supreme court, circuit courts, chancery courts, courts of probate, such courts of law and equity inferior to the supreme court, and to consist of not more than five members, as the legislature from time to time may establish, and such persons as may be by law invested with powers of a judicial nature," etc. Section 139, Constitution 1901.

We have mentioned the above provisions of the Constitution for the reason that we shall have occasion hereafter in this opinion to allude to the same.

We shall first consider what were the inherent powers of the courts, at common law, over attorneys, with respect to suspension and disbarment. A short review of the history of the profession "in its home across the seas," will suffice to show the plentitude of control there asserted over the behavior of attorneys. In the parent country an accused attorney had no right to jury trial when brought before the courts to defend his conduct as an attorney.

In the case of Samuel H. Randall, petition for mandamus, 11 Allen (Mass.) 473, Chief Justice Bigelow, writing for the court said with respect of the power of the courts over attorneys: "On the contrary, at common law an attorney was always liable to be dealt with in a summary way for any ill practice attended with fraud or corruption, and committed against the obvious rules of justice and honesty. No complaint, indictment or information was ever necessary as the foundation of such proceedings. Usually they are commenced by rule to show cause, or by an attachment or summons to answer; but these are issued on motion or bare suggestion to the court, or even on the knowledge which the court may acquire of the doings of an attorney...