In re Simpson

• Decision Date: 12 July 1900
• Citation: 83 N.W. 541,9 N.D. 379
• Parties: In re SIMPSON
• Court: North Dakota Supreme Court

83 N.W. 541

9 N.D. 379

In re SIMPSON

Supreme Court of North Dakota

July 12, 1900

An original proceeding for the disbarment of Leslie A. Simpson an attorney at law. The proofs were taken before a referee appointed by the court for the purpose. Upon the evidence reported, the accused was found guilty of conduct unbecoming an attorney and disbarred.

Judgment revoked and canceled.

Newton & Smith, James G. Campbell and J. H. Field, for the accusers.

By Sec 96 Const. only judicial powers can be imposed upon the Supreme Court or any of its judges. Both the admission and the removal of attorneys are judicial acts. Ex parte Secombe 19 How. 9, 60 U.S. 565; Ex parte Garland, 4 Wall. 378, 71 U.S. 370; Randall v. Brigham, 7 Wall. 523, 19 L.Ed. 285-291; Case of Henry W. Cooper, 22 N.Y. 67. Jurisdiction is a power conferred on a court by constitution or statute to take cognizance of the subject matter of a litigation and the parties brought before it, and legally hear, try and determine the issues and render judgment according to the general rules of law upon the issues joined by them, either of law or of fact, or of both. Brown on Jurisdiction, 1. At common law all courts of general jurisdiction had power to suspend or disbar attorneys practicing before them. The authority still exists independent of statute. 6 Enc. Pl. & Pr. 710, note 5. In Professor Dwight's argument, 11 Abbott's Pr., 306-25, abbreviated in Cooper's Case, 22 N.Y. 69, it is contended that at common law the court had no power to appoint an attorney or counselor. See, also, opinion at page 90 where the court says, "Barristers or counselors at law in England were never appointed by the courts of Westminster, but were called to the bar by the inns of court, which were voluntary, unincorporated associations. The power to appoint attorneys as a class of public officers was conferred originally, and has been from time to time regulated and controlled in England by statute." In the United States the subject has been largely controlled by legislative enactment, although courts have sometimes questioned the power of the legislature in the premises. Opinion of Ryan, C. J., In re Goodell, 39 Wis. 232-239. In the absence of a law or custom conferring the privilege upon some other body or official, all courts possess the power inherently, of saying who shall practice as attorneys before them. The power to say who may practice as an attorney carries with it the power to say who may not. 3 Am. & Eng. Enc. L. (2d Ed.) 300, note 5; Brooks v. Fleming, 6 Bax. (Tenn.) 337. Authority to disbar is possessed exclusively by the tribunal authorized to grant licenses admitting to the profession. People v. Green, 7 Col. 244, 1 Am. & Eng. Enc. L. (1st Ed.) 944; Cohan v. Wright, 22 Cal. 293; State v. Kirke, 12 Fla. 278, 95 Am. Dec. 304. The constitution makes no express provision for the bar, but it establishes courts amongst which it distributes all the jurisdiction of all the courts. In re Goodell, 39 Wis. 239, Putnam v. Sweet, 2 Pinn. 302, Const. N.D. Sec. 85. An attorney is an officer of the court in which he practices, he is not in any sense a public officer of the state or of the United States. 3 Am. & Eng. Enc. L. (2d Ed.) 282, notes 1 & 2. The constitution speaks of "the office of attorney at law." Sec. 37 Const. See also his oath, Sec. 423 Rev. Codes, Sec. 211 Const. An attorney's relation to the court is called "his office as an attorney." Sec. 1, Chap. 105, page 146, Laws 1899; Case of Austin, 5 Rawle, 191, 28 Am. Dec. 657-661. His office as an attorney invests him with certain enumerated duties and privileges. Sec. 427-429, Rev. Codes. The admission of an attorney to practice by the court is not the exercise of the power of appointment by the judges mentioned in Sec. 96, Const. Cooper's Case, 22 N.Y. 94. Sec. 86 of the constitution is composed of two parts, the last clause grants a general superintending control over all inferior courts under such regulations and limitations as may be prescribed by law. State v. Johnson, 79 N.W. 1081-1086; State v. Archibald, 5 N.D. 359, 66 N.W. 234. This grant of power is unlimited in extent, indefinite in character, unsupplied with means and instrumentalities. The legislature fixes the qualifications required for admission and also determines by what acts an attorney's privileges shall be forfeited. To the Supreme Court is delegated the execution of the legislative will. Here is a regulation and limitation for the exercise of superintending control over inferior courts. Sections 420 to 426, Rev. Codes. This legislation is justified by § 86, Constitution, wherein general superintending control is given to the Supreme Court over inferior courts. The licensing of persons to practice in the courts of the state, other than the Supreme Court, is a matter fit for the Supreme Court to control. Mandamus will issue to restore an attorney in an inferior court, for the office of an attorney is necessary to the administration of justice and is of public concern. State v. Kirke, 12 Fla. 275, 95 Am. Dec. 314. If, as contended, the constitution and statute vest the Supreme Court with plenary power and jurisdiction in the matter of the admission of attorneys, it follows that this court has power to disbar. In this state only statutory causes for disbarment will be considered upon motion to that end. In re Eaton, 5 N.D. 514. An attorney's license may be revoked for a felony committed by him, or for a misdemeanor involving moral turpitude. Subd. 1, § 433, Rev. Codes. Also for a willful violation of any of the duties of an attorney, or counselor, as prescribed by law. Subd. 3, § 433, Rev. Codes. An attorney who receives money or property of his client's, in the course of his professional business, and who refuses to pay or deliver the same to the person entitled thereto, within a reasonable time after demand, is guilty of a misdemeanor. § 438, Rev. Codes; § 7464, Rev. Codes; § 438, Subd. 3, § 429 and Subd. 6, § 427, Rev. Codes; Stout v. Proctor, 71 Me. 288; Baker v. Commonwealth, 10 Bush. (Ky.) 592; In re Wall, 13 Fed. Rep 814; In re Bowman, 7 Mo.App. 569.

