State v. Fourchy

The opinion of the court on the exceptions was delivered by Monroe, J. On the merits by Monroe, T. Statement of ti-ie Case. Monroe, J. This is an original proceeding to disbar the defendant for professional misconduct. The petition alleges, in substance, that Article 85 of the present State Constitution confers on this court exclusive jurisdiction in all matters “touching professional misconduct of members of the bar, with power to disbar under such rules” as may — 745 — be adopted; that, under the authority thus conferred, this court, in June, 1898, amended its rules so as to create a commission of five lawyers and to impose upon said commission the duty of examining applicants for admission to the bar and of investigating complaints made against members of the bar touching professional misconduct; and, in the event of its finding probable cause for disbarment, making it the further duty of said commission to certify the same to the Attorney General, upon whom is imposed the obligation of filing in this court proceedings to disbar the offending attorney; it being also the duty of said commission to designate certain of its members to be associated with the Attorney General in such prosecution. The petition further alleges that the members of the commission so created accepted the trust and entered upon the duties thereof, and that charges having been made before them accusing Paul Louis Fourchy of professional misconduct, the facts supporting the same were investigated, with the result that the commission reached the conclusion that probable cause for disbarment existed and certified such conclusion to the Attorney General, who, in discharge of the obligations imposed upon him by the rule hereinbefore referred to, and by Ms oath of office, presents this petition, and charges — ■ That Paul Louis Fourchy was admitted to the bar of Louisiana March 28th, 1884, and took the oath, signed the roll of attorneys in this .court and entered upon the practice of law. That, as such attorney, he received, on or about April 5th, 1895, $1,163.73; on September 9th, 1895, $650.00; on July 31, 1896, $1,667.75, and that he embezzled said sums and was indicted therefor by the Grand Jury; “that on March 25th, 1898, the said Paul Louis Fourchy was indicted by the Grand Jury of the Parish of Orleans in suit No. 27,273 of the docket of the Criminal District Oourt, charging him with having embezzled the sum of three hundred dollars on May 18, 1895,” and that, in December, 1898, said Fourchy, “as attorney for the sue-'cession of one J. M. Modtler and wife,” under a pretense that he needed money to conduct a lawsuit, fraudulently induced John L. Modtler to sell certain real estate .in the belief that he was merely mortgaging the same, and that said sale was thereafter annulled as fraudulent by judgment of the Civil District Oourt. Eelator further alleges that “all or most” of said indictments were “nolle prossed,” but that said Fourchy was, nevertheless, guilty of professional misconduct; that his actions have brought great scandal on the legal profession and the ad — 746 — ministration of justice in this State, and that he should, therefore, be deprived of the right hereafter to practice law in Louisiana. The prayer is that, after citation and hearing, the said Eourchy be found guilty of gross professional misconduct and punished by disbarment and withdrawal of his license to practice law; To this petition the defendant excepts upon the following grounds, to-wit: 1. That the petition discloses no cause or right of action. 2. That, as the petition alleges that the defendant has already been called upon to answer to all of the criminal charges mentioned, and as the same have been nolle prosequied by the State, the State is estopped with respect to the present prosecution, which is in violation of Article 9 of the Constitution of 1898; Article 5 of the Constitution of 1879, and Article 5 of the amendments to the Constitution of the United States. 3. That this court is without jurisdiction of an original proceeding in prosecution of an offense said to have been committed before the adoption of the Constitution of(1898 and the rules adopted thereunder; that respondent’s rights with respect to the trial of such offenses were fixed by Act 129 of 1896, and that a trial without a jury, and in the manner proposed, would be in violation .of Article 7 of the amendments to the Constitution of the United States and of Article 1, Sec.tion 1®, of said Constitution. 4. That 'the rules adopted by this court did not authorize an ex parte investigation by the committee created by the court, and that respondent had the constitutional right to be heard before said body before action affecting him was taken. 