In re Hahn

• Decision Date: 28 January 1916
• Citation: 85 N.J.Eq. 510,96 A. 589
• Parties: In re HAHN.
• Court: New Jersey Supreme Court

96 A. 589

85 N.J.Eq. 510

In re HAHN.

Court of Errors and Appeals of New Jersey.

Jan. 28, 1916.

Trenchard, Garrison, Black, White, terhune, and Heppenheimer, JJ., dissenting.

Disbarment proceedings against Simon Hahn, a solicitor of the Court of Chancery of New Jersey. There was a decree of disbarment ordered (94 Atl. 953), and Simon Halm appeals. Motion to dismiss appeal denied.

The order appealed from is entitled as above. By its terms it required the appellant to show cause why he should not be adjudged guilty of malpractice as a solicitor or counselor, or be suspended from practice as such or otherwise disciplined and punished for his misconduct, as might be decreed equitable and just. The Court of Chancery adjudged that he was guilty of malpractice and that for his gross misbehavior in his office of solicitor in chancery, he should be debarred from practice as solicitor and counselor therein. From this order, the solicitor appealed.

Nelson B. Gaskill, of Trenton, for the motion. Robert H. McCarter, of Newark, and George W. C. McCarter, of Newark, opposed.

SWAYZE, J. (after stating the facts as above). The proceedings are not in the nature of proceedings for contempt of court, nor mere disciplinary proceedings. The distinction between proceedings to punish for contempt and proceedings to disbar is sufficiently shown by the decision of the United States Supreme Court in Ex, parte Bradley, 7 Wall. 364, 19 L. Ed. 214, and In re Robinson, 19 Wall. 505, 22 L. Ed. 205. We have no doubt that the Chancellor has the same power to proceed against an attorney for contempt as against any other person, and that he has the additional power to suspend a solicitor or counselor from appearing in the Court of Chancery, provided he does not go as far as to infringe upon the powers possessed by the Supreme Court at the time of the adoption of the Constitution of 1844. This would include power to suspend until the facts could be presented to the Supreme Court for more severe action. Whether an appeal will lie from an order punishing for contempt or even suspending a solicitor for a limited time as an act of mere discipline is not the question now before us. This order "debars" Mr. Hahn from appearing hereafter in the Court of Chancery as a solicitor or counselor, and prohibits him from exercising any of the functions, rights, or privileges of a solicitor or counselor of that court. We do not know whether the selection of the unusual word "debar" was merely accidental or whether it was chosen advisedly in an effort to distinguish the order from the well-known and long-continued procedure of the Supreme Court not hitherto departed from in the whole history of New Jersey's jurisprudence, except perhaps in a single sporadic case to be mentioned hereafter. That procedure was commonly known as a procedure to disbar. As neither "disbar" nor "debar" accurately expresses the result in technical terms, the mere question of words is not important. Nor do we attribute any significance to the fact that the proceeding was by its title directed against Mr. Hahn as a solicitor only, and was for malpractice as a solicitor while the order affects him as a counselor also. The fact that he is prohibited from exercising his rights as a "counselor of this court" is, as will be shown, of more importance. We deal with the substance rather than the form of the order. In substance it has the same effect, if valid, as far as the Court of Chancery is concerned, as striking the appellant's name off the roll would have, and the real question now before us is whether an appeal will lie from an order of the Court of Chancery having that effect.

