In re Steen

Decision Date13 April 1931
Docket Number29417,29416,29418-29420
CourtMississippi Supreme Court
PartiesIN RE STEEN IN RE WALKER. IN RE MARSHALL. IN RE FRANKLIN. IN RE HOWIE

Separate original disbarment proceedings against one Steen against J. C. Walker, against Carl Marshall, against L. C Franklin, and against J. H. Howie, attorneys at law. On motion in each case to dismiss the proceedings or to transfer the proceedings to a court of original jurisdiction of the county of the respondent's residence. Motion to dismiss each case and in the alternative to transfer overruled.

Motion dismiss and in alternative transfer overruled.

T. N Gore, of Marks, J. T. Brown, Franklin, Easterling & Rosenthal, and Louis C. Hallam, all of Jackson, and Carl Marshall, of Gulfport, for respondents.

The statutes of the state governing venue and change of venue in proceedings, not local, against individual citizens, should apply to these proceedings, and the proceedings should be dismissed or transferred for trial in the proper nisi prius courts.

When the Brown case was decided in 1836, and always before then, the sole function of admitting attorneys to practice was vested in the Supreme Court of the state. The function of licensing attorneys by admitting them into the practice being vested exclusively in the Supreme Court, it necessarily followed, and the authorities are still unbrokenly to that effect, that no court inferior to it could revoke or annul the license by disbarment, unless power to do so be specifically conferred by statute.

6 C. J., section 38, page 582.

The functions of admitting lawyers to practice, disbarring lawyers from practice, and reinstating lawyers upon reformation following disbarment, were vested exclusively in the Supreme Court of the state at the time the Brown case was decided.

The bar and all courts of the state have since the decision in the Brown case held to the legitimate constitutional function of the Supreme Court as one of appellate jurisdiction only; and this fully explains why the Brown case has been relegated to the archive of legal history, with no further practical value, for virtually a century. The first reported disbarment case in Mississippi after the Brown case was tried in the circuit court of Jasper county and the judgment of disbarment was reversed by the Supreme Court of 1843, because citation was not served upon the respondent in the court below.

Ex parte Heyfron, 7 How. 127.

The statutory function of admitting attorneys to practice, disbarring and reinstating them long since having been taken by statute from the Supreme Court, since the decision in the Brown case this court has always jealously guarded the conception that it is a court of appellate jurisdiction only.

The Supreme Court shall have such jurisdiction as properly belongs to a court of appeals.

Planters Insurance Company v. Cramer, 47 Miss. 200; Brown v. Carraway, 47 Miss. 668; Y. & M. V. R. R. Co. v. Wallace, 90 Miss. 609, 43 So. 469, 122 Am. St. 321; Section 146 of the Constitution of 1890; Wynne v. I. C. R. C. Co., 108 Miss. 376, 66 So. 410; I. C. R. R. Co. v. Dodd, 105 Miss. 23, 61 So. 743, 49 L. R. A. (N. S.) 565; Brown v. Sutton, 121 So. 835, 837; Miss. Chancery Practice, Griffith, 782, 783.

The legislative policy, adopted after the decision in the Brown case, that the Supreme Court shall exercise its constitutional function as an appellate court only, without original jurisdiction in any cause whatsoever, is manifested beyond question.

Section 3361 of the Code of 1930; Section 3376 of the Code of 1930; Section 3377 of the Code of 1930.

It is probable that the petitioners will invoke the provisions of section 3703 of Code of 1930, apparently granting original jurisdiction of disbarment proceedings to any court in which he (the attorney) may practice. But assuredly the legislature cannot be held to have intended that the statute should be literally construed; and to construe it now as attempted to vest original jurisdiction in the Supreme Court in cases of the type at bar will make the statute repugnant to the provisions of section 146 of the State Constitution of 1890.

In our exhaustive research into the authorities, we have discovered no decision in which an appellate court held that without discretionary power it was obligated to entertain original disbarment proceedings, when no statute peremptorily or exclusively fixed original jurisdiction in the appellate court; and this is true notwithstanding the involvement in the proceedings of matters that constitute contempts of court.

People ex rel. Thomas v. Berry (Colo.), 29 P. 904; In re Martin C. Freeks, 11 N.D. 120; In re Waugh, 32 Wash. 50, 72 P. 710; In re Mielke, 120 Wis. 501.

The rule that Mississippi obviously is committed to in this regard, it being the only safe and proper rule, it is submitted, is announced in the following language in 2 R. C. L., Attorneys at Law, section 201, page 1109.

In the trial of a proceeding for disbarment of an attorney, the judge, being the arbiter of both the law and the facts, should not delegate the taking of evidence therein to a master, commissioner, or any one else, but should personally hear the evidence of the witnesses for and against the accused, so that in lending or withholding credence to it he may be governed by the same rules and reasons that influence juries when sitting as triers of facts from an observance of the manner and deportment of the witness.

