State Bar of Okl. v. McGhee

• Decision Date: 21 April 1931
• Docket Number: 21206.
• Citation: 298 P. 580,148 Okla. 219,1931 OK 161
• Parties: STATE BAR OF OKLAHOMA et al. v. McGHEE et al.
• Court: Oklahoma Supreme Court

298 P. 580

148 Okla. 219, 1931 OK 161

STATE BAR OF OKLAHOMA et al. v. McGHEE et al.

No. 21206.

Supreme Court of Oklahoma

April 21, 1931

Syllabus by the Court.

Statute empowering board of governors of State Bar to make findings in disbarment proceedings and report same to Supreme Court held not to violate constitutional provision providing for division of governmental powers (Laws 1929, c 264; Const. art. 4, § 1).

Act of the Legislature, contained in the 1929 Session Laws at page 376, commonly called the State Bar Act, empowering the board of governors to institute complaints against attorneys, and to make findings, and report to the Supreme Court, does not violate the provisions of the state Constitution providing for a division of the powers of government into three branches.

Appeal from District Court, Ottawa County; J. J. Smith, Judge.

Petition by A. P. McGhee and another for a writ of prohibition prayed to be directed to the State Bar of 0klahoma and the Board of Governors of the State Bar of Oklahoma and others. From a judgment granting the writ, defendants appeal.

Judgment reversed, and writ of prohibition discharged, with directions.

CLARK V. C.J., dissenting.

D. A Richardson, of Oklahoma City, P. C. Simons, of Enid, and George S. Ramsey, of Tulsa, for plaintiffs in error.

D. H Cotten, George T. Webster, and M. W. Hinch, all of Miami, for defendants in error.

KORNEGAY J.

This is a petition in error brought by the board of governors of the State Bar of Oklahoma, and the State Bar of Oklahoma, from a decision of the district court of Ottawa county, the judge being the Honorable J. J. Smith. The matter comes here by transcript. The petition for the writ of prohibition is found beginning on page 4 of the case-made, and is as follows:

Petition for Writ of Prohibition.

"Comes your petitioners, Q. P. McGhee, and Frank R. Burns, and respectfully represent and show to the court;

"That your petitioners, and each of them, are regularly licensed and practicing attorneys at law in the Supreme Court and all inferior courts of the state of Oklahoma, and are residents of Miami, Ottawa county, Oklahoma;

"Your petitioners further show that the constitution of the state of Oklahoma has created three separate departments of State Government, to-wit: Legislative, Executive and Judicial, and that sections one and two of Article seven of the Constitution of the State of Oklahoma, provide as follows:

"'Section 1. Courts of the State. The judicial power of this state shall be vested in the Senate, sitting as a court of impeachment, a Supreme Court, District Courts, County Courts, Courts of Justices of the Peace, Municipal Courts, and such other courts, commissions or boards, inferior to the Supreme Court, as may be established by law.'

"'Section 2. Jurisdiction of Supreme Court. The appellate jurisdiction of the Supreme Court shall be coextensive with the State, and shall extend to all civil cases at law and in equity, and to all criminal cases until a Criminal Court of Appeals with exclusive appellate jurisdiction in criminal cases shall be established by law. The original jurisdiction of the Supreme Court shall extend to a general superintending control over all inferior courts and all commissions and boards created by law. The Supreme Court shall have power to issue writs of Habeas Corpus, mandamus, quo warranto, certiorari, prohibition, and such other remedial writs, as may be provided by law, and to hear and determine the same; and the Supreme Court may exercise such other and further jurisdiction as may be conferred upon it by law. Each of the Justices shall have power to issue writs of habeas corpus to any part of the State upon petition by or on behalf of any person held in actual custody, and make such writs returnable before himself, or before the Supreme Court, or before any District Court, or Judge thereof, in the State.'

"That Section ten of Article seven of the Constitution of the State of Oklahoma relating to the jurisdiction of the District Court provides as follows:

"'Jurisdiction of district courts. The District Courts shall have original jurisdiction in all cases, civil and criminal, except where exclusive jurisdiction is by this Constitution, or by law, conferred on some other court, and such appellate jurisdiction as may be provided in this Constitution, or by law. The District Courts, or any judge thereof shall have power to issue writs of habeas corpus, mandamus, injunction, quo warranto, certiorari, prohibition, and other writs, remedial or otherwise, necessary or proper to carry into effect their orders, judgments, or decrees. The District Courts shall also have the power of naturalization in accordance with the laws of the United States.'