There is some divergence in the cases as to whether an appeal will lie in such a case where the lower court has jurisdiction. It turns sometimes upon a mere question of procedure, and sometimes upon the statutes of the state. Our statute, dating from 1799 (Paterson's Laws, p. 434, § 59), enacts that all persons aggrieved by any order or decree of the Court of Chancery may appeal from the same or any part thereof to the Court of Errors and Appeals. C. S. 450, § 111. On the face of it, we think that a man is aggrieved by an order that deprives him of one office, that of solicitor, and prevents him from exercising to the full extent another office, that of counselor. We need not go so far as the Supreme Court of Connecticut and hold that the office of solicitor or counselor can fairly be regarded as property. In re O'Brien's Petition, 79 Conn. 46, 63 Atl. 777, 780. It is enough to say that one holding such an office is as much aggrieved and entitled to appeal to the courts for protection in its enjoyment as a public officer or the officer of a private corporation is by means of quo warranto, mandamus, or certiorari, with an ultimate appeal to this court. The right of appeal by attorneys from orders of disbarment is well settled by the decision of tribunals of the first authority. In Ex parte Bradley, 7 Wall. 364, 19 L. Ed. 214, a mandamus was issued to restore an attorney and counselor to his office from which he had been removed by an inferior tribunal. Mr. Justice Miller dissented from this judgment of the court, but did not question that a state appellate tribunal might entertain an appeal; his argument was that the Supreme Court of the United States possessed no such general supervisory power over inferior federal courts as belongs to the King's Bench and the appellate tribunals of the states. The jurisdiction of the last-named tribunals to review has been exercised in repeated instances. It is enough to cite In re Durant, 80 Conn. 140, 67 Atl. 497, 10 Ann. Cas. 539; Matter of Eldridge, 82 N. Y. 161, 37 Am. Rep. 558. The report of the former case in 10 Ann. Cas. 539, is accompanied by a note citing cases in which the appellate jurisdiction has been exercised; in some the facts have been reviewed, and in others the legal errors only. Bar Association v. Greenhood, 168 Mass. 169, 46 N. E. 568. In the last-cited case, the language of the statute was similar to that of our Chancery Act above quoted. In England, also, an appeal is allowed from an order striking a solicitor off the roll. In re Hardwick, L. R. 12 Q. B. D. 148, 53 L. J. Q. B. 64.

Whatever doubt there may be as to the right of appeal from a mere disciplinary order, there can be no doubt as to the appealability of such an order as this if the Court of Chancery was without jurisdiction to make it, since if this court cannot restrain the excess of jurisdiction, no court can, and the usurpation of power, if there is any, would go uncorrected. The Supreme Court could not act by mandamus as the United States Supreme Court acted in the Bradley Case, because the Court of Chancery is one of co-ordinate jurisdiction. Only this court can act, and that by way of appeal. The stress of the argument at bar was upon the question whether the Court of Chancery had jurisdiction. This question we proceed to consider.

Our method of licensing counselors, attorneys, and solicitors is peculiar. Prom the very beginning of the province of New Jersey in the time of Lord Cornbury and probably in East Jersey at least from the time of Governor Basse in 1698 (Learning & Spicer's Laws, p. 223, subd. XI), attorneys and counselors have been licensed by the Governor under the great seal of the state. The Supreme Court never has licensed them nor admitted them to practice. In re Branch, 70 N. J. Law, 568, 570, 571, 57 Atl. 431. There has never been a suggestion that the Court of Chancery has licensed solicitors to practice in that court. A careful distinction has been preserved in that court between masters and solicitors. Beginning with 1817 at least, the rules of the Court of Chancery have provided for the oaths of masters, but not for the oaths of solicitors, no doubt because solicitors who were licensed by the Governor were sworn in the Supreme Court, and there were no solicitors licensed by the Chancellor as Chancellor. After the new Constitution of 1844, there seems to have been some doubt of the power of the Chancellor to appoint masters, and in 1845 the Legislature enacted that the power should continue in the Chancellor. P. L. 1845, p. 161. This was confirmed in 1846 (P. L. 1846, p. 188). The act now appears in the Compiled Statutes (C. S. 3785, § 8). A claim by the Chancellor to appoint or remove solicitors is inconsistent with the language of the Governor's commission. See 70 N. J. Law, 570, 57 Atl. 431. The mandate of the Governor under the great seal, attested by the secretary of state, is addressed to the Court of Chancery as well as to the Supreme Court and all the courts of record within the state. In 1748 the colonial Legislature enacted a fee bill (1 Nevill's Laws, p. 338; Allinson's Laws, p. 160) which gave the Governor a fee of 20 shillings for licensing an attorney, and the Supreme Court a fee of 18 shillings for "admitting" every attorney, and those provisions, in substance, have remained on the statute books. No mention was made of any license to a solicitor until the act of 1799 (Paterson's Laws, p. 418) which gives the Governor a fee of $3 for a "license to an attorney and solicitor," and the judges of the Supreme Court a like fee in the same language. The language is repeated in the Revision of 1877, and is to be found in the Compiled Statutes of 1910. C. S. 2278, 2281. The facts that attorney and solicitor were coupled, that a fee was allowed the Governor, and a like fee for the same service to the Justices of the Supreme Court, are significant enough; the importance is emphasized by the fact that although the Chancellor was then paid by fees and his fee bill was for the first time as far as appears, provided for by the very same act of 1799, no mention is made of any fee to him for licensing a solicitor. Governor Paterson had himself been Governor and Chancellor and was not likely to overlook any of the Chancellor's rights when he was for the first time...