5. That the offenses ■ mentioned in the petition are barred by the prescription' of six and twelve months. Opinion. The exception of “no cause or right of action” is founded, in the main, upon the theory that, in view of the prohibition in the Federal Constitution against the passage of bills of attainder and ex post facto laws, the defendant is not liable to be' disbarred for the act3 charged against him until he has first been convicted thereof by means of a criminal prosecution, and hence, that, in failing to allege such previous conviction, the petition fails to disclose either a cause or a right of action. — 747 — The generally accepted doctrine in England and in this country is that the power to disbar an attorney is possessed by and is inherent in all courts which have authority to admit attorneys to practice, and wherever there has been no legislation regulating the matter, it has, necessarily, been left to the courts to determine what manner of ease should be made out in order to justify a judgment of that character. ■ In 1810 this court disbarred an attorney upon a charge of having fraternized with the negro insurrectionists in St. Domingo in 1793, before his admission to the bar here. Dormenon’s Case, 1st M. 129. Thereafter, in 1823 and 1826, the General Assembly adopted certain legislation upon the subject of the disbarment of attorneys, which survives, in part, as Sections 119 and 120 of the Eevised Statutes. Those sections, so far as it is necessary to quote them, read as follows, to-wit: “Sec. 119. If any attorney at law shall recover any sum of money for his client and shall neglect or refuse to pay it over when demanded, without any legal ground for such refusal, he shall, on conviction, be 'immediately erased from the list of attorneys. * * * “Sec. 120. If any attorney shall commit any fraudulent practice in any court of this State, or shall betray the interest confided to him by his client, he shall be deemed guilty of a misdemeanor and, ■upon conviction thereof, shall be stricken from the list of attorneys.” ■ In the two eases arising under the dominion of this law it was held that an attorney’s license could not be withdrawn and annulled unless on conviction “in a proceeding by information in a criminal court.” Chevalon and Wife vs. Gustavus Schmidt, 11 R. 91; Turner vs. Walsh et al., 12 R. 363. And matters remained in that condition until July 9th, 1896, when Act Eo. 129 of the session of that year became a law. It reads as follows: “That if any attorney at law in this State shall be convicted of any felony or shall be guilty of a gross professional misconduct, he may be summoned before the District Court * * * by a petition signed by not less than ten attorneys at law * * * setting forth * * * the felony of which he has been convicted or the professional misconduct complained of * * * and if, upon trial, the allegations of such petition shall be proven, the court shall proceed to render ■judgment reprimanding, suspending from practice or disbarring such attorney.” * * * This statute was brought here for construction in the case of State ex rel. Adams vs. Judge, 49 Ann. 1013, and it was held that it 'did — 748 — not have the effect of repealing the provisions of the Revised Statutes, but authorized a proceeding to disbar in the Civil Court as an additional means of accomplishing that result. Mr. Justice Miller, as the organ of the court, said: “The Legislature, guided by the judicial interpretation that under existing legislation the attorney could be reached only by criminal proceedings for misconduct in his profession, it is clear to our minds, proposed to supply another method, by civil proceedings.” And the application that the Civil District Court be prohibited from going on with the trial of the case begun under the authority of the Act of 1896, was accordingly denied. In the following year (May 12th, 1898) the present State Constitution was adopted. Article 85 of that instrument provides that the “Supreme Court * * * shall have exclusive original jurisdiction in all matters touching the professional misconduct of members of the bar, with power to disbar, under such rules as may be adopted by the court.” And, with the view of carrying this provision into effect, this court, in June, 1898, adopted the following, as an amendment to its rules, to-wit: “That a commission of five lawyers shall be appointed, whose duty it shall be * * * and, in addition to those duties, said commission shall be charged with the special duty of investigating any complaints made against members of the bar touching professional misconduct; and, if said commission shall be of the opinion that a probable cause of disbarment exists against said member of the bar, the said commission shall certify the facts to the Attorney General of the State, and it shall thereupon be his duty to file in this court a suit to disbar the offending attorneys; and said bar commission shall designate one or more of its members to associate with and assist said Attorney General in the said prosecution. All of said proceedings shall be in the name of the State of Louisiana at the cost of the defendant, if condemned, otherwise without costs.” , It is claimed that the present action has been brought agreeably to the provisions of the Constitution and of the rule thus adopted. The defendant, as we have