State, ex rel. Selleck v. Reynolds

• Decision Date: 10 July 1913
• Citation: 158 S.W. 671,252 Mo. 369
• Parties: THE STATE ex rel. ELLROY V. SELLECK v. GEORGE D. REYNOLDS et al., Judges St. Louis Court of Appeals
• Court: Missouri Supreme Court

158 S.W. 671

252 Mo. 369

THE STATE ex rel. ELLROY V. SELLECK v. GEORGE D. REYNOLDS et al., Judges St. Louis Court of Appeals

Supreme Court of Missouri

July 10, 1913

Record and judgment quashed.

T. J Rowe, John A. Talty and Thos. J. Rowe, Jr., for relator

(1) The St. Louis Court of Appeals is a court of limited and special jurisdiction and has no jurisdiction except such as is conferred upon it by the Constitution. (2) The jurisdiction of the St. Louis Court of Appeals in all matters except the issuance of extraordinary writs within the territory over which it has jurisdiction is solely and only appellate and it has no original jurisdiction in disbarment proceedings. (3) The St. Louis Court of Appeals had no jurisdiction in this case because the validity of Sec. 952, R.S. 1909, is drawn in question; and said court of appeals under the Constitution has no jurisdiction in cases wherein the validity of a statute is drawn in question. (4) The court of appeals has no power by either expressed statute or implication to license attorneys at law and therefore has no power to disbar them. State ex rel. v. Mullins, 129 Mo. 237; State ex rel. v. Harbor, 129 Mo. 293; State ex rel. v Laughlin, 73 Mo. 449. (5) Section 28, article 2, of the Constitution provides the right of trial by jury as heretofore enjoyed shall remain inviolate, and by virtue of said constitutional provision plaintiff had a right to a trial by jury because the right of an attorney to practice law is a valuable property right which cannot be taken from him except by due process of law. State ex rel. v McElhinney, 241 Mo. 606. (6) The original, as well as the appellate, jurisdiction of the St. Louis Court of Appeals is confined to those cases the subject-matter of which is not within the appellate jurisdiction of the Supreme Court. State ex rel. v. Rombauer, 101 Mo. 449; State ex rel. v. Allen, 45 Mo.App. 551; State ex rel. v. Nortoni 201 Mo. 1.

Walter H. Saunders for respondents.

(1) In an original proceeding in the courts of appeal, the suggestion of a constitutional question does not oust said court of jurisdiction, because there is no provision for the transfer of such cause to the Supreme Court, and the prosecution of such cause there; the result, therefore, would be that the cause upon transfer would terminate, and the suggested constitutional question could never be decided in that proceeding. Furthermore, after the cause is transferred and terminates it might be refiled either in the Supreme Court or any other court having jurisdiction, and then the constitutional question might not be raised. To adopt such a rule would cause endless inconvenience and delays and place a premium upon frivolous constitutional questions and dilatory tactics. In original proceedings, the constitutional question can be reviewed only by certificate or certiorari. But assuming, which we deny, that a constitutional question, if raised in such proceeding, automatically ousts the court of jurisdiction, it must be raised at the earliest possible moment, which in this case would have been in the return and the amended return to the charges filed. Pickel v. Pickel, 243 Mo. 666; Hartzler v. Railroad, 218 Mo. 564; Sublette v. Railroad, 198 Mo. 190. It not having been so raised (in fact, not raised till motion for rehearing) it came too late and cannot be considered. The statute attacked is clearly constitutional, because the inherent original power of the court is not within the terms of the constitutional limitations. When a court is, as in this case, exercising its inherent jurisdiction, which is merely regulated by the statute, no constitutional question can be raised, because jurisdiction is not derived from the statute; and, therefore, any constitutional question is necessarily frivolous. State v. Garesche, 36 Mo. 256; State ex rel. v. Laughlin, 73 Mo. 446; State ex rel. v. Mullins, 129 Mo. 236; State ex rel. v. Harber, 121 Mo. 293; State ex rel. v. Clopton, 15 Mo.App. 589. If the St. Louis Court of Appeals cannot disbar for lack of both inherent and statutory power, neither can this court, because the constitutional provisions as to original proceedings are substantially similar. Constitution, art. 6, secs. 2 and 3, and 12. If the statute giving this court the sole power to admit to the bar is a repeal by implication of section 952, then since this court has no right to disbar, if relator's contention is correct, the result would be that no State court in Missouri could disbar. The power to admit to the bar and to disbar are both judicial powers. Weeks on Attys., sec. 43, p. 90; Petition of Splane, 123 Pa. St. 527; In re Thatcher, 80 Ohio St. 652; In re Durant, 80 Conn. 147. (2) An attorney is simply an officer of the court, and does not hold a public office of trust or profit within the meaning of the Constitution. Weeks on Attorneys, sec. 39, p. 81; State v. Garesche, 36 Mo. 256; State ex rel. v. Mullins, 129 Mo. 231. (3) The English courts under their general powers have from time immemorial disbarred attorneys. Weeks on Attorneys, sec. 80, pp. 161-2. English statutes, since 1275, have regulated the disbarment of attorneys, and from an early day their admission to practice. (4) In this country, from the foundation of the different State governments, the appellate courts have had and exercised original jurisdiction to disbar attorneys, which is an inherent power essential to the administration of justice. The different State statutes on this subject were merely regulative and did not create the power. Strother v. State, 1 Mo. 605; State v. Watkins, 3 Mo. 480; State v. Garesche, 36 Mo. 256; State ex rel. v. Laughlin, 73 Mo. 443; State ex rel. v. Mullins, 129 Mo. 236; State ex rel. v. Harber, 129 Mo. 293; State ex rel. v. Smith, 176 Mo. 101; State ex rel. v. Sale, 188 Mo. 493. (5) Our statutes, Secs. 956-9, R.S. 1909, do not mean that an attorney cannot be disbarred where the charge amounts to a felony, without first being convicted of such felony. If the statutes mean that, they are clearly unconstitutional, as an unreasonable restriction upon the necessary inherent powers of the court. Railroad v. Gildersleeve, 219 Mo. 170; Ex parte Creasy, 243 Mo. 708; In re Thatcher, 80 Ohio 670; Ex parte Wall, 107 U.S. 265; State ex rel. v. Harber, 129 Mo. 289. A disbarment is a civil proceeding, a prosecution for a crime, criminal. The two proceedings have wholly different objects and are governed by different rules.

