In re Conner

• Decision Date: 12 January 1948
• Docket Number: 39956
• Parties: In the Matter of Harold D. Conner
• Court: Missouri Supreme Court

207 S.W.2d 492

357 Mo. 270

In the Matter of Harold D. Conner

No. 39956

Supreme Court of Missouri

January 12, 1948

Appeal from the Circuit Court of the City of St. Louis; Hon Robert J. Kirkwood, Judge.

Judgment modified and respondent disbarred.

Clem F Storckman, John S. Marsalek and Clifford Greve for appellants.

(1) The Supreme Court has the power and authority to provide by rule for an appeal by the informants in a disbarment case since the court has the inherent power to regulate the admission of attorneys and provide for their disbarment, has the power and authority to make rules to render its other powers effective and has the constitutional power to "establish rules of practice and procedure for all courts" and as far as procedure is concerned a disbarment case has many attributes of a civil action. In re Richards, 333 Mo. 907, 63 S.W.2d 672; Clark v. Austin, 340 Mo. 467, 101 S.W.2d 977; Williams, Tyrrell, on the source of authority for Rules of Court affecting procedure, Washington University Law Quarterly XXII, p. 459 et seq.; 2 Thornton on Attorneys at Law, sec. 758, pp. 1167-1169; State ex rel. Clark v Shain, 343 Mo. 522, 122 S.W.2d 882; 21 C.J.S., sec. 122 p. 182 et seq.; Art. V, Sec. 5, Constitution of Missouri, 1945. (2) Since Rule 5.11 expressly provides that either informants or respondent "may seek a review of such decision" of the trial court by the Supreme Court, the right thereby granted would be abortive and meaningless under the narrow and limited construction given to the term "appropriate proceedings" in the divisional opinion, as such construction would exclude all review of judgments of the Courts of Appeal in disbarment cases and would limit the review of circuit court judgments solely to appeals by the respondent. In order to make the rule an effective exercise of jurisdiction the phrase "by the institution of such appropriate proceedings as may be authorized under the Constitution and laws of Missouri" must be construed as intended to incorporate into the rule by reference all procedures for review, by appeal or otherwise, relating to actions generally, which procedures are either provided by law or not prohibited by the Constitution. In re Keenan, 47 N.E.2d 12, 313 Mass. 186; State ex rel. Clark v. Shain, 343 Mo. 522, 122 S.W.2d 882; In re Richards, 333 Mo. 907, 63 S.W.2d 672; In re Cate, 270 P. 968; 59 C.J. p. 609, sec. 165, p. 610, sec. 167; State v. Lloyd, 7 S.W.2d 344, 320 Mo. 236. (3) The court in construing its rules as in the construction of statutes should construe them so as to make them effective and serve a useful purpose rather than to nullify them or make them meaningless and inoperative. State ex rel. McAllister v. Dunn, 209 S.W. 110, 277 Mo. 38; Harbison v. Chicago, R.I. & P. Ry. Co., 37 S.W.2d 609, 327 Mo. 440, 79 A.L.R. 1; Flint v. Loew's St. Louis Realty & Amusement Corp., 126 S.W.2d 193, 344 Mo. 310; State ex rel. Perkins v. Long, 204 S.W. 914, 274 Mo. 169; State ex rel. Spriggs v. Robinson, 161 S.W. 1169, 253 Mo. 271; Spicer v. Spicer, 155 S.W. 832, 249 Mo. 582, Ann. Cas. 1914D, 238; Hawkins v. Smith, 147 S.W. 1042. (4) The right of this court to hear disbarment cases on appeal is an object naturally within its orbit, and is not in contravention of any presently existing statute; therefore, this court should exercise its inherent power under its own rules in this case, and if there were any statute enacted by a branch of the government of this state of coequal authority in contravention of or denying such right and inherent power of this court, such statute should and would be held to be violative of the Constitution of this state and, therefore, unconstitutional and of no force and effect. In re Richards, 333 Mo. 907, 63 S.W.2d 672, and other cases cited under Point (1) hereof. (5) This court should not, by its own rule, in a matter, as of right, such as an appeal to it, by its own appointees, in a matter involving its own government, its own rules, and its conduct of its officers under its own rules, seek the aid of the General Assembly to provide remedies, and if the rule here in question, i.e., 5.11, be so interpreted as to require such, the court has the right to amend it immediately or order it expunged as unnecessary and as tending to cast doubt upon the inherent right and power of this court, and such action should be retroactive in order that no party be denied full and complete hearing on appeal as of right, because of any part of the rules for the government of this court so retrogressive in character. In re Sparrow, 338 Mo. 203, 90 S.W.2d 401; In re Richards, 333 Mo. 907, 63 S.W.2d 672; Clark v. Austin, 240 Mo. 467, 101 S.W.2d 977. (6) Inherent power is, in this court, to hear and decide all appeals concerning matters pertaining to the misconduct of its officers, and if there is