State ex rel. McAllister v. Sanderson
| Decision Date | 22 December 1919 |
| Citation | 217 S.W. 60,280 Mo. 258 |
| Parties | THE STATE ex rel. FRANK W. McALLISTER, Attorney-General, v. JUDSON SANDERSON |
| Court | Missouri Supreme Court |
Demurrer sustained.
Frank W. McAllister, Attorney-General, S. E. Skelley and John T Gose, Assistant Attorneys-General, for relator.
Charles W. German of counsel.
(1) Is respondent entitled to practice pending determination of his appeal?There are at least three cases in this country directly determinative of this question: Walls v Palmer,64 Ind. 493;Tyler v. Presley,72 Cal 290;McMath v. Manns Bros. Boot & Shoe Co., 12 Ky. L. 952, 15 S.W. 879.The decision of the Indiana Court(Walls v. Palmer) was directly approved by this court in the case of State ex rel. v. Woodson,128 Mo. 497.This doctrine has not only never been questioned by this court since the decision in the Woodson case, but has been repeatedly approved.Ex parte Craig, 130 Mo. 593;State ex rel. v. Hirzel,137 Mo. 451.(2) The effect of an appeal is not to set aside, or to make inoperative the judgment appealed from, but merely to review the action of the trial court.The granting of an appeal cannot give to the appellant the right to do something which the judgment or decree forbade him to do.Burgess v. Hitt,21 Mo.App. 313;Brown v. Curtiss,155 Mo.App. 376.(3) The decree of suspension operated automatically to disqualify Sanderson as prosecuting attorney.Sec. 1000, R. S. 1909;Brown v. Woods,2 Okla. 601.See also: 32 Cyc. 619;29 Cyc. 1380;State v. Allen,21 Ind. 516;State v. Jones,19 Ind. 356;Prather v. Hart, 17 Neb. 598.
R. D. Rodgers and McBaine, Clark & Rollins for respondent.
(1) The right to practice law is a most valuable right, which the courts of Missouri and elsewhere fully protect.2 Thornton on Attorneys at Law, 1165;State ex rel. v. McElhinney,241 Mo. 592; Austin's Case, 5 Rawle, (Pa.) 191.(2) A lawyer who is disbarred or suspended by a circuit judge may appeal, and does not have to suffer his punishment until the appellate court says that it was properly inflicted.The judgment is stayed just as it is in actions at law, and the Legislature has so said.Martin on Civil Procedure at Common Law, p. 324;2 Tidd's Practice (3 Am. Ed.), p. 1148.See also Appeal and Error, 3 Corpus Juris, p. 1292.This was the rule in both civil and criminal cases.Criminal Law, 17 Corpus Juris 107;Insurance Co. v. Hotel Co.,37 Wis. 125;Kountze v. Omaha Hotel Co.,107 U.S. 381;Meagher v. Vandyk, 2 B. & P. 370, 125 Eng. Rep. 1333.By statute in Missouri the judgment is stayed.Secs. 962, 2042, R. S. 1909;State ex rel. Larew v. Sale,188 Mo. 493;Ex parte Smith, 193 S.W. 288;State ex rel. v. Bird,253 Mo. 569;State ex rel. v. Herzel,137 Mo. 435;State ex rel. v. Kline,137 Mo. 673;Cuendet v. Henderson, 166 Mo. 657.
OPINIONIn Banc
Quo Warranto.
This is an original proceeding in quo warranto, instituted by the Attorney-General for the purpose of removing the respondent from the office of Prosecuting Attorney of Callaway County.The case stands for decision upon a demurrer to the information, which need not be set out in full.The reason assigned for the demurrer is that the information states no cause of action, a proposition rested upon a single fact, which will appear presently.According to the information respondent was elected Prosecuting Attorney of Callaway County in 1918, and qualified and entered upon the discharge of the duties of the office January 1, 1919.On March twenty-eighth of that year, he was suspended from the practice of law in Callaway and the other counties of the State for twelve months from that date, by a judgment of the Circuit Court of Audrain County, whither a proceeding to disbar him had been sent by a change of venue from Callaway County.On the same day (March 28, 1919)respondent was granted an appeal from the judgment to this court and gave a duly approved appeal bond in the sum of five hundred dollars; but the Audrain Court made no order to suspend its judgment or stay the execution of it.In view of those and other formal facts, the Attorney-General informs this court that respondent had unlawfully usurped, held and exercised said office since March 28, 1919, and still usurped it at the date the information was filed.Respondent's position is that as he was granted an appeal and his bond approved, the judgment of the trial court was superseded pending the appeal and he has the right to practice law, at least so far as performing the duties of his office constitute practicing, until the appeal is determined.The judgment against respondent was rendered prior to the Act of 1919, changing in some matters the statute relating to the suspension and removal from practice of attorneys; but those modifications in no way affect the decision of this case.[Laws 1919, p. 151.]
