State v. Cannon

Decision Date12 January 1932
Citation206 Wis. 374,240 N.W. 441
PartiesSTATE v. CANNON. IN RE CANNON.
CourtWisconsin Supreme Court

OPINION TEXT STARTS HERE

Application by Raymond J. Cannon for reinstatement in the practice of law as a member of the Bar of the Supreme Court.––[By Editorial Staff.]

Reinstatement conditioned upon payment of judgment for costs rendered against applicant in the original proceeding resulting in his suspension from practice (199 Wis. 401, 226 N. W. 385).

Application of Raymond J. Cannon for reinstatement as a member of the Bar.Spencer Haven, Special Counsel, of Hudson, John W. Reynolds, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and Fred M. Wylie, Deputy Atty. Gen., for the State.

W. A. Hayes, of Milwaukee, and Henry Lockney, of Waukesha, for defendant.

J. G. Hardgrove and Maxwell H. Herriott, both of Milwaukee (Lines, Spooner & Quarles, of Milwaukee, of counsel), for Judicial Committee, State Bar Ass'n, and Executive Committee, Milwaukee Bar Ass'n.

OWEN, J.

Raymond J. Cannon, a former member of the bar of this court, was ordered suspended from such office for a period of two years on the 5th day of July, 1929. State v. Cannon, 199 Wis. 401, 226 N. W. 385. The order of suspension, as an additional penalty, required the said Raymond J. Cannon to pay the costs of the original proceeding against him, which were taxed at the sum of $2,699.78. The costs thus taxed were not paid. On the 28th day of May, 1931, under the provisions of said order, he made application for his reinstatement. In accordance with the usual practice of this court, his application was referred to the Board of State Bar Commissioners (237 N. W. 116), with instructions to make special inquiry and report with reference to the following matters: (1) The ability of the said Raymond J. Cannon, at the time of the entry of the order of disbarment, to pay and discharge the judgment for costs; (2) the present ability of the said Raymond J. Cannon to pay and discharge said judgment for costs; (3) as to whether the conduct of the said Raymond J. Cannon since the date of his disbarment gives assurance that if he be readmitted he will observe the obligations of the legislative oath required of attorneys, with especial reference to that clause which requires an attorney to maintain the respect due to courts of justice and judicial officers; and (4) as to whether said Raymond J. Cannon made public charges against courts or judicial officers of this state embracing criminal misconduct, malfeasance in office, or immorality, and, if such charges were made, what basis in fact there was therefor. In obedience to said reference, the Board of State Bar Commissioners made and filed its report with this court on the 19th day of September, 1931, to which reference will hereafter be made.

The application was argued before the court on the 14th day of November, 1931. Aside from the question of whether the conduct of Mr. Cannon subsequent to his suspension had been such as to merit reinstatement, the court was confronted with the serious question of whether chapter 480, Laws 1931, was constitutional in so far as it purports (1) to reinstate said Raymond J. Cannon as an attorney at law; and (2) in so far as it purports to remit the costs imposed upon Mr. Cannon by the order of suspension. The statute reads as follows: “The license to practice law, duly issued to Raymond J. Cannon on the thirtieth day of April, 1914, and revoked by judgment of the supreme court on July 5, 1929, is hereby restored, and the costs imposed by said judgment are hereby remitted, and the said Raymond J. Cannon is hereby authorized, henceforth, to exercise all the rights and privileges of a duly licensed member of the bar.” Upon the question of the validity of this statute briefs amici curiæ were invited by the court, and we greatly appreciate the able and willing response to such invitation.

At the outset, we must consider the orderly manner of treatment of the various questions presented. If we should conclude to grant the petition for reinstatement upon the merits, we may avoid consideration of the question of the power of the Legislature to enact the statute referred to. On the other hand, if the act of the Legislature is efficient to reinstate Mr. Cannon as a member of the bar, the court need not consider the merits of the application.