GRAVES, J. Bond and Faris, JJ., concur; Brown, J., concurs in separate opinion. Lamm, C. J., Woodson and Walker, JJ., dissent as indicated by opinion filed.

OPINION

In Banc.

Certiorari.

GRAVES J.

This is an original action by way of a writ of certiorari directed to the St. Louis Court of Appeals in a case entitled "In the Matter of Ellroy V. Selleck." The pleadings and facts can be shortly stated. The Bar Association of St. Louis, Missouri, through their grievance committee, filed charges against Selleck in the St. Louis Court of Appeals, and asked that Selleck be disbarred. These charges were varied in degree and were five in number, as indicated by the several counts in the petition filed by this grievance committee of the Bar Association. We need not go into the details of all these charges, because only two are here involved. The St. Louis Court of Appeals appointed two most excellent lawyers of that bar to hear the charges against Selleck, and these gentlemen made their report to the court finding that Selleck was guilty as to the fourth and fifth charges in the petition for disbarment, but not guilty of the first, second and third charges in such petition contained. The report of these two commissioners was approved by the court and by the judgment of the court, Selleck, a duly licensed lawyer of the State, was debarred from the further practice of his profession in all the courts of Missouri.

We need not go into details of the charges contained in the fourth and fifth counts of the petition upon which Selleck was found guilty. It will suffice to state that there was a finding of guilty upon these two counts, and that they in substance and fact charged Selleck with matters which under the law make up and constitute felonies under the criminal laws of the State. In other words, they were not only indictable offenses, but indictable offenses of the graver kind, i. e., felonies. When the report of the commissioners came in, Selleck by his counsel filed exceptions thereto, and among other things those exceptions in paragraph 16 and 17 thereof contained the following:

"Under the pleadings, the information or charges, the court has not the authority or power to revoke respondent's license to practice law in the State of Missouri.

"This court has not jurisdiction in proceedings of this character. It has no jurisdiction, authority or power to revoke respondent's license to practice law in the State of Missouri. Respondent was duly admitted to practice law and licensed to practice law in the courts of the State of Missouri by the Supreme Court of Missouri, the sole court with power to issue license to attorneys to practice law in this State.

"The evidence is uncontradicted that the acts of the respondent complained of were not committed in reference to or in connection with, any matter pending in this court, therefore the question of the authority inherent in a court to control the conduct of attorneys practicing at its bar does not arise.

"This court, with certain marked and definite exceptions, is designed to be strictly appellate in its character, duties and functions. The Constitution of the State of Missouri, in addition to its appellate jurisdiction abridges this court's powers to issuing writs of habeas corpus, quo warranto, mandamus, certiorari and other...