State v. McClaugherty
| Decision Date | 21 November 1889 |
| Citation | 33 W.Va. 250 |
| Parties | State v. McClaugherty.*(Green, Judge, Absent.) |
| Court | West Virginia Supreme Court |
Our Statute--sec. 27, ch. 147, Code 1887--regulating the punishment for the classes of contempts therein mentioned, is constitutional and binding upon Circuit and other inferior courts.
A Circuit Court has no power, under the provisions of said statute, by summary proceedings, to fine an attorney for writing and causing to be published in a newspaper a libelous charge against the judge of such court.
A Circuit Court may, independent and outside of the provisions of sec. 6, ch. 119 of Code 1887, strike the name of an attorney from the roll of such court for sufficient cause, but it can not, except in the manner provided by said statute, suspend or annul the license of an attorney.
When an attorney commits an act, whether in the discharge of his duties as an attorney or not, showing such a want of professional or personal honesty as renders him unworthy of public confidence, it is not only the province but the duty of the court, upon a proper presentation of the case, to strike his name from the roll of its attorneys. But the base character which will justify such action must be such as shows the attorney to be an unsafe and unfit person to be entrusted with the powers of the profession.
5. C IrcUIt Court--AttoRney-aT-Law--SUMMARY ary Proceedings. The Circuit Court may by summary proceedings, according to the common law, strike from its roll the name of an attorney who is guilty of writing and publishing in a newspaper a false and libelous charge against the judge of such court in respect to his official conduct, and the disclainer by the attorney of intentional wrong or disrespect to the judge or court will not excuse him, when the contrary appears upon a fair interpretation of the language employed.
6. Circuit Court--Attorney-at-Law Ex Mero Motu.
Circuit Courts have jurisdiction and power upon their own motion, without formal complaint or petition, in a proper case, to strike the name of an attorney from the roll, provided he had reasonable notice and an opportunity to be heard.
J. W. Davis for plaintiff in error.
Attorney General Alfred Caldwell for defendant in error.
Snyder, President:
On December 18, 1888, the attention of the Circuit Court of Mercer county, then in session, was called to an article published in the Wheeling Intelligencer, over the signature of D. W. McClaugherty, a member of the bar of said court; and the said McClaugherty then present, admitted in court, that he was the author of said article, and declining to disclaim that it was his purpose in writing said article to reflect upon the court, the court thereupon awarded a rule against him to appear before it on December 19, 1888, to answer for his contempt and show cause, why he should not be attached and fined for writing, and causing the said article to be published; and farther to show cause why the privilege theretofore granted him to practice as an attorney in said court should not be revoked on account of said publication. On the return day of said rule the defendant appeared and moved the court to dismiss the rule, which motion the court overruled, and thereupon the defendant tendered his answer, which the court adjudged insufficient and gave him until the next day to tender another answer. On the following day the defendant, by leave of the court, filed his answer to said rule, in which he denied, that the writing and publication of said newspaper article constituted misbehavior in the presence of the court or so near thereto as to obstruct or interfere with the administration of justice. He also denied that it constituted any of the offences specified in the second, third and fourth clauses of section 27 of chapter 147, Code, and hence it was not such a contempt as could be summarily punished under the said 27th section of said statute. The defendant further answered, that no contempt or disrespect to the court was intended by said writing and publication, or that it had reference to any matter then pending before the court. Thereupon the court, on consideration of certain facts, a part of them appearing of record in said court, found that said publication was false and libellous, and that the defendant was guilty of a contempt of the court, and also of a flagrant and willful abuse of his privilege as an attorney and officer of the court, and ordered an attachment to issue against the defendant. And the defendant being in court waived the formal issuance and service of the attachment; thereupon the court adjudged and ordered that the defendant for his contempt, pay to the State a fine of $50.00, and directed a capias pro fine to issue against him for the costs; and further, that the privilege theretofore granted to the defendant to practice as an attorney in said court be revoked. To this order and judgment the defendant obtained this writ of error.
The first error assigned by the plaintiff in error, is that the court erred in overruling his motion to dismiss the rule.
The question presented by this motion may he divided as follows: First, Do the facts alleged in the rule constitute a contempt such as is mentioned and classified in any of the provisions of section 27 of chapter 147 of the Code? Second, Is said section of the statute constitutional and valid in respect to cases such as the one now before us? And, Third, Does the rule show grounds for disbarring the defendant?
The newspaper article complained of is made a part of the rule. In respect to the article, it is sufficient to say, that it is a personal attack on the judge of the court in his official conduct, and, if false as the court found it was, it was clearly a contempt and liable to be punished as such. But conceding this to be true, if the aforesaid statute is valid, the court had no power to issue the rule, unless the contempt charged is one of those specified in the said statute; because it is therein declared, that the courts and judges thereof shall issue attachments for contempts and punish them summarily only in the cases therein mentioned.
The cases mentioned are as follows:
The contempts here mentioned and specified are of the class known and designated direct contempts as contradistinguished from constructive contempts. Direct contempts are such as are committed in the presence, or such as obstruct or interrupt the proceedings, of the court. These may under the statute be punished summarily by the presiding judge. All other contempts are constructive, and under our statute are made misdemeanors punishable by indictment. § 30, chap. 147, Code 1887. State v. Frew, 26 W. Va. 214.
The following quotations contain the most direct charges made in the said publication in respect to the official acts of the judge:
"A few days before the commencement of the Circuit Court, the judge thereof publicly desired the prosecuting attorney to have summoned before the grand jury all persons most likely to know of offences against the election laws. He was answered, 'I am endeavoring to do so.' Thereupon he replied, 'If you are not going to do so, I shall have some one who will.' He received the reply 'that is my duty and none of yours.' To some extent he should be excused for this, because of the depressing effect the result of the election had upon him, so forcibly expressed by his careworn and haggard expression.
* * *
The charge to the grand jury was not so lengthy upon offences commonly brought to their attention, but in the charge upon offences against the election laws, the dignity of the bench was forgotten and remarks were made by those present that the election was to be contested in the grand jury room.
* * *
The grand jury was charged by the court, that unless the names of the voters appeared upon the assessor's books, and it was not proven before them that these voters had a permanent residence in the county, it was a prima facie case of illegal voting and to indict them.
* * *
Upon testimony of this character 260 persons were indicted. These all voted at the two strongest Republican precincts in the county. Nowhere else was the vote questioned in this way, although the number of votes cast at the other precincts in the county were largely in excess of the number of names upon the assessor's books. The 260 indictments above mentioned were returned by the grand jury on the 6th day of December, hut the Democratic State Executive Committee seems to have been apprised of the fact six days before, to wit, on the 30th day of November, which may be seen by reference to their address. At that date no indictments had been returned by the grand jury and not more than three or four had been made for this offence, and these against Democrats, which fact it would have been impossible to have been known at Charleston except by telegram. Where were the 'conspiracy and fraud, ' and who were the 'conspirators?' Evidently in Mercer there were accessories, hence the effort to induce the grand jury to indict many persons for illegal voting. Was not this promised to the Executive Committee before the 30th day of November? On that day...
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