In re Smith

• Decision Date: 24 February 1925
• Docket Number: 631.
• Citation: 133 Wash. 145,233 P. 288
• Parties: In re SMITH.
• Court: Washington Supreme Court

233 P. 288

133 Wash. 145

In re SMITH.

No. 631.

Supreme Court of Washington, En Banc.

February 24, 1925

Proceeding for disbarment of Elmer S. Smith from practice of law. Board of examiners' recommendation approved, and order of disbarment entered.

Parker J., and Tolman, C.J., dissenting.

John H Dunbar and R. G. Sharpe, both of Olympia, for appellant.

George F. Vanderveer, of Seattle, for respondent.

MACKINTOSH, J.

This is a proceeding for the disbarment of Elmer S. Smith from the practice of law in this state. The substance of the charge against him is that in public addresses since 1919 he has advocated and approved sabotage, syndicalism, and general violation of the law as a means of social reform. The state board of law examiners upon the evidence taken before them have recommended his permanent disbarment, and upon that recommendation the matter is here for determination.

The record abundantly shows that the defendant has both advocated and approved sabotage and criminal syndicalism as a means of accomplishing social and industrial changes in our form of government. In his public addresses of which he has delivered a great number throughout the state, under the auspices of the organization known as the Industrial Workers of the World, the literature of that organization was circulated among his listeners which teaches both sabotage and criminal syndicalism as a means of enforcing industrial changes. The defendant could not be, and the evidence shows that he was not, unaware of the fact that this was done, and there is no reason why he should not be charged with all the responsibility that usually follows an abettor of a criminal act.

This literature is vile. It advocates many serious crimes as the means of carrying out the purposes of the organization, and ways are pointed out how the acts can be accomplished with the least possibility of detection. Subsequently to the passage by the different states of the so-called criminal syndicalism acts, much of this has not been circulated as openly as it was before; but the evidence shows that the organization has not abandoned the doctrines, and any person who advocates such general principles is unworthy of the office of attorney at law.

But, if the foregoing be thought not sufficiently direct to charge the defendant with knowledge and thus with direct responsibility, there are other matters in the record sufficient to sustain the findings of the board of examiners. In this state there are acts directed against the teachings and practices such as are advocated by the organization before named. A number of persons have been convicted and are now in confinement for violating the acts. There are also others, members of the organization, in confinement for more heinous crimes. These the defendant has been pleased to denominate 'political prisoners,' and persons punished because of their opinions, and has in his public addresses advocated a general strike, a strike that 'will paralyze all the industries of the state,' as a means of coercing their liberation. On his admission to practice as an attorney, the defendant took an oath to uphold the laws of the land, and, in our opinion, his conduct in this particular is a violation of that oath.

There is, moreover, in his addresses a more direct incitement to crime than even the foregoing. In one of his addresses he used this language, which was repeated in varying forms in others:

'There are two animals in this world for which I have a profound admiration. One is the lumberjack and the other is a mule. As between the lumberjack and the mule I think more of the mule. Why? Because a mule is a profound animal, and when he is through with his eight hours of work he is through, and when you try to work him more than eight hours you have a battle. How many people ever saw a mule lie down in a fenced in yard where there was a fine haystack and a great big box of oats and starve to death? How many of you ever knew him to pull that? How many ever knew a lumberjack to come into a place where there are millions of tons of food stored away and sleep in the street and go hungry? I am a profound admirer of the mule. I repeat it.'

This means that larceny and theft are justifiable. The thought is further emphasized by later expressions in the address, wherein he tells his listeners that all property is theirs of right, because they have paid for it 'a million times, in sweat and bent backs, in poverty-stricken and hard old age.'

To show that the principles and doctrines of the organization which the defendant advocates are not overstated, a few excerpts from its literature, copies of which are part of the record are here set forth. In a song book of the organization is a song entitled 'Christians at War,' and reads as follows:

'Onward, Christian soldiers, rip and tear and smite!

Let the gentle Jesus bless your dynamite,

Splinter skulls with shrapnel, fertilize the sod,

Folks who do not speak your tongue deserve the curse of God.

Smash the doors of every home, pretty maidens seize;

Use your might and sacred right to treat them as you please.

'Onward, Christian soldiers! Drench the land with gore;

Mercy is a weakness all the gods abhor.

Bayonet the babies, job the mothers too;

Hoist the cross of Calvary to hallow all you do.

File your bullets' noses flat, poison every well,

God decrees your enemies must all go plumb to hell.'

Another, under the title of a once popular song, reads:

'I had a job once threshing wheat, worked sixteen hours with hands and feet,

And when the moon was shining bright, they kept me working all the night.

One moonlight night, I hate to tell, I 'accidentally' slipped and fell,

My pitchfork went right in between some cogwheels of that thresh-machine.

'Chorus:

'Ta-ra-ra-boom-de-ay!

It made a noise that way.

And wheels and bolts and hay

Went flying every way.

That stingy rube said, 'Well,

A thousand gone to hell,'

But I did sleep that night;

I needed it all right.'

'Next day that stingy rube did say, 'I'll bring my eggs to town to-day;

You grease my wagon up, you mutt, and don't forget to screw the nut.'

I greased his wagon all right, but I plumb forgot to screw the nut,

And when he started on that trip, the wheel slipped off and broke his hip.'

Still another, entitled, 'Casey Jones--The Union Scab,' contains this verse: 'The Workers said to Casey: 'Won't you help us win this strike?'

But Casey said: 'Let me alone, you'd better take a hike.'

Then some one put a bunch of railroad ties across the track

And Casey hit the river with an awful crack.'

Concerning sabotage, there is, in a pamphlet entitled 'The New Unionism,' the following:

'Direct action may assume two different forms; either the workers will stop working altogether or they will perform work under conditions detrimental to their employers. In the first case they will strike, in the second they will apply sabotage.

'New Unionist strikes are mere incidents in the class war; they are tests of strength, periodical drills in the course of which the workers train themselves for concerted action. This training is most necessary to prepare the masses for the final 'catastrophe,' the general strike which will complete the expropriation of the employers.

'Besides the strike which is direct action in mass, the workers have at their command an insidious means of individual warfare which, owing to its very nature, entails less important sacrifices on their part, and is at times fully as effective as the strike. We allude to sabotage.

'We may distinguish three forms of sabotage:

'1. Active sabotage which consists in the damaging of goods or machinery.

'2. Open-mouthed sabotage beneficial to the ultimate consumer and which consists in exposing or defeating fraudulent commercial practices.

'3. Obstructionism or passive sabotage which consists in carrying out

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