State ex rel. Grievance Committee v. Woerndle

McCOUET, J. This is a disbarment proceeding. The members of the Grievance Committee of the State Bar Association and the members of the Grievance Committee and Chancellors of the Multnomah Bar Association join in presenting and prosecuting the accusation against the defendant. By a demurrer interposed thereto, defendant asserts that the facts alleged in the accusation do not disclose any legal grounds for his disbarment. — 464 — It is alleged in the accusation that the defendant was horn in Germany in the year 1880, and came to this country in the year 1897, and was on the twenty-third day of August, 1904, hy order of a competent court, admitted to full citizenship in the United States of America; that defendant is and has been since the year 1910 an attorney at law, residing in the City of Portland, Multnomah County, Oregon, and admitted to practice in the Supreme Court of the State of Oregon; that in the year 1914, defendant applied in writing to the Secretary of State of the United States for a passport, and directed that upon issuance of the passport applied for, the same be sent to Joseph Woerndle, care of Waldorf-Astoria Hotel, New York; that defendant accompanied his application for a passport with a certificate of his citizenship and the fee required by law, together with an affidavit, subscribed and sworn to by him before a notary public, which affidavit is set out in the accusation. It is further alleged in the accusation that pursuant to the application made by defendant, a passport was duly and regularly issued about October 9, 1914, to Joseph Woerndle by the proper officers of the Department of State and was sent by them as directed to the said Joseph Woerndle, care of Waldorf-Astoria Hotel, New York; that the passport so issued and delivered was thereafter called for and delivered to Hans W. Boehn, who, with the consent and connivance of defendant, took and assumed the name of Joseph Woerndle; that for the purpose of aiding Boehn in perpetrating the deception mentioned and those later carried out by him, defendant delivered to Boehn a patent for lands that had been issued to defendant; that at and long prior to Octo — 465 — ber 3, 1914, the date of the application of defendant fur a passport, Hans W. Boehn, above mentioned, was a citizen of the German empire and a subject of its ruler, and was a resident and inhabitant of Multnomah County, State of Oregon; that on October 3, 1914, and for some time prior thereto, a state of war existed between the Imperial German government, allied with the Imperial and Royal Austro-Hungarian government, and the Republic of France allied with the Kingdom of Great Britain and Ireland, the Kingdom of Belgium and the Imperial government of Russia; that Hans W. Boehn was an officer of the German army, and from October 3, 1914, and thereafter, was acting as agent of the Imperial German government in protecting its interests and furthering its warfare against countries with which the United States, as a nation, was at peace, but with which the Imperial German government and Imperial and Royal Austro-Hungarian government were at war, which facts were known to the defendant; that at the time the defendant prepared, signed and swore to the affidavit presented by him to the Department of State, neither the affidavit nor the application for passport were made or filed for the purpose of enabling defendant to go abroad temporarily, or at all, but were made and filed by defendant with the intention and purpose of supplying documents- and evidence to Hans W. Boehn that would enable the latter to travel in safety from New York to Berlin, Germany, and return, under the protection of the government of the United States, and that the said Hans W. Boehn did use the passport, so issued to defendant, for the purposes mentioned, and that by virtue of, the passport so iss.ued, and the passports thereafter issued to Hans W. Boehn upon applications made by — 466 — him in the name of Joseph Woerndle, and supported by the citizenship papers and land patent of defendant, Hans W. Boehn traveled safely in various European countries then at war with the Imperial German government, in which the said Hans W. Boehn could not have traveled without arrest and incarceration as a prisoner of war; and that thereby defendant openly and knowingly aided and assisted Hans W. Boehn in perpetrating frauds upon the government of the United States in securing its protection abroad for one not a citizen thereof, and in perpetrating frauds upon other nations and countries with which the United States was at peace, and the Imperial German government and its allies were at war. It is made the duty of the Supreme Court to disbar any member of the bar of this state upon proper proceedings for that purpose, “ * # whenever it shall appear to that court that his conduct has been such that if he were then applying for admission to the bar his application should be denied.” Section 1091, Or. L. The above section of the Code is a statutory declaration of the power inherent in every court to strike the name of an attorney from its roll, who has been guilty of conduct or acts committed inside or outside of his professional employment, which show him to be corrupt, dishonest or untrustworthy: State v. Winton, 11 Or. 456 (5 Pac. 337, 50 Am. Rep. 486); Ex parte Mason, 29 Or. 18 (43 Pac. 651, 54 Am. St. Rep. 772). At the date that defendant applied for a passport, it was not a crime, nor was it regarded as immoral or corrupt for citizens of the United States, including attorneys at law, who were born in Germany, to sympathize with the German cause in the war, or — 467 — even to favor and support that cause by overt acts which were not