Thatcher v. United States

• Decision Date: 17 April 1914
• Docket Number: 2314.
• Parties: THATCHER v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

212 F. 801

THATCHER v. UNITED STATES.

No. 2314.

United States Court of Appeals, Sixth Circuit.

April 17, 1914

R. P Cary, of Memphis, Tenn., for plaintiff.

G. P Kirby and C. A. Seiders, both of Toledo, Ohio, for defendant.

Before DENISON, Circuit Judge, and COCHRAN and SANFORD, District judges.

PER CURIAM.

Charles H. Thatcher was an attorney and counselor of the Supreme Court of Ohio and of the United States District Court for the Northern District of Ohio and of this court. The Supreme Court of Ohio found him guilty of professional misconduct and disbarred him. A transcript of that action was presented to this court and a motion made for the entry of a similar order here. That motion was founded wholly upon the action of the Supreme Court of Ohio and did not independently charge the existence of those facts upon which the order of that court depended. This court, Judges Lurton, Severens, and Warrington sitting, held, upon the authority of Ex parte Tillinghast, 4 Pet. 108, 7 L.Ed. 798, that the proposed action could not rest merely upon the judgment of a court of another jurisdiction, but must be based upon allegation and proof of the actual offense. Accordingly a committee of the bar was appointed by this court to formulate and file charges against Mr. Thatcher, either in this court or in the District Court. Later, the District Court, upon due suggestion appointed a committee for a similar purpose, and that committee filed, in that court, a petition containing five charges,^[1] which may be thus briefly summarized (1) Publishing a libelous attack on a judge of a state court, by statements which respondent knew to be untrue; (2) bringing suit upon notes which he knew had been paid, and as part of a scheme to defraud a former client; (3) misleading District Judge (now Circuit Judge) Knappen by a proceeding analogous to forgery (altering an executed stipulation), whereby an irregular bill of exceptions was obtained; (4) causing an illiterate client to sign and file a pleading which charged fraud against other attorneys while respondent knew there was no evidence to support such a charge, and knew that the client did not understand the paper he was signing; and (5) bringing suit for his fees and obtaining a judgment by default against the same illiterate client, knowing that the client did not comprehend what was going on. The first two charges had been sustained by the Supreme Court of Ohio and formed a part of the basis of its action; the other three were first made in this proceeding.

We must first pass upon a motion made by the prosecuting committee to dismiss both appeal and writ of error. This motion is based upon the theory that only by mandamus can we review a disbarment order, and hence the motion denies that such an order is included within the classification, 'Final decisions of the District Courts in all cases other than those in which appeals and writs of error may be taken direct to the Supreme Court,' found in the statutory grant to this court of jurisdiction to review by appeal or by writs of error. Section 128, Judicial Code; Act March 3, 1911, c. 231, 36 Stat. 1133 (U.S. Comp. St. Supp. 1911, p. 194).

It is now settled that an order or decree of the District Court inflicting a fine or imprisonment as a punishment for contempt, as distinguished from such infliction intended to compel action for the benefit of a party, is a final decision or judgment subject to review by writ of error to the Circuit Court of Appeals. Bessette v. Conkey, 194 U.S. 324, 24 Sup.Ct. 665, 48 L.Ed. 997; In re Christensen, 194 U.S. 458, 24 Sup.Ct. 729, 48 L.Ed. 1072. It is held also, by this and other Circuit Courts of Appeals, that a judgment of deportation by the District Court is reviewable on appeal. United States v. Hung Chang (C.C.A. 6) 134 F. 19, 20, 67 C.C.A. 93; Gee Cue Beng v. United States (C.C.A. 5) 184 F. 383, 385, 106 C.C.A. 493. Neither the contempt nor the deportation proceeding is strictly criminal nor wholly civil. Each is well described as quasi criminal. In contempt, the criminal element, in deportation, the civil, is the dominant one. The disbarment proceeding is not the same as either of these, but bears strong analogy to each. In disbarment, as in contempt, the inherent right and necessity for the court to protect itself against matters incompatible with its power and dignity is the underlying principle; in each, the judgment is a punishment inflicted to insure that protection. In disbarment, as in deportation, it is charged that respondent is not entitled to the status he is claiming, and the effect of the judgment is to deprive him of that status. Neither in contempt nor deportation matters is there any greater formality than here. The practice in contempts is often the same as in disbarments; charges are filed by some attorney acting at the order or suggestion of the court; a summary issue is made up and an informal trial is had before the court without a jury. In deportation the hearing before the District Court is summary and informal. We are unable to appreciate the force of the argument which admits, as it must, that each of these matters is a 'case' included within the 'all other cases' which we must review, and which yet denies the same name to a proceeding in which a general or special public prosecutor moves against an individual and procures from the court a final decision which imposes on the respondent punishment for his misconduct and banishment from his profession. Most of the reasoning in Bessette v. Conkey is clearly applicable to disbarment; and, for discussion of what constitutes a 'case,' see I.C.C. v. Brimson, 154 U.S. 447, 475, 155 U.S. 3, 14 Sup.Ct. 1125, 15 Sup.Ct. 19, 38 L.Ed. 1047, 39 L.Ed. 49; Fong Yue Ting v. United States, 149 U.S. 698, 728, 729, 13 Sup.Ct. 1016, 37 L.Ed. 905; Madisonville Co. v. Bernard Co., 196 U.S. 239, 25 Sup.Ct. 251, 49 L.Ed. 462.