any rule of this court which provides for aid to this court from any source in hearing such matters concerning its own government, this court may and should hold such rule or such part of any such rule void and of no force and effect, as the Constitution of this state grants this court all powers necessary for the complete performance of its judicial function and its own protection. In re Sparrow, 338 Mo. 203, 90 S.W.2d 401; Leimer v. Hulse, 352 Mo. 451, 178 S.W.2d 335; Williams, Tyrrell, on the source of authority for Rules of Court affecting procedure, Washington University Law Quarterly XXII, p. 459 et seq.; Clark v. Austin, 340 Mo. 467, 101 S.W.2d 977; People ex rel. Illinois State Bar Assn. v. Peoples Stock Yards State Bank, 344 Ill. 462, 176 N.E. 901. (7) The right of appeal will never be denied by this court to its own appointees under its own rules in a matter pertaining to its own internal government, because either of the other two branches of our state government failed through oversight or otherwise, to provide this court's own appointees, appointed to administer its own rules, with the right to appeal to this court for final decision after adverse judgment of an inferior court. Clark v. Austin, 340 Mo. 467, 101 S.W.2d 977. (8) Frustrative legislation, as far as the government of this court is concerned, has always been held to be unconstitutional, and there is no justiciable difference between positive and negative frustrative legislation, as the former would prohibit the appointees of this court from appealing to it for final decision or would deny the right of appeal to this court, whereas the latter does not affirmatively give this court's own appointees, under its own rules, the right to appeal to it, and both will be held in the same measure to be of no effect, since under the Constitution of this state, this court is not under the necessity of looking to the Legislature or any other branch of the government of this state for guidance and rules in its own affairs, and as one of the three great branches of state government, it will not be trammelled by the Legislature in either positive or negative frustration. In re Richards, 333 Mo. 907, 63 S.W.2d 672; Clark v. Austin, 340 Mo. 467, 101 S.W.2d 997; and other cases decided herein under previous points. (9) Should this court deem it proper not to amend its Rule 5.11 in this case, so as to permit its own appointees to appeal to it for final review of the action of a lower court filed under its own rules, then this court should suspend or modify the rule in this case upon showing that justice so requires. Rules 1.28, 1.15, of the Rules for the Government of this Court. (10) The rules of this court should not be of a nature to deprive a party of a legal right, such as the right of appeal, regardless of whether any action was presented on the part of the Legislature of this state, but this court should not only not allow any technicality to prevent its consideration of anything reasonably available which goes to the merits of the case on appeal and tends to minimize the number of cases disposed of on procedural questions and to facilitate and increase the disposition of cases on their merits. Rule 1.28 of the rules for the government of this court. State ex rel. Caldwell v. Cockrell, 280 Mo. 269, 217 S.W. 524; Leimer v. Hulse, 352 Mo. 451, 178 S.W.2d 335; State ex rel. v. Withrow, 133 Mo. 500, 34 S.W. 245; State ex rel. v. Withrow, 135 Mo. 376, 36 S.W. 896; Pelz v. Bollinger, 180 Mo. 252, 79 S.W. 146. (11) In a case such as the one at Bar, where abuse of discretion and total misconception on part of trial court of principle of law involved is questioned, this court will examine the whole record to determine questions of abuse of discretion and total misconception of the law involved, especially since the case involves this court's own rules and the government of its own officers. Williams, Tyrrell, on the Source of Authority for Rules of Court Affecting Procedure, Washington University Law Quarterly XXII, p. 459, l.c. 474, 476, 478 et seq.; Clark v. Austin, 340 Mo. 467, 101 S.W.2d 977; In re H S , 165 S.W.2d 300; Ferris on Extraordinary Legal Remedies, sec. 163, p. 186 et seq.; State ex rel. Woodmansee v. Ridge, 343 Mo. 702, 123 S.W.2d 20; State ex rel. St. Louis Union Trust v. Neat, 346 Mo. 86, 139 S.W.2d 958; State ex rel. York v. Locker, 266 Mo. 384, 181 S.W. 19; State ex rel. Cove v. Tincher, 258 Mo. 1, 166 S.W. 1028; State ex rel. Crow v. Vallins, 140 Mo. 523, 41 S.W. 887; Hoopes v. Bradshaw, 231 Pa. 485, 80 A. 1098; In re Phillips, 17 Cal.2d 55, 109 P.2d 344; In re Cate, 273 P. 617; In re Cate, 270 P. 968. (12) An attorney who misappropriates his client's or others' funds by applying them to his own use, is guilty of conduct which is intolerable, and in such cases the only judgment which this court can properly pronounce is that of disbarment. State Bar Committee v. Stumbaugh, 123 S.W.2d 51; In re Block, 136 S.W.2d 358; People...