In re Waugh

• Decision Date: 29 May 1903
• Citation: 72 P. 710,32 Wash. 50
• Parties: In re WAUGH.
• Court: Washington Supreme Court

72 P. 710

32 Wash. 50

In re WAUGH.

Supreme Court of Washington

May 29, 1903

Original proceeding to disbar J. C. Waugh. A demurrer was interposed to the petition. Demurrer sustained.

Fullerton C.J., and Anders, J., dissenting.

T. M Vance, for petitioner.

Smith &amp Brawley and M. P. Hurd, for respondent.

DUNBAR J.

This is a disbarment proceeding, brought originally in this court against the respondent, based substantially upon the following allegations, namely: That at the time James C Waugh applied for admission to the bar of the superior court of Skagit county, state of Washington, to wit, on December 1, 1890, he did not possess the qualifications requisite for admission to the bar, in that he was not a citizen of the United States, nor did he ever study law with an attorney in this state for the time required, nor did he possess a certificate from the Supreme Court of any other state or territory, nor had he ever been admitted to practice law in any other state or territory of the United States; that at the time he secured a certificate of admission to practice law in this state he concealed his disqualification, and thereby committed a fraud upon the court. A demurrer has been interposed to the petition, which raises the question of the jurisdiction of this court to entertain the petition and try the cause.

It is contended by the relator that this court has inherent power to protect itself from fraud, and will exercise summary jurisdiction over its attorneys, who are in a sense officers of the court. The inherent power of a court is an unexpressed quantity and an undefinable term, and courts have indulged in more or less loose explanations concerning it. It must necessarily be that the court has inherent power to preserve its existence and to fully protect itself in the orderly administration of its business. Its inherent power will not carry it beyond this. The case of In re Lambuth, 18 Wash. 478, 51 P. 1071, has been called to our attention as sustaining the contention that this court has jurisdiction in disbarment proceedings; and language was certainly used in that case which would tend to sustain this contention. But, outside of the fact that the disbarment proceeding was entertained by the court, what was said in that case was pure dictum, as the question of jurisdiction was neither discussed nor raised in the trial of the cause, but the cause was tried solely upon the merits; the defendant disavowing any intentions of offense or disrespect, and asking to strike the offensive language from the petition for rehearing which was the subject of the contempt proceedings. In that case, however, the contemptuous act was directed to this court, and the language used had a tendency to bring the court directly into contempt and impair its usefulness, so that in any event the case would not be a case in point here. Ordinarily a court can enforce adequate protection from the wrongful acts of attorneys by imposing upon them the penalties prescribed by the law for a breach of duty due to the court, and if this can be accomplished under the law there is no necessity to resort to inherent power.

But the questions discussed in Re Lambuth, supra, are really not involved in this case. This is not a proceeding for contempt of this court, and it is not necessary to determine in this action whether, in an action against a defendant for such contempt, it would be necessary for the court to go outside of the remedy provided by law and draw on its inherent power to protect its dignity and preserve its usefulness; for the defendant is not charged with contempt of this court, or with any action which would in any way reflect on this court or interfere with the transaction of its business. But he is charged with committing a fraud upon the superior court of Skagit county, the court which, under the provisions of the law then in existence, admitted him to practice; and while, in a limited sense, all courts, in common with society, are affected by the moral plane on which the attorneys of the state stand, the fraud practiced upon this court by gaining admission upon a certificate obtained by fraud is not such an assault on this court, in our opinion, as would warrant it in usurping the jurisdiction of the superior court upon the theory of inherent power. This court is a creature of the law, and, outside of the necessity which we have mentioned above, cannot possess any inherent power to exercise original jurisdiction which is exclusively conferred by law upon another tribunal; and original jurisdiction in this kind of a case is especially conferred upon the superior court by both the fundamental and statutory law, and, while the jurisdiction is not made exclusive in terms, the whole tenor of the section of the article of the Constitution in relation to original jurisdiction plainly indicates that it is the intention to bestow, not only original jurisdiction, but original exclusive jurisdiction, upon the superior court in the cases therein specified.

The same may be said of the statutory, as well as of the constitutional, provision. Section 4 of article 4 of the Constitution provides that the Supreme Court shall have original jurisdiction in habeas corpus and quo warranto and mandamus as to all state officers. The same section provides that the Supreme Court shall have power to issue writs of mandamus, review, prohibition, habeas corpus, certiorari, and all other writs necessary and proper to the complete exercise of its appellate and revisory jurisdiction; and under any well-known rule of construction its original jurisdiction would be confined to the cases specified, and especially construed in connection with section 6 of the same article, which provides that the superior court shall have original jurisdiction in all cases in equity, and in all cases at law which involve the title or possession of real property, and in numerous other cases mentioned, and then provides that it shall have original jurisdiction in such special cases and proceedings as are not otherwise provided for, and that it shall have original jurisdiction in all cases and of all proceedings in which jurisdiction shall not have been by law vested exclusively in some other court. And as was said by this court in State ex rel., etc., v. Superior Court, 15 Wash. 668, 47 P. 31, 37 L. R. A. 111, 55 Am. St. Rep. 907, after quoting the above constitutional provisions: 'It thus appears that the jurisdiction of the Supreme Court and of the superior courts of this state is expressly defined by the Constitution, and reference must therefore be had to that instrument in order to determine the question of jurisdiction in any particular case.' Sections 4650 and 4663 of 2 Ballinger's Ann. Codes & St., enact substantially the provisions of the Constitution above referred to.

Some suggestions have been made that, by reason of the fact that the law confers the power of admission on this court, it necessarily follows that the power to disbar is conferred; but we are unable to see the force of these suggestions, for, outside of the fact that the Legislature would be powerless to confer original jurisdiction in one court when the Constitution vested it exclusively in another, many rights are decreed by courts which may be modified by other courts. Outside of constitutional limitations, the Legislature certainly has a right to prescribe the qualifications of attorneys. It may prescribe one forum to admit under such qualifications and another to disbar for reasons satisfactory to the legislative mind. In that respect, in the absence of constitutional limitation, the legislative will is absolute. But it has not undertaken to interfere with the original jurisdiction conferred by the Constitution on the superior court. It has simply clothed this court with power of admission, and has been content to stop there, properly leaving the jurisdiction in disbarment where it is vested by preceding laws and by the Constitution. Under the provisions of the law passed by the last Legislature, the real determination of the qualifications of applicants for admission to the bar, in case of persons graduating from the Law Department of the State University of Washington, is vested in the faculty and the trustees of that institution; the duty of this court being purely perfunctory, certain general qualifications being shown, showing that in the legislative mind the order of the admission to the bar is not regarded as a strictly judicial...