It has been suggested that the court should not consider the constitutionality of the statute unless it finds it absolutely necessary to do so; this in obedience to the general reluctance of courts to declare statutes unconstitutional and to face such questions only under imperative circumstances. It is further said that to declare the statute unconstitutional will but lend emphasis to a clash between two co–ordinate departments of the government and promote discord and ill will where the best interests of society require the existence of amity and consideration.

We do not impute to this act a legislative challenge of the authority of this court, nor do we see in it a hostile or belligerent attitude on the part of the Legislature towards the court. The Legislature has too recently given evidence of its confidence in the court (chapter 404, Laws 1929; chapter 366, Laws 1931), for us to construe this act as indicative of legislative defiance. We rather consider the act as an assertion of what the Legislature itself probably considered a doubtful power.

The Deputy Attorney General suggests that the question is worthy of an original and fundamental investigation, freely conceding that an amplitude of authority may be found for the assertion of the inherent power of the court. We are impressed with the thought that it would be a very weak response to the responsibility imposed upon this court if it sought a way to avoid the determination of this question, involving as it does the respective powers of co–ordinate branches of the government. We do not fail to appreciate the delicacy in considering a disputed question involving legislative and judicial power. We easily subject ourselves to the criticism of usurping power where by our decision the power is committed to the judicial rather than the legislative department of government. However, we may as easily subject ourselves to the criticism of timidity were we to betray a disposition to avoid responsibility. The usurpation of power is not more culpable than the abdication of responsibility.

This statute presents an assertion of legislative power without parallel in the history of the English speaking people so far as we have been able to ascertain. There has been much uncertainty as to the extent of the power of the Legislature to prescribe the ultimate qualifications of attorneys at law, but in England and in every state of the Union the act of admitting an attorney at law has been expressly committed to the courts, and the act of admission has always been regarded as a judicial function. This act purports to constitute Mr. Cannon an attorney at law, and in this respect it stands alone as an assertion of legislative power. Two acts of the Legislature of the state of New York, one relating to the admission of Woodrow Wilson as an attorney at law and the other to the admission of John B. Sargent, are cited as precedents, neither of which, however, constitutes any precedent for the act under consideration, as will be hereafter pointed out.

In view of the uncertainty revealed by the pronouncements of courts throughout the country concerning the exact extent of the power of the Legislature to prescribe the ultimate qualifications of attorneys at law and to supervise the disciplinary power of the courts over them, we are persuaded that we may render a helpful service at this time by following the suggestions of the Deputy Attorney General in making an original and fundamental investigation of the question, disregarding for present purposes the rather uncertain and conflicting views of American courts. We enter upon this undertaking satisfied in our own consciences that it will not be influenced by a lust for power, but that we shall willingly follow wherever the light may lead, imbued only with the purpose to declare the seat of this power to reside where the framers of the Constitution intended. No greater responsibility rests upon this court than that of preserving in form and substance the exact form of government set up by the people. That is the responsibility which the people themselves devolved upon this court, and if we are true to our oaths and worthy of our stations we will not hesitate to declare the power a judicial one if such shall appear to be the intention of the framers of the Constitution. We cannot see that the charge of judicial lust for power is more reprehensible than the charge of legislative lust for power, and it is not becoming for any department of government to yield its power as a matter of deference. That amounts to a method of amending the Constitution in which the people are accorded no voice.

[1][2] Under our Constitution all legislative power is vested in a Senate and Assembly. Section 1, art. 4. In so far as the prescribing of qualifications for admission to the bar are legislative in character, the Legislature is acting within its constitutional authority when it sets up and prescribes such qualifications. That there is a field within which the prescribing of such qualifications constitutes a legislative function cannot be doubted. One of the very important functions of the Legislature is to promote the public welfare and to protect the public from the results of incompetence, imposition, and fraud on the part of those who assume to practice the learned professions and occupations requiring skill and special training. In obedience to its duty in this respect, the Legislature of this state has limited those who may follow such professions and occupations to such as may demonstrate in the manner prescribed by the Legislature their fitness and qualifications for such callings. Realizing...

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