State ex rel. Shackleford v. McElhinney

• Citation: 145 S.W. 1139,241 Mo. 592
• Parties: THE STATE ex rel. ROBERT L. SHACKLEFORD v. JOHN W. McELHINNEY, Judge
• Decision Date: 28 March 1912
• Court: United States State Supreme Court of Missouri

145 S.W. 1139

241 Mo. 592

THE STATE ex rel. ROBERT L. SHACKLEFORD v. JOHN W. McELHINNEY, Judge

Supreme Court of Missouri

March 28, 1912

Peremptory writ denied.

J. C Kiskaddon and A. H. Kiskaddon for relator.

(1) The admission of a person to the bar as an attorney at law is a judgment, and confers upon the person admitted valuable property rights, of which he cannot be deprived by the arbitrary action of either a court or legislature, but only upon a judicial hearing on charges presented, in which he is given an opportunity to be heard in his own defense. Garland ex parte, 4 Wall. (U.S.) 333; Hefron ex parte, 7 How. (Miss.) 127; In re Cooper, 22 N.Y. 81; Fletcher v Dangerfield, 20 Cal. 427; People v. Turner, 1 Cal. 150; Fish v. Printing Co., 102 Mo.App. 6; State v. Laughlin, 73 Mo. 443; State v Peabody, 63 Mo.App. 378; State v. Gebhardt, 87 Mo.App. 542; In re Flukes, 125 Mo. 125; McPherson v. State, 3 W.Va. 364; Phares v. State, 3 W.Va. 367; Ex parte Barr, 9 Wheat. (U.S.) 529; Wommack v. Halloway, 2 Ala. 31; Cummings v. State, 4 Wal. (U.S.) 277; Peyton's Appeal, 12 Kan. 398; Deul v. West Virginia, 129 U.S. 114; Ex parte Steinman, 95 Pa. St. 220; Ex parte Robinson, 19 Wal. (U.S.) 505; Ex parte Austin, 5 Rawle (Pa.) 191. (2) Any arbitrary order of a court or act of a Legislature depriving a duly admitted attorney at law of his right to practice law is without due process of law, and under the Constitution of this State and the United States is void. It is a right of which an attorney cannot be deprived except by the judgment of a court, after an opportunity to be heard in his own defense for moral or professional delinquency. R. S. 1909, sec. 951; In re Cooper, 22 N.Y. 81; Ex parte Garland, 4 Wall. (U.S.) 333; Jones v. Gore, 142 Mo. 44; Clark v. Mitchell, 64 Mo. 564; Hunt v. Searcy, 167 Mo. 158; State v. Julow, 129 Mo. 174; St. Joseph v. Truckenmueller, 183 Mo 9; Ex parte Smith, 28 Ind. 47; State v. Loomis, 115 Mo. 307; Barber v. Ridge, 169 Mo. 376; St. Louis v. Karr, 85 Mo.App. 608; Williams v. Courtney, 77 Mo. 587. (3) The act of the Legislature in question is retroactive in that it takes away from the relator a vested right without due process of law. Leete v. Bank, 115 Mo. 184; St. Louis v. Clemens, 52 Mo. 133; Insurance Co. v. Flynn, 38 Mo. 483; Lutz v. Insurance Co, 8 Mo.App. 363; In re Flukes, 157 Mo. 125; Gladney v. Lydnor, 172 Mo. 318; McPherson v. State, 3 W.Va. 564. (4) The law is void in toto, because it is special legislation. Constitution, art. 6, secs. 1, 35; art. 4, sec. 53, par. 32; art. 6, secs. 6, 12; R. S. 1909, sec. 3843; R. S. 1909, sec. 4063. No authority we have been able to find is exactly in point; but the principle we contend for is more or less clearly enunciated in the following: Dunn v. Railroad, 131 Mo. 5; Hayes v. Mining Co., 227 Mo. 300; State v. Herman, 75 Mo. 340; Murmane v. St. Louis, 123 Mo. 491; State v. Jackson Co., 89 Mo. 227; State v. Messerly, 198 Mo. 355; Henderson v. Koenig, 168 Mo. 356; State v. Turner, 210 Mo. 77; State v. Granneman, 132 Mo. 326; State v. Ashbrook, 154 Mo. 375; Hannibal v. Telephone Co., 31 Mo.App. 32. (5) Where one is wrongfully deprived of his right to practice law mandamus is the proper remedy to restore him to that right. State v. Peabody, 63 Mo.App. 378; Ex parte Bradley 7 Wall. (U.S.) 364.

Henry Higginbotham for respondent.