The statute regarding the qualifications a prosecuting attorney must possess is this one:
"At the general election to be held in this State in the year A. D. 1880, and every two years thereafter, there shall be elected, in each county of this State, a prosecuting attorney, who shall be a person learned in the law, duly licensed to practice as an attorney at law in this State and enrolled as such, at least twenty-one years of age, and shall hold his office for two years, and until his successor is elected, commissioned and qualified."[R. S. 1909, sec. 1000.]
The information is silent as to whether respondent had been duly licensed to practice law in this State previous to the judgment of disbarment, and at the date of his election; so it is to be presumed he had been.Therefore, he was qualified for the office when elected, which is all the cited section requires if enforced literally.The requirement as to age makes it clear, were it otherwise doubtful, that the primary object of the law was to prescribe the qualifications a person must possess when elected prosecuting attorney, to entitle him to the office after he is elected.The facts stated in the information in the case at bar do not require us to say whether, by a reasonable construction of the language of the controlling statute, the conclusion can be reached, that if a person is elected prosecuting attorney while he holds a license to practice law in the State, the requirement of that qualification for the office is satisfied, as nothing is said about the license continuing in force as a condition on which he may retain the place.But it must be borne in mind that this proceeding is penal in its nature and, further, that a disbarment statute is too, and not to be extended beyond its terms. [Moutray v People,162 Ill. 194, 44 N.E. 496;and seeState ex rel. Weed v. Meek,129 Mo. 431, 31 S.W. 913, a case construing a similar statute.]If the case is brought down to the precise point involved, it becomes unnecessary to decide whether a judgment of permanent disbarment and revocation of the license of a prosecuting attorney, would disqualify him, within the spirit and intention of the statute, to hold his position, the essential inquiry being the narrower one as to the effect, in that regard, of a temporary suspension.In this connection we observe that various offenses disqualify the perpetrator to hold office, and others are made causes for forfeiture and removal; among them are murder, felonious assault, robbery, arson, larceny, fraud or oppression in office, corrupt practices in election, drunkenness, etc. [R. S. 1909, secs. 4504,6051,6056,4411,4412and10203.]There are other sections on the subject and regulating the procedure to be followed, including Sections 10203 et seq., which provide for a trial by jury to determine the guilt of the accused.We observe, too, that there are occasional provisions for either suspension or removal of guilty officials, according to the seriousness of the offense; and also for the temporary suspension of certain officers when charged with misconduct or a crime until the charge is tried; for example, clerks of courts of record.[R. S. 1909, secs. 9784, 9785, 9941 and 2689.]More germane to the matter in hand is the law authorizing a circuit or prosecuting attorney in cities of one hundred thousand inhabitants or more, when indicted for designated violations of the law, to be suspended until the indictment has been disposed of in his favor; whereupon he is to be restored to office and the person appointed to serve in his stead during the suspension, ceases to act.[R. S. 1909, secs. 998, 999.]In a proceeding under Article 2, Chapter 90,Revised Statutes 1909(), to remove a county, city or township officer, if there is a conviction, the defendant is allowed an appeal to this court, pending the appeal is suspended, and if the appeal results in his favor, he is paid for the time for which he was removed.Those statutes are referred to because they show the policy of the State is, that a duly elected or appointed official shall not be deprived of his position except for remissness in the performance of the duties of the office, or conviction of some crime which demonstrates he is unworthy to hold a position of honor or trust.Not only is said policy to be gleaned from statutory enactments, but this court has decided that if an official possesses the requisite qualifications for his position, he can be removed from it only for misconduct connected with the performance of the duties of the office, except when some transgression apart from those duties is made by statute cause for removal; and that rule is general.[State ex rel. v. Sheppard, 192 Mo. 497, 511.]We cite as somewhat pertinent to our present inquiry, a case in which this court prohibited a circuit judge from suspending from practice, temporarily, an attorney who had appealed from the...
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