seen, is charged with having in his capacity of attorney embezzled three distinct sums of money, on April 5th and September 9th, 1895, and July 31st, 1896, respectively, and to have practiced a fraud of another kind in his said capacity in December, 1898. With regard to one of his alleged offenses, the charge, as formulated — 749 — in the petition, is “That on March 25th, 1898, the said Paul Louis Fourehy was indicted by the Grand Jury of the Parish of Orleans in suit No. 27,275 of the docket of the Criminal District Court, charging him with having embezzled the sum of three hundred dollars on' May 18th, 1895.” It is not alleged that the defendant embezzled the three hundred dollars referred to, but only that he was so charged by means of an indictment; nor is it alleged that he was indicted for haying embezzled said sum in his capacity as an attorney, or that he was convicted of the embezzlement. Whether, therefore, this charge be considered with regard to the Eevised Statutes, or the Act of 1896, or both, it sets forth no cause of action. The offenses alleged to have been committed upon April 5th and September 9th, 1895, were, by reason of those dates, under the dominion of the law as contained in the Eevised Statutes, as the only law applicable to the subject then in force; and the defendant claims that any" law subsequently adopted, which- would in its relation to said offenses have the effect of altering the situation to his disadvantage, or which undertakes to punish for acts already committed, is to that extent an ex post facto law, or a bill of attainder, and void. It is claimed on behalf of the State that the Act of 1896 and the provisions of the present Constitution, taken in connection with the rule of court adopted pursuant thereto, as relates to the previously committed offenses, as well as to those subsequently committed, are competent exercises of the power to regulate procedure; and, moreover, that this being a civil suit, the provisions of the Federal Constitution upon the subject of ex post facto legislation are inapplicable. It is well settled that a person accused of crime is not entitled, of right, to be tried in the exact mode, in all respects, that may be prescribed at the time of the commission of said crime, and that he is not entitled, of right, to be tried before the court having jurisdiction of the crime when committed, but that the Legislature may prescribe a new and different mode of procedure and vest jurisdiction in a new and different court. But it is equally well settled that the law making power cannot in the exercise of the authority to regulate the mode of procedure whereby and to determine the court wherein a crime shall be prosecuted deprive the accused of any substantial rights which he possessed when the crime was committed, or add anything to the bur-déns and penalties which were then imposed upon him with respect — 750 — thereto. This distinction, was fully recognized in Kring vs. Missouri, 107 U. S. 331; Thompson vs. U. S., 170 U. S. 343; State vs. Ardoin, 51 Ann. 169, and numerous other cases, in which it was claimed that the laws complained of were competent exercises of the authority to regulate procedure, but in which the Supreme. Court of the United States and this court held that the claim was not well founded, and that the laws in question, as sought to be applied, were incompetent exercises of power, for the reason that, in regulating the procedure, they altered the situation to the disadvantage of the accused and deprived him of substantial rights. There seems to be some force in the contention that the law invoked by the plaintiff, if given the effect claimed for it, will work a similar result. It purports to authorize the disbarment of the defendant by means of a civil suit in addition to the criminal prosecution already provided for the accomplishment of that end; whereas, when the offenses with which the defendant is • charged are said to have been committed, he eould only have been disbarred upon and after such conviction. No civil action at that time could, therefore, have been maintained, save upon the basis of previous conviction, and hence, an exception of no cause of action must have prevailed as against such civil action where the previous conviction was not and could not have been alleged; and it results that, unless the exception as herein filed is maintained, it must be for the reason that a cause of action has been supplied by legislation, since no previous conviction is or eould be alleged. But the learned counsel for the State say that, this being a civil proceeding, the provisions of the Federal Constitution on the subject of ex post facto laws have no application. Supposing this to be true, we have, nevertheless, this situation : In 1893, when the particular acts which we are now considering are said to have been committed, they did not constitute a cause for the disbarment of the defendant, save upon conviction in a Criminal Court, but it is said that by virtue of legislation subsequently adopted the .defendant can now be disbarred for such acts by means of the present civil action, without previous conviction. In other words, it is claimed that under the legislation invoked he can be disbarred for the acts, themselves, committed before the adoption of that legislation, though under the law in existence when such acts were committed he could have been disbarred only upon being convicted of the crime which those acts constituted. The principle involved is the same as that which 'received consideration in the Supreme Court of the — 751 — United States in the cases of Cummings vs. Missouri, 71 U. S. (4 Wallace) 277; and ex parte Garland, Ib. 333, in which it was held that a bill of attainder is a legislative act which inflicts punishment without a judicial trial; that a law which imposes punishment for an act which was not punishable at the time it was committed, or imposes additional punishment to that prescribed is an ex post facto law, and that the constitutional inhibition against the adoption of such legislation applied to the cases of a priest, who was denied the right to preach and teach, and to a lawyer who was denied the right to practice his profession, because of acts which did not authorize such denial at the time they were committed. We take the following from the case last above mentioned, to-wit: “Exclusions from any .of the professions, or any of the ordinary avocations of life, for past conduct, can be regarded in no other light than as punishment for such conduct. All enactments of this kind are subject to the constitutional inhibition against the passage of bills ,of attainder, under which general designation they are included.” These decisions, we think, correctly interpret the Constitution of the United States and are applicable to the particuldr branch of the instant case which is now under consideration. It may be remarked in this connection that, whilst to deprive a man of the right to practice his profession operates as a “punishment,” and the word is used in the foregoing quotation in that sense, nevertheless, it is not the purpose of the action to disbar an attorney, that he should be punished, but merely that the court should thereby rid itself, of an unworthy officer. Our conclusion, then, is that quoad the particular offenses now under .consideration, the exception is well taken. The date of the remaining charge of embezzlement is said to have been July 21, 1896, after the Act No. 129 of that year became a law'. But the counsel for defendant claims that under said act, as under the .provisions of the Eevised Statutes, a conviction is a prerequisite to disbarment’, where the offense charged amounts to a felony. The language of the act whiqh is relied on as supporting this view, reads: “That .if any attorney at law of this State shall be convicted of ány felony, nr shall be guilty of gross professional misconduct, he may be summoned,” etc. There can be no doubt but that the embezzlement by ■an attorney of the funds of his client which come into the possession ,of such attorney is “gross professional misconduct,” and unless that expression, as used in the act, is to be deprived of its principal value, — 752 — it must be held to include such, embezzlement, and to include any other felony committed by an attorney in violation of specific professional obligations. Upon the other hand, the first paragraph of the act, it may reasonably be presumed, was intended to make it clear that an attorney who shall be convicted of “any” felony (i. e., whether committed in his character of attorney or otherwise) may, by reason of such conviction, be disbarred in a civil action — thus setting at rest the question of liability of attorneys for disbarment for misconduct amounting to felony which does not involve their professional obligations. This view of the matter is strengthened by reference to the adjudged cases, from which it appears that, whilst conviction is not a prerequisite to disbarment in case of a felony committed by an attorney, as such, there is some diversity of opinion as to whether it should or should not be so considered where the felony has no connection with the professional obligations of the attorney. In ex parte Wall, 107 U. S. 265, the Supreme Court of the United States reviewed the English and American cases upon the subject, and stated the conclusion reached as follows, to-wit: “The rule to be deduced from all the English authorities seems to be this: That an attorney will be struck off the roll if convicted of felony, or if convicted of a misdemeanor involving want of integrity, even though the judgment be arrested or reversed for error; and, also, without a previous conviction, if he is guilty of gross misconduct in his profession, or of any acts which, though not done in his professional capacity, gravely affect his character as an attorney; but in the latter case, if the acts charged are indictable, and are fairly denied, the court will not proceed against him until he has been convicted by the jury, and will in no' case compel him to answer