criminal. The allegations of the accusation which disclose that in 1914 and 1915 the defendant sympathized with the cause of Germany in the late war and assisted Hans W. Boehn to travel abroad in the interest of that cause may be disregarded, except in so far as those acts of the defendant tend to show the truth or falsity of the statements contained in the affidavit made by defendant and which accompanied his application for a passport. The affidavit which the defendant submitted to the State Department in connection with his application for a passport was one required by the laws of the United States. The statutes provide: “The Secretary of State may grant and issue passports * * under such rules as the President shall designate and prescribe for and on behalf of the United States. * * ” Section 7623, U. S. Gomp. Stats. “No passport shall be granted or issued to or verified for any other persons than those owing allegiance, whether citizens or not, to the United States.” Section 7624, U. S. Comp. Stats. The President of the United States, under the authority given him by the statute, adopted and promulgated rules governing applications for passports, among which rules, as they existed in the year 1914, were the following: “A citizen of the United States desiring to procure a passport must make a written application, in the form of an affidavit, to the Secretary of State.” “In this country the affidavit must be attested by an officer duly authorized to administer oaths. If he has no seal, his official character must be authenticated by certificate of the proper legal officer.” — 468 — “Every applicant is required to state the date and place of his birth, his occupation, and the place of his permanent residence, and to declare that he goes abroad for temporary sojourn and intends to return to the United States with the purpose of residing and performing the duties of citizenship therein.” The American Passport issued by the Department of State (1898), pp. 60, 61. The rules so adopted and promulgated prescribed the form of affidavit which the applicant for a passport was required to make. The affidavit made by defendant conformed to the regulations and likely was made upon a blank form furnished from the office of the Secretary of State. Defendant declared and stated in that affidavit: “I am about to go abroad temporarily; * * I intend to return to the United States within one year for the purpose of residing and performing the duties of citizenship therein.” The statement mentioned was material and an indispensable prerequisite to the issuance of the passport; it was expressly required by the rules and was incorporated in the prescribed form of affidavit. The accusation in effect charges that defendant did not believe the foregoing statement made and sworn to by him to be true. Section 125 of the federal Penal Code (U. S. Comp. Stats., § 10295), defines perjury as follows: “Whoever, having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, shall wilfully and contrary to such oath state or subscribe any material matter which he does not believe to be true, is guilty of perjury, * * ” — 469 — Where a department of the federal government is authorized by statute to designate and prescribe rules for the administration of powers and authority given by statute, such department has authority to make regulations which are not inconsistent with law and are appropriate to the performance of its duties, and when by valid regulations the department requires that an affidavit shall be made before an officer otherwise competent, that officer is authorized to administer the oath within the meaning of Section 125 of the Penal Code, and under such a regulation, a notary public of one of the states is an officer authorized by law to administer the required oath: United States v. Smull, 236 U. S. 405 (59 L. Ed. 641, 35 Sup. Ct. Rep. 349); United States v. Morehead, 243 U. S. 607 (61 L. Ed. 926, 37 Sup. Ct. Rep. 458); Caha v. United States, 152 U. S. 211, 218 (38 L. Ed. 416, 417, 14 Sup. Ct. Rep. 513); United States v. Bailey, 9 Pet. (U. S.) 238, 255 (9 L. Ed. 113, 120, see, also, Rose’s IT. S. Notes); Patterson v. United States, 202 Fed. 208 (120 C. C. A. 650). In view of the decisions of the Supreme Court of the United States above cited, the accusation charges that defendant committed perjury in connection with his application for a passport, and while the allegations of the accusation do not conform to the strict technical requirements of an indictment, they are nevertheless sufficient as a charge of perjury in a proceeding for disbarment, where “the court will look to the substance of the charge rather than the technical accuracy with which it is presented.” State ex rel. Multnomah County Bar Assn. v. Greenfield, 93 Or. 407 (162 Pac. 858). An attorney who commits perjury, whether committed inside or outside of his professional employ — 470 — ment, is subject to suspension or disbarment, without his having been first indicted and convicted: State v. Winton, 11 Or. 456 (5 Pac. 337, 50 Am. St. Rep. 486); State v. Cowing, 26 Or. 572 (38 Pac. 1090); State v. Graves, 73 Or. 331 (144 Pac. 484, L. R. A. 1915C, 259); People v. Smith, 290 Ill. 241 (124 N. E. 807, 9 A. L. R. 183, and note pp. 189, 200). An accusation is sufficient which alleges the facts constituting such perjury. The demurrer interposed by defendant is therefore overruled, and if defendant desires to fife an answer to the accusation, he may do so on or before October 25, 1922. Demurrer Overruled. Footnotes [4] Commission of perjury as grounds for suspension or disbarment of attorney, see note in 9 A. L. R. 200. [5] Conviction of crime as condition precedent to disbarment therefor, see notes in 114 Am. St. Rep. S39; 8 Ann. Cas. 847.