Respondent's contention that mandamus is the exclusive remedy is based on Ex parte Burr, 9 Wheat. 529, 6 L.Ed. 152; Ex parte Secombe, 19 How. 13, 15 L.Ed. 565; Ex parte Bradley, 7 Wall. 364, 19 L.Ed. 214; Ex parte Robinson, 19 Wall. 513, note, 22 L.Ed. 205; and Ex parte Wall, 107 U.S. 265, 2 Sup.Ct. 569, 27 L.Ed. 552. What is said to be the essential holding is found in Ex parte Bradley, in which the opinion, in demonstrating that mandamus will lie because there is no other adequate remedy, says:

'The order disbarring them or subjecting them to fine or imprisonment is not reviewable by writ of error; it not being a judgment in the sense of the law for which this writ will lie.'

This pronouncement applies as well to orders inflicting fine or imprisonment as to orders of disbarment; and, as to the former, the reference must be to punishments inflicted in contempt proceedings. Hence these decisions amount only to holding that neither appeal nor writ of error would lie to enable the Supreme Court to review contempt or disbarment orders. This is clearly true, since the jurisdiction of the Supreme Court, on appeal or writ of error, was always limited to 'civil actions where the matter in dispute exceeds the sum or value of' a certain amount (section 13, c. 20, 1 Stat. 565, Act of Sept. 24, 1789; R.S. Sec. 691), until the Act of March 3, 1891, c. 517, 26 Stat. 828 (U.S. Comp. St. 1901, p. 549), section 6 of which substituted 'in all cases' for 'in civil actions,' but retained a minimum value limitation. The effect of these limitations was that the court had no power to hear, on writ of error, any matter that did not involve a money value, and hence no power to review criminal cases (U.S. v. More, 3 Cranch, 159, 173, 2 L.Ed. 397; O'Neal v. United States, 190 U.S. 36, 38, 23 Sup.Ct. 776, 47 L.Ed. 945. Clearly, therefore, a decision that a writ of error to review disbarment did not lie from an inferior court to the Supreme Court, under the statutes involved in the foregoing cases, is not at all inconsistent with the conclusion that such a matter is within the grant (in this respect unrestricted) of appellate jurisdiction to the Circuit Courts of Appeals by the act of 1891 and the present Judicial Code.

We find no exact precedent. The Circuit Court of Appeals for the Ninth Circuit heard such a case on writ of error (Cobb v. U.S., 172 F. 641, 96 C.C.A. 477), but the precise point was not made (Barnes v. Lyons, 187 F. 881, 886, 110 C.C.A. 15). In the state courts, there is a multitude of cases. Review of disbarment orders has been had by writ of error, by appeal, by mandamus, and by certiorari, often without any discussion as to the proper remedy, and often evidently by virtue of special statutory provisions. We get no help from these decisions, save as demonstrating the universality of some suitable appellate remedy.

The choice of method, as between appeal and writ of error, is not clear, but we think the analogy is closer to contempt proceedings than to the deportation hearing, and it is clear that neither the hearing nor the final order was distinctively on the equity side of the court or involved a controversy within ordinary equitable jurisdiction. We therefore hold that error, and not appeal, is the proper remedy. Parish v. Ellis, 16 Pet. 451, 454, 10 L.Ed. 1028; Ormsby v. Webb, 134 U.S. 47, 65, 10 Sup.Ct. 478, 33 L.Ed. 805; Rode & Horn v. Phipps (C.C.A. 6) 195 F. 414, 419, 115 C.C.A. 316. It follows that the appeal is dismissed, and the motion to dismiss the writ of error is denied.

Before reaching the merits, we must also meet another preliminary question, and this is an objection urged by respondent. He says that charge 1 did not amount to an allegation of the original offenses, but only that he had been, by the Ohio Supreme Court, convicted of these things. Hence he insists that his demurrer to this charge should have...