under oath to a charge for which he may be indicted. This rule has, in the main, been adopted by the courts of this country, though special proceedings are provided for by statute in some of the States, requiring a formal information under oath to be filed with regular proceedings and trial by jury.” * * * * * * * “But, where the acts charged against an attorney are not done in his official capacity and are indictable and not confessed, there has been a diversity of practice on the subject, in some cases it being laid down that there must be a regular indictment and conviction before the court will proceed to strike him from the roll; in others, such previous conviction being deemed unnecessary.” — 753 — In the course of the reasoning which led to these conclusions the authority of various judges and courts was cited, and among others the following, to-wit: “Lord Abinger said that as long as he had known Westminster Hall he had never heard of such a rule as that an attorney might not be struck off the roll for misconduct in a cause, merely because the offense imputed to him was of such a nature that he might have been indicted for it, but he said that in the case of an application calling upon an attorney to answer the matters of an affidavit he had known Lord Kenyon and Lord Ellenborough frequently to say, ‘You cannot have a rule for this purpose because the misconduct you impute to the man is indictable, but you may have one to strike him off the roll.’ ” We therefore conclude that in the adoption of the Act of 1896, whilst it was no doubt within the contemplation of the General Assembly that an attorney might be disbarred upon conviction of any felony, it was not intended to require such conviction in cases where the act charged amounts to gross professional misconduct as well as felony; and hence, that in charging the defendant with having in his professional capacity embezzled a sum of money, after the Act of 1896 became a law, the State sets forth a cause of action, though no previous conviction is alleged. As to the “right” of action, the conclusion stated disposes of the question, in so far as concerns offenses charged as having been committed before the passage of the Act of 1896; since there being no cause of action with respect to such offenses, there can be no^ right of action. But with regard to offenses committed since the passage of the act, the case is different. It was competent for the General Assembly to authorize ten attorneys to bring suits to disbar, as was done in the Act of 1896, and we do not understand this proposition to be disputed. That being the case, it was equally competent’for this court, acting under the direct grant of authority from the Constitution, to authorize such suits to be brought as the one now under consideration has been brought. This action, in so far as it affects the particular offense which the defendant is charged to have committed in July, 1896, between the date of the adoption of the Act of 1896 and that of the adoption of the Constitution, merely provides for the bringing of the suits in this court by the Attorney General, after a certain investigation and report by a committee of lawyers; whereas, the pre-existing law authorized the bringing of such suit by any ten attorneys residing — 754 — in the district, in the District Court of the defendant’s domicile. This is in the nature of remedial legislation, which deprives the defendant of no substantial right and affords no just cause of complaint. Kring vs. Missouri, 107 U. S. 221; Cassard vs. Tracy, 52 Ann. 833. It is said that the State is estopped to prosecute the suit by reason of the fact, set up in the petition, that the criminal prosecution for the offenses with which the defendant is here charged were all, or most all, of them "nolle grossed.” We cannot concur in this view. It is not alleged that all the criminal prosecutions were nolle grossed, and, if they were, such action committed the State to nothing, so far as the questions presented in this suit are concerned. III. It is said that quoad every offense alleged to have been committed after the passage of the Act of 1896 and before the adoption of the present Constitution, defendant is entitled to a trial by jury. In support of this claim, the learned counsel refers us to the language of the Act of 1896, which, after providing that any attorney at law who shall be convicted of felony or who shall be guilty of gross professional misconduct, may be summoned before the District Court by a petition, signed “ by not less than ten attorneys,” etc., proceeds thus: “ Said attorney shall be cited to answer thereto, as in ordinary proceedings, and if, upon trial, the allegation of such petition shall be proven, the said court shall proceed to render judgment, reprimanding, suspending from practice, or disbarring,” etc. It thus appears that the attorney is to be cited, as in ordinary cases, but, if, upon the trial, the allegations 'of the petition are proven, the sentence of the court follows immediately, and there is no