In the matter of the disbarment of J. A. Smith, 73 Kans. 243, 85 P. 584; In re Duncan, 42 S.E. 433; Griffith on Mississippi Chancery Practice, chapter 38, pages 669, and 670.

No sound reason that can be imagined can be urged against applying the same rules governing venue, and change of venue, to disbarment proceedings as those that are applied to other suits, not local, against the resident citizen of the state; and to hold otherwise would be tantamount to ruling that a lawyer, because he is a lawyer, is not entitled to the protection accorded the lowliest citizen of the land.

State v. Clarke, 46 Iowa 155; Slemmer v. Wright, 46 Iowa 705; Section 495 of the Mississippi Code of 1930.

Jeff Truly, of Fayette, J. H. Currie, of Meridian, W. S. Welch, of Laurel, W. C. Sweat, of Corinth, L. A. Smith, Sr., of Holly Springs, and Louis M. Jiggitts, of Jackson, for Committee on Petitions for Disbarment.

That the supreme court of the state of Mississippi has jurisdiction to hear and determine petitions to disbar attorneys who practice in the supreme court of Mississippi has been fundamentally adjudicated. The question of jurisdiction has been squarely presented to this court and jurisdiction has been absolutely and completely assumed.

Ex parte Brown, 1 Howard 303.

The case of Ex parte Brown, supra, has never been repealed, modified or even questioned by this court. The law pronounced in said case has been the law in this state governing the jurisdiction of the supreme court in disbarment proceedings for nearly a century and the legislature has at no time attempted in any manner or form to repeal it, or to limit the jurisdiction of the supreme court. The various constitutions have merely carried forward the provision as to jurisdiction of the supreme court then existing.

It is without doubt that in Mississippi the supreme court has original jurisdiction in disbarment proceedings. In all other jurisdictions within the United States where there have been no constitutional prohibitions the supreme courts have assumed original jurisdiction in disbarment proceedings.

6 C. J., page 580, section 37; 582 of 6 C. J.; Smith v. State (Tenn.), 1 Yerg. 228, 230; Re L. L. Mosher, 24 L. R. A. (N. S.) 530, 102 P. 705; Re J. W. Robinson, 15 L. R. A. (N. S.) 525, 92 P. 929; Re David Evans et al., 53 L. R. A. 952, 22 Utah 366; Ex parte J. B. Wall, 27 L.Ed. 552; In re Tyler, 78 Cal. 307; People ex rel. Elliott v. Green, 7 Colo. 237, 3 P. 65; In re Badger, 4 Ida. 66; Sanborn v. Kimball, 64 Maine 140; In re Breen, 30 Nev. 164; State Bar Commission, ex rel. Williams v. Sullivan, 35 Okla. 745; In re Simpson, 9 N. Dakota, 379; In re Mosher, 102 P. 705; People ex rel. Chicago Bar Association v. Berezniak, 127 N.E. 36; In re Macey, 196 P. 1095; In re Olsen, 198 P. 742; State ex rel. Young et al. v. Edmondson, 204 P. 619; State ex rel. Grievance Committee of Oregon Bar Association et al. v. Woerendle, 209 P. 604, 220 P. 744; In re Gorsuch, 214 P. 794; In re Sizer, 254 Sizer, 254 S.W. 82; People ex rel. Chicago Bar Association v. Hanson, 147 N.E. 431; Section 765, page 1176 of Volume 2 of Thornton on Attorneys at Law; Section 767, page 1177 of Thornton on Attorneys at Law; Chapter 29, Thornton on Attorneys at Law, Volume 2; Section 80, page 140, Weeks on Attorneys and Counselors at Law.

Every court of record has inherent power to discipline its officers and consequently to disbar attorneys admitted to practice before it. This is fundamental law; Ex parte Robinson, 22 L.Ed. 205; Bradley v. Fisher, 20 L.Ed. 646; 2 R. C. L., page 1086, section 179; Re Max Waldo Cohen, 55 A. L. R. 1309; Re Ole A. Stolen, 55 A. L. R. 1355, 193 Wis. 602, 214 N.W. 379; Re F. H. Reily, 7 A. R. L. 89; Re Carl Lentz, 50 L. R. A. 415; People v. McCabe, 19 L. R. A. 231; In re David Evans, 22 Utah 366, 53 L. R. A. 952; Ex parte David A. Secombe, 15 L.Ed. 565; Ex parte Burr, 9 W. 529, 6 L.Ed. 168; Ex parte Cashin, 90 So. 850.

Argued orally by Carl Marshall, and Lamar F. Easterling, for motion, and by J. H. Currie, against motion.

Griffith, J., Smith, C. J., and Cook, Anderson, and McGowen, JJ., concur in the opinion. Ethridge, J., dissenting.

OPINION

Griffith, J.

Acting under a resolution adopted by the State Bar Association, a special committee of that association has instituted in this court a...

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