C. E. Gregory, (Ball, Watson & Maclay, of counsel), for accused.

The pending proceeding for the disbarment of the defendant is a special proceeding and involves the exercise by the court of original jurisdiction. If the court is clothed with the power in question, it must be derived either from some provision of the constitution or be attributable to some inherent power residing in a court without reference to constitutional or legislative enactment. Our courts are not clothed with the power and jurisdiction possessed by the courts of England at common law. All their powers, excepting such as are inherent in all courts, are derived from and are wholly dependent on the grant contained in § § 86 and 87 of the state constitution. People v. Circuit Court, 48 N.E. 717; People v. Attorney General, 1 Cal. 85. These two sections provide that the court shall have appellate jurisdiction only, except in certain enumerated cases, and the matter of disbarment of attorneys does not fall within the list of excepted cases. There is nothing in the foundation of the Supreme Court which makes it the censor of the morals of the bar, or the guardian of the safety and dignity of the courts. In view of the grant to this court of appellate jurisdiction only, and of the fact that the offenses set forth in this case as the grounds of disbarment were not offenses committed in the presence of this court; that they concern not at all (unless in the most remote way) its dignity or self respect; do not involve its records or process, and in no manner hinders or obstructs its administration of justice, can it be said that the court has or ought to take jurisdiction. It was the intention of the legislature to preserve the right of appeal in cases of disbarment. § 437, Rev. Codes. It is expressly provided that a judgment of acquittal by the District Court shall be final. A strong implication arises from this provision that it was the intention of the legislature that disbarment proceedings should be initiated and tried in the District Court, excepting only as above stated, where it was necessary for the Supreme Court to exercise the jurisdiction as one of its inherent powers for its own protection. The following cases illustrate how sharply the line between original and appellate jurisdiction is drawn by the courts. State v. Nelson County, 1 N.D. 88; Everett v. Board, 1 S.D. 365; In re Carothers, 52 N.E. 742; Ingraham v. Ingraham, 49 N.E. 320; Massey v. Powell, 43 S.W. 506.

OPINION

YOUNG, J.

This is a disbarment proceeding prosecuted in this court against Leslie A. Simpson to revoke his license as an attorney and counselor-at-law for certain unprofessional acts alleged to have been committed by him in his capacity as an attorney. The proceedings were instituted under section 432. Revised Codes, which authorizes the Supreme Court or any District Court to revoke or suspend the license of an attorney and counselor-at-law to practice in the courts of this state.

The history of the case is as follows: On August 16, 1899, one William Thaw Denniston, an attorney-at-law located in Billings county, filed his affidavit in the office of the clerk of this court charging the accused with the commission of three several offenses which constitute willful violations of his duty as an attorney and counselor-at-law. This affidavit with certain exhibits was served upon the accused under the direction of this court and he was given twenty days after the service thereof in which to file his answer. On October 3, 1899, James G. Campbell and J. H. Field, attorneys located at Dickinson, North Dakota, by leave of court, joined in the Denniston charges, and also filed in...