suggestion that it is contingent upon the verdict of the jury. Nor can any good reason be conceived why it should be so since a method of disbarring attorneys by means of trials by jury has already been provided and is still in existence, and the purpose of the act of 1896 is to provide another method, more in consonance with the relations existing between attorneys and courts, which relations have been thus defined. “They” (attorneys) “are officers of the court, admitted as such, by its order, upon evidence of their possessing sufficient legal learning and fair private character * • * *. The order of admission is the judgment of the court that the parties possess the required qualications as attorneys and are entitled to appear as such and conduct — 755 — causes therein. Erom its entry the parties became the officers of the court and- are responsible to it for professional misconduct.” Ex parte Garland, 4th Wallace, 333. We are, therefore, of opinion that the Act No. 129 of 1896 does not contemplate trial by jury, and we are equally of opinion that the rule adopted by this court, agreeably to Article 85 of the Constitution, with regard to the institution and prosecution of suits to disbar attorneys, does not contemplate that such suits should be tried by juries. IY. The defendant makes the objection that he was not called before the commission appointed under the rule of this court and was not afforded an opportunity to be heard, and that he has thereby been deprived of certain constitutional rights. The answer to this seems to bo that he is now afforded the opportunity which he desires. The investigation imposed upon the commission was merely for the purpose of determining whether a complaint should be made against the defendant, and it was optional with the commission to conduct that investigation as the members saw fit, just' as it would have been optional with the ten attorneys mentioned in the Act of 1896 to consult together and bring suit without consulting the defendant, and just as it was optional with the Grand Jury to indict the defendant without having heard him. The grant of authority to this court, it will be remembered, comes direct from the Constitution, and the court is thereby vested with “exclusive original jurisdiction in all matters touching the professional misconduct of members of the bar, with power to disbar, under such rules as may be adopted by the court.” Acting in the exercise of this authority, the court adopted the rule which has already been mentioned and under which the commission of lawyers was created and is 'discharging its functions. We are not convinced that the rule is unauthorized or unreasonable, and it is not claimed that the commission has gone beyond it. This objection is, therefore, not well taken. Y. The defendant pleads the prescription of six and twelve months declared by Section 986 of the Revised Statutes as amended by Act No. 50 of 1894. This prescription applies exclusively to criminal prosecutions, though, no doubt, if the right to maintain the present action depended wholly upon the result of criminal prosecutions for — 756 — the offenses with which the defendant is charged, and it appeared that such prosecutions were barred by prescription, the action, whether prescribed or not, would necessarily fall. But such is not the case. This proceeding is entirely independent of any criminal prosecution, and might have been instituted and may be maintained, although all such prosecutions, on account of the matters set forth in the petition, had been previously prescribed. As was said in the case of State ex rel. Adams vs. Judge (supra), the Legislature in authorizing proceedings of this nature “proposed to supply another method, by civil proceedings,” of disbarring attorneys. And to the method, by civil proceedings, thus applied, the rule of prescription, which relates to civil rather than that which relates to criminal actions, is to be applied. The counsel for defendant claims that if this view be adopted, the action is nevertheless barred by the prescription of one year, as declared by O. C. 3536, against actions resulting from offenses. This is to assume that the cause of action arises ex delicto and an inquiry as to what it meant by that term is rendered necessary. In Kohn vs. Carrollton R. R., 10 Ann. 719, Mr. Justice Spofford, as the organ of this court, citing the authorities of Marcade, distinguished between damages ex delicto and damages ex contractu, by saying that “the former flow from the violation of a general duty, the latter from the breach of a special obligation.” Accepting this definition, the question is, has this action been brought to disbar the defendant because of an alleged violation of a general duty, or of an alleged breach of a special obligation ? The relator, after setting forth the various acts of misconduct with which the defendant is charged, proceeds as follows: “That he has been informed that all, or most, of the above criminal suits against the said Paul Louis Fourchy have been nolle prossed, but