"Your petitioners further show to the court that the Twelfth (12) Legislature of the State of Oklahoma enacted a purported law, known as The State Bar Act, effective June 22nd, 1929. Section 26 of said act provides as follows:

"'Sec. 26. Disbarment, etc. The Board of Governors shall have power, after a hearing, for any of the causes now existing in the laws of the State of Oklahoma, or hereafter prescribed by rules adopted in pursuance of this Act, warranting disbarment or suspension, to disbar members or to discipline them by reproval, public or private, or by suspension from practice, and the board shall have power to pass upon all petitions for reinstatement. The Board of Governors shall keep a transcript of the evidence and proceedings in all matters involving disbarment or suspension and shall make findings of fact and a decision thereon. Upon the making of any decision to disbar or suspend any attorney from practice the board shall immediately file a certified copy of said decision, together with said transcript and findings, with the clerk of the Supreme Court. Any person so disbarred, or suspended may within sixty days after the filing of said certified copy of said decision petition said Supreme Court to review said decision or to reverse or modify the same and upon such review the burden shall be upon the petitioner to show wherein such decision is erroneous or unlawful. When sixty days shall have elapsed after the filing of said certified copy, if no petition for review shall have been filed, the Supreme Court shall make its order, striking the name of such person from the roll of attorneys or suspending him for a period mentioned in said decision. If, upon review, the decision of said Board of Governors be affirmed, then said court shall forthwith make said order, striking the said name from the rolls or of suspension. The Board shall have power to appoint one or more committees to take evidence and make findings on behalf of the Board and forward the same to the Board. The powers herein conferred are in addition to the powers to disbar or discipline members of the bar as now held and exercised by the courts.'

"All other sections and portions of said act are herein made a part of this petition by reference to the same as though fully set forth herein.

"Your petitioners further represent and show to the court that by virtue of and pursuant to the provisions of the State Bar Act an accusation has been filed against them jointly before the Board of Governors of the State Bar of Oklahoma, entitled: 'In the Matter of Q. P. McGhee and Frank R. Burns, Attorneys at law,' in a disbarment proceeding, which said accusation is in words and figures as follows, to-wit:

"'The State of Oklahoma

"'Before the Board of Governors of the State Bar of Oklahoma

"'In the Matter of Q. P. MeGbee and Frank R. Burns, Attorneys at Law. Number one.

"'Accusation.

"'The Board of Governors of the State of Oklahoma charges:

"'That on the 23rd day of October, A. D., 1927, Q. P. McGhee and Frank R. Burns, then and there being duly admitted to the practice of law in the State of Oklahoma, by the Supreme Court of said State, and on said date members of the bar of the State of Oklahoma, being now members of the State Bar of Oklahoma, were convicted in the District Court of Craig County, State of Oklahoma, in a cause in said court pending, entitled State of Oklahoma v. Jeff D. Sexton, Q. P. McGhee and Frank R. Burns, of a felony under the laws of the State of Oklahoma, to-wit: of harboring, aiding and assisting a person guilty of a felony;

"'Thereby subjecting themselves to suspension or disbarment from the practice of law in the State of Oklahoma.

"'Dated this 21st day of December, 1929.

"'Board of Governors of the State Bar of Oklahoma.

"'A. W. Rigsby, Its Examiner.'

"'State of Oklahoma County of Oklahoma, ss.

"'A. W. Rigsby, being sworn, says that the facts set forth in the foregoing are true, except facts said to be on information, or belief, which facts affiant is informed are and verily believes to be true.

"'A. W. Rigsby

"'Subscribed and sworn to before me this 23rd day of December, 1929.

"'My Commission Expires 2/20/33 [Seal.]

"'Earl Sadler, Notary Public.'

"Petitioners state that pursuant to said accusation citation was served upon the said Q. P. McGhee and Frank R. Burns and that said matter is set for hearing at Miami, Oklahoma, on the 24th day of January, 1930, before defendants: Edgar A. deMueles, Grover C. Spillers and Charles A. Dixon, members of the Board of Governors, setting as trial judges.

"Your petitioners further show to the court that all matters concerning the admission to practice law and disbarment of attorneys are inherent powers of the Supreme Court of the State of Oklahoma, and further show to the court that Section 26 of the State Bar Act is null and void and unconstitutional for the reason that it is an encroachment and infringment upon the powers of the judicial branch of

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