(1) The courts cannot be required to render advisory opinions in the absence of a constitutional provision expressly imposing such duty. The judicial tribunals will decline to exercise the high office of passing upon the constitutionality of a statute unless it becomes necessary in order to determine the rights of the parties in a real and antagonistic controversy. Black, Const. Law, p. 84, sec. 53; Id. 57, sec. 25; 2 Story on Constitution (5 Ed.), sec. 1572; 6 Am. & Eng. Ency. Law (2 Ed.), 1067-1068; 8 Cyc. 847, note 32; Id. 799; Muskrat v. United States, 219 U.S. 346; Opinion in 55 Mo. 497; In re Railroad, 51 Mo. 586; Opinion in 37 Mo. 135 (2) Giving advice is not a judicial act, and the pronouncement of a court in response to an ex parte application for advice is coram non judice. In the Matter of the Application of the Senate, 10 Minn. 78; Muskrat v. United States, 219 U.S. 346; Opinion in 55 Mo. 497; Matter of Railroad, 51 Mo. 586; Opinion in 37 Mo. 135; State v. Baughman, 38 Ohio St. 460. (3) Mandamus cannot be made to perform the function of an appeal, writ of error or certiorari. State v. Megown, 89 Mo. 156; State v. Lubke, 85 Mo. 338; State v. McKee, 150 Mo. 233; State v. Horner, 16 Mo.App. 191; State v. Field, 37 Mo.App. 83; State v. Schneider, 47 Mo.App. 669; State v. Bland, 189 Mo. 215; In re Switzer, 201 Mo. 66; State v. Walbridge, 123 Mo. 202; State v. Shelton, 154 Mo. 670. Where a party, on his own motion, has invited the action of a judicial tribunal, and that tribunal has acted, whether with or without jurisdiction, mandamus can not be invoked for the purpose of revoking such decision. State v. Young, 84 Mo. 95. (4) The question of the constitutionality of a statute will not be decided unless it is imperatively necessary to the right disposition of the case. If there is any other ground in the case on which it can be fairly and satisfactorily disposed of on the merits, the decision will be rested on that ground, and the question of constitutionality will be left open. Black, Const. Law, p. 58, sec. 27; Cooley's Prin. Const. Law (3 Ed.), 165; Cooley's Const. Lim. (7 Ed.), 231; 8 Cyc. 799; State v. Hardelein, 169 Mo. 579; McDonald v. Ass'n, 175 Mo. 250; State v. Railroad, 176 Mo. 443. (5) The creation, control and regulation of State officers is a right within the internal and exclusive policy of each State, included in the guaranty by the Federal Constitution to each of the States of a republican form of government, and in the powers declared to be reserved to the States respectively by the tenth amendment. Butler v. Penn. 51 U.S. (10 How.) 402; Taylor v. Beckham, 178 U.S. 548; Wilson v. N. C., 169 U.S. 586. It is within the undoubted power of government to restrain some individuals from all contracts, as well as all individuals from some contracts. . . . It may . . . restrain all engaged in any employment from any contract in the course of that employment which is against public policy. Frisbie v. United States, 157 U.S. 160; Boone v. State, 54 So. 109. From the State's right to regulate the conduct of its officers in whatever way may seem best to the State, it results that neither class (the attorney nor the client) is placed at a disadvantage in respect to the enjoyment of any legal right. Boone v. State, 54 So. 109. (6) Legislation which is necessary or appropriate to carry into effect a positive command of a section of the Constitution, is neither local nor special. Kenefick v. City, 127 Mo. 1; State v. Etchman, 189 Mo. 648; State v. Darrah, 152 Mo. 522. The act of March 27, 1911 (Laws 1911, p. 189), is clearly authorized by the Constitution. Constitution, art. 2, sec. 18; Id., art. 14, sec. 7; Manker v. Faulhaber, 94 Mo. 430; State v. Slover, 113 Mo. 202; State v. Slover, 113 Mo. 211; State v. Walbridge, 119 Mo. 388; State v. Sheppard, 192 Mo. 506; State v Boyd, 196 Mo. 65; State v. Henderson, 145 Iowa 657; People v. Nellis, 249 Ill. 12. An act which embraces all persons who are in, or who may come into, like situations or circumstances is not special legislation. State v. Wafford, 121 Mo. 61; Dunne v. Railroad, 131 Mo. 1; Elting v. Hickman, 172 Mo. 237; Ex parte Loving, 178 Mo. 194; Ex parte Berger, 193 Mo. 16; State v. Rawlings, 134 S.W. 530. When the conditions reasonably justify the distinguishing of a class, and the law effects equally all who come within that class, that is, if all persons brought under the influence of the law are treated alike under the same conditions, such law is not special legislation forbidden by either the State or the Federal Constitution. State v. Swagerty, 203 Mo. 523; State v. Darrah, 152 Mo. 535; State v. Distilling Co., 139 S.W. 453. (7) Before a statute can be denounced as invalid under the provision of the Constitution prohibiting retrospective legislation, it must impinge some existing vested right. Gibson v. Railroad, 225 Mo. 481; Bushnell v. Loomis, 234 Mo. 371.

J. C. Kiskaddon and A. H. Kiskaddon for relator in reply.

Relator finds a drastic law in the statutes which he believes to be unconstitutional, but with that respect for an act of the Legislature which every lawyer ought to entertain, he does not deem it wise to give it his private interpretation and defy its mandates. He has a clear right in a certain case pending in court. He asks the judicial department to pass on the constitutionality of that law, so far as it interferes with that right. There is no other tribunal to which he can go.

If one who had never been admitted to the bar, or who had been disbarred by due process of law, should present himself and ask to be recognized as an attorney at law, in a particular case, the judge would be derelict in his duty if he did not immediately refuse to allow him to assume that position. So, if, in the opinion of the judge, the act in question was constitutional, he would be false to his office if he did not prevent the commission of a crime in his court.

Here the attention of the circuit court was called to all the facts, and to the questioned act; he was asked to say that the act was invalid, but he held the contrary, and denied relator the right to appear. There was then no remedy left to relator except mandamus, in which the validity of the act is questioned.

WOODSON, J. Ferriss, J., absent.

OPINION

In Banc

Mandamus.

WOODSON, J.

This is an original proceeding brought in this court, by the relator, seeking by mandamus to compel the respondent to recognize...