notwithstanding this fact, the said Fourchy has been guilty of professional misconduct in all of said eases and his actions have brought great scandal upon the profession of the law and the administration of justice in Louisiana, and that the said Paul Louis Fourchy should be deprived of the right to practice law hereafter in Louisiana. Wherefore relator prays * * * judgment decreeing the said Paul Louis Fourchy guilty of gross professional misconduct, and that be be punished by disbarment and withdrawal of his license to practice law,” etc. The reason, then, for the withdrawal of the license issued to the — 757 — defendant to practice law in the courts of this State, is stated to be that he “has been guilty - of professional misconduct * * * and his actions have brought great scandal on the profession of the law and the administration of justice in Louisiana.” But the obligation which rests upon an attorney, acting in that capacity, to conduct himself honestly and in such manner as to avoid bringing scandal upon the profession to which he has been admitted, and upon the courts of which he is an officer, is not the general duty which the ordinary layman owes to the public at large, but a special obligation which the attorney has voluntarily imposed upon himself, by his oath and by the acceptance of his license, in favor of his profession, and of the courts as administrators of justice. And the action to disbar him is predicated upon the breach of that obligation, and has for its purpose, not the punishment of the defendant, as suggested by the prayer of the petition, but the purging of the courts of an officer, who obtained his appointment upon the faith of his supposed good character and of his assurance that it would be kept good, but who is charged with conduct which, under the law, constitutes a breach of the special obligation thus assumed by him. We have already seen from the language used by the Supreme Court of the United States in Ex parte Garland (supra) that attorneys are officers of the court, admitted upon evidence of their possessing sufficient legal learning “and fair private character,” and that, from the entry of the judgment making them officers of the court, they “are responsible to it for professional misconduct.” In a later ease, the same tribunal said, in considering the relations existing between an attorney and the courts in which he was admitted to practice, and with reference to a judgment of disbarment before it on appeal: “ The provisions of the Constitution which declare that no person shall be held to answer for a capital, or otherwise infamous, crime, unless on a. presentment or indictment of the Grand Jury; and that the trial of all crimes, except in the cases of impeachment, shall be by jury, have no relation to the subject in hand, * * * the constitutional privilege of trial by jury for crimes does not apply to prevent the courts from punishing its officers for contempt or from removing them in proper cases. Eemoval from office for an indictable offense is no bar to indictment. The proceeding is in its nature civil, and collateral to any criminal prosecution by indictment. The proceeding is not for the purpose of punishment, but for the purpose of preserving the courts of justice — 758 — from the administration of persons unfit to practice in them.” And the court goes on to say that whilst the power to disbar should bo exercised with great caution, yet that in a proper case “the courts ■ought not to hesitate to protect themselves from scandal and contempt, and the public from prejudice, by removing grossly improper persons from participation in the administration of the laws.” Ex parte Wall., 107 U. S. 265. It follows from this that the, prescription invoked is inapplicable, since this action does not arise from an offense or qwcm-oifense, save in the’Sense that, by the commission of the offenses with which he is charged, the defendant, if the charges be sustained, has violated a special lobligatioin, contractual in .its nature, in consideration, of which he was granted the license with which it is now proposed, by reason of such violation, to withdraw. The obligation which the defendant has violated, if the charge against him be true, is that, whereby he undertook to conduct himself honestly as an attorney and to maintain the good character upon the faith of which he was admitted to the bar, and the only prescription applicable to the action growing out of such violation seems to be that of ten years. For these reasons, it is ordered, adjudged and decreed, that the exception of “no cause of action” be maintained in so far as it relates to charges of embezzlement of which the defendant is said to have been guilty in the year 1895, and that said charges be held to constitute no cause of action for the purpose of this suit. It is further ordered, adjudged and decreed, that, as to all other charges contained in the petition, said exception, and all other exceptions herein filed, including the plea of prescription, be, and the same are hereby overruled.