State v. Johnson

• Decision Date: 05 April 1916
• Docket Number: 273.
• Citation: 88 S.E. 437,171 N.C. 799
• Parties: STATE EX REL. SOLICITOR v. JOHNSON.
• Court: North Carolina Supreme Court

88 S.E. 437

171 N.C. 799

STATE EX REL. SOLICITOR v. JOHNSON.

No. 273.

Supreme Court of North Carolina

April 5, 1916

Appeal from Superior Court, Cumberland County.

Proceeding by the State, on relation of the Solicitor, against James H Johnson, for his disbarment. From an order dismissing the proceeding the State and Solicitor appeal. Reversed.

This is a proceeding instituted by the solicitor of the Ninth judicial district to debar the respondent of his right to practice law. The proceeding was commenced by an affidavit of the solicitor alleging that the respondent, while holding a license to practice law, had, in a number of cases, and at different terms of the superior court then recently held been convicted and had confessed guilt on indictments charging him with selling spirituous or vinous liquors. The respondent filed answer, and, as part thereof, challenged the jurisdiction of the court, and thereupon the following judgment was rendered:

"Upon the petition, affidavit, and answer, the court being of the opinion that under the statutes the court has no power to disbar for the causes set up in the petition and affidavit the motion of the defendant to dismiss is allowed."

The state and solicitor appealed.

The contention of the respondent is that the act of 1907, c. 941 (Rev. 1908, § 211a), repeals the act of 1871 (Rev. 1905, § 211), and that he cannot be disbarred under the later act because he has not been convicted of a felony; while the state contends that there is no repeal, and that the respondent may be disbarred under the act of 1871 if convicted of any crime, provided the court finds that he is rendered unfit to be trusted in the discharge of the duties of his profession by reason of his conviction.

T. W. Bickett, Atty. Gen., and T. H. Calvert, Asst. Atty. Gen., for appellants.

ALLEN J.

The Revisal of 1905, § 211, provides:

"No person who shall have been duly licensed to practice law as an attorney shall be debarred or deprived of his license and right so to practice law, either permanently or temporarily, unless he shall have been convicted, or in open court confessed himself guilty, of some criminal offense showing him to be unfit to be trusted in the discharge of the duties of his profession, and unless he shall be debarred according to the provisions of this chapter."

This was brought forward from the act of 1871, c. 216.

The act of 1907, c. 941 (Revisal 1908, 211a), in part, provides:

"An attorney at law must be disbarred and removed for the following causes by the superior court: (1) Upon his being convicted of a crime punishable by imprisonment in the penitentiary."

The other provisions of the act of 1907 need not be considered because not material here.

Before the act of 1871 it was held, in Moore, Ex parte, 63 N.C. 397, and Biggs, Ex parte, 64 N.C. 202, that the common-law power of the court could be exerted in the case of an attorney who had shown himself to be an unworthy member of the profession, and it is generally understood that the act of 1871 was passed in consequence of these decisions.

The construction of the act of 1871 is that it "takes from the court this common-law power to purge the bar of unfit members, except in specific cases, and it fails to provide any other power to be used in its place; it is a disabling and not an enabling statute, the whole purpose seeming to be to tie the hands of the court" (Kane v. Haywood, 66 N.C. 1), but that it does not destroy the inherent powers of the court essential to the administration of justice (Ex parte Schenck, 65 N.C. 353; Kane v. Haywood, 66 N.C. 1).

The court said in Ex parte Ebbs, 150 N.C. 44, 63 S.E. 190, 19 L. R. A. (N. S.) 892, 17 Ann. Cas. 592, in reviewing the acts of 1871 and 1907:

"We do not entertain any doubt that, notwithstanding the restrictions placed upon the courts by the statute, ample power exists to protect them and their suitors from indignity, fraud, dishonesty, or malpractice on the part of any of its officers in the discharge of their official duties. It is manifest, however, that for the commission of crimes which seriously affect their moral character, but have no direct connection with their practical and immediate relation to the courts, the power to disbar attorneys is restricted by the express language of the statutes to convictions

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