In re Sizer
| Decision Date | 14 August 1923 |
| Citation | 254 S.W. 82,300 Mo. 369 |
| Parties | In re F. P. SIZER and H. A. GARDNER |
| Court | Missouri Supreme Court |
Motion to dismiss overruled.
Frank W. McAllister, A. L. McCawley and John T. Sturgis for movents.
(1) The various courts of this State are created by our Constitution and the jurisdiction of each court is derived from and fixed by such Constitution. No court has power to exercise jurisdiction (inherent or otherwise), nor can the Legislature confer jurisdiction on any court in contravention of the terms of the Constitution. Where jurisdiction is limited or forbidden by the Constitution, the Legislature is powerless to confer such jurisdiction. In re Waugh, 72 P. 710; 11 Cyc. 661-B; Windsor v. Bridges, 64 P. 781; State ex rel. v. Nast, 209 Mo. 721; State ex rel. v. Ryan, 182 Mo. 355. (2) The Supreme Court is one of the courts created by the Constitution and whose jurisdiction is defined and limited thereby. Its jurisdiction and the limitation thereof is contained in Section 2, Article VI, of the Constitution. (3) Its jurisdiction is therefore expressly limited to such as is appellate, and all original jurisdiction is prohibited except such as is otherwise expressly directed by such Constitution. Section 3, Article VI, makes the exception to the appellate jurisdiction, and confers certain definite original jurisdiction, to-wit, to exercise a general superintending control of inferior courts and to issue, hear and determine certain original remedial writs therein specified. There are certain other exceptions to the jurisdiction of the Supreme Court being appellate only, in other clauses of the Constitution, but same are not in anywise involved here. The Legislature is powerless to enlarge or curtail such original jurisdiction, and any statute attempting to do so is void. 11 Cyc. 706; Foster v. State, 41 Mo. 62; Vail v. Dinning, 44 Mo 210; State ex rel. v. Flentge, 49 Mo. 488; State ex rel. v. Miles, 210 Mo. 184; State ex inf. v. Towns 153 Mo. 110; Wait v. Railroad, 204 Mo. 504; In re Letcher, 269 Mo. 150; State ex rel. v Locker, 266 Mo. 389; State ex rel. v. Tincher, 258 Mo. 15; Ex parte Bethurum, 66 Mo. 553; State ex rel v. Harty, 275 Mo. 59. (4) The right to practice law is a valuable property right. No person can be deprived of such right except by due process of law, which includes proper notice, a right to be heard in defense, and a trial of the facts. No one can claim that a disbarment proceeding is an exercise of appellate jurisdiction, or a supervisory jurisdiction over inferior courts. Nor is it an original remedial writ of which the Supreme Court is given jurisdiction. It is merely a judicial proceeding involving private rights on complaint of a private individual on ordinary notice and involving a large number of issues of fact and the taking of much evidence. In such a proceeding, the Supreme Court has no original jurisdiction. 2 R. C. L. sec. 196, p. 1103; State ex rel. v. McElhinny, 241 Mo. 606; Fish v. Printing Co., 102 Mo.App. 24; Ex parte Garland, 4 Wall. 333, 18 Law. Ed. 366; Bradley v. Fish, 13 Wall. 335, 20 Law Ed. 652. (5) What is termed the inherent power of courts to disbar attorneys, at least for matters not occurring in the presence of the court or in connection with some proceeding in that court, does not mean that such power may not be forbidden to one court, especially an appellate court, and vested solely in other courts. It does not mean that a court cannot be created without such power and jurisdiction. Courts of superior or general jurisdiction have the inherent power to disbar attorneys in the sense that such power does not require any express constitutional or statutory provision granting the same, as such power will be inferred unless expressly or impliedly forbidden. Such power is not inherent in even superior courts in the sense that courts cannot be created without such power or that the courtmaking power, whether the Constitution or statute, cannot deprive such court of such power. This is especially true where, in the division of jurisdiction, such power and jurisdiction is vested in other courts. 2 R. C. L. sec. 179, p. 1086; State v. Ebbs, 150 N.C. 44, 19 L. R. A. (N. S.) 892; In re Saddler, 130 P. 906, 44 L. R. A. (N. S.) 1195; Fairfield Bar Assn. v. Taylor, 13 L. R. A. 767; In re Applications to Practice Law, 143 N.C. 1, 10 L. R. A. (N. S.) 293; Danforth v. Eagan, 139 St. Rep. 1030; Kane v. Haywood, 66 N.C. 1; State v. Foreman, 3 Mo. 602; State ex rel. v. Laughlin, 73 Mo. 443; State ex rel. v. Peabody, 63 Mo.App. 380; Editorial Note, In re Philbrook, 45 Am. St. 72. (6) The power to disbar attorneys is sometimes said to be inherent in courts possessing the power to punish for contempt, and that these two powers rest on the same basis. There are, however, in several respects, marked distinctions between the power to disbar attorneys and the power to punish for contempt. Even the power to punish for direct or criminal contempt is not inherent in courts as such, in the sense that a court cannot exist without such power, or that the Constitution creating a court could not exclude such power from one court or classes of courts and vest it in another, or even forbid its exercise altogether, leaving such acts to be punished by regular criminal procedure. These differences between contempt and statutory disbarments are noted in: 9 Cyc. 30, 32; State ex rel. v. Ryan, 182 Mo. 355; State ex rel. v. Campbell, 25 Mo.App. 640; State ex rel. v. Dillon, 96 Mo. 62; Rapalge on Contempts, sec. 13. The idea of punishment, so prominent in contempt proceedings, has no appropriate place in statutory disbarment and the action is an ordinary civil proceeding. 2 R. C. L. p. 1088, sec. 188, and note 2; In re Philbrook, 45 Am. St. 72. Courts in this State which evidently have power to punish for contempt do not have the power to disbar attorneys. State ex rel. v. Laughlin, 73 Mo. 443. (7) The prosecution will doubtless rely on the cases of State ex rel. v. Mullins, 129 Mo. 237; State ex rel. v. Harber, 129 Mo. 293; State ex rel. v. Reynolds, 252 Mo. 369 (Selleck's Case), and perhaps Jones v. Sanderson, 229 S.W. 1087, though not discussing this question. The Mullins and Harber cases arose from the mutilation and falsifying of the record of a criminal case pending in the Supreme Court on appeal. Those cases were merely collateral to a case of which this court had appellate jurisdiction. They were, in substance, contempt cases, having to do with the orderly procedure of this court and dealing with acts tending to obstruct justice therein. Selleck's Case had to do with the jurisdiction of the St. Louis Court of Appeals, whose original jurisdiction is not expressly limited by the Constitution as is that of the Supreme Court. This court followed the Harber Case without noting the widely different state of the basic facts. In these cases, the Supreme Court discussed only the power of the Legislature to limit the jurisdiction of the Supreme Court, and does not seem to have considered that this is not a question of the power of the Legislature over the jurisdiction of the Supreme Court, but is a question of the limitation of such jurisdiction by the Constitution itself. The distinction is that where a court is created by the Constitution and given certain express or implied powers the Legislature cannot take the same away or limit it, but the Constitution, in creating the court, has full power to define and limit its jurisdiction. There can be no inherent power to do what the Constitution forbids.
J. P. McCammon, C. F. Wescoat, A. T. Dumm and Geo. H. English for petitioners.
(1) This court possesses inherent power and jurisdiction to disbar attorneys from the practice of law for the commissions of acts in violation of their duty as attorneys. State ex rel. v. Reynolds, 252 Mo. 369; State ex rel. v. Mullins, 129 Mo. 236; State ex rel. v. Harber, 129 Mo. 271; State ex rel. Jones v. Laughlin, 73 Mo. 446; In re Gorsuch, 214 P. 794. (2) The people of Missouri have, by the adoption of successive constitutions containing identically the same provisions as to the powers of the Supreme Court, which powers have for more than a century been construed to embrace the jurisdiction to disbar attorneys for offenses, conferred constitutional jurisdiction upon this court to that end. Laws of Territory of La. 1804, sec. 4; Constitution of 1820, Article V; Laws of 1824, "Attorneys," secs. 2-6; Constitution 1845, 1855 and 1865; State v. Foreman, 3 Mo. 602; Strother v. State, 1 Mo. 605; State v. Watkins, 3 Mo. 480; Sanders v. Anchor Line, 97 Mo. 26, 6 R. C. L. 54.
OPINION
In Banc
Disbarment Proceeding.
-- This is an original proceeding instituted in this court having for its object the disbarment of F. P. Sizer and H. A. Gardner, of Monett, Missouri, from practicing law in the courts of this State. The petition is signed by A. L. Cooper of the Kansas City Bar and J. P. McCammon of Springfield, Missouri.
The present hearing is limited to the motion to dismiss the cause because of the lack of jurisdiction of this court to try it. It reads (formal parts omitted):
"Now come F. P. Sizer and H. A. Gardner and move the court to dismiss this proceeding, for the reason that this court is without jurisdiction to hear or determine the same." Counsel for defendants have made a reasonably fair summary of the petition filed against them, which is as follows:
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