Garfield v. United States ex rel. Stevens

Mr. Chief Justice Shepard delivered the opinion of the Court: 1. The primary question involved in the several motions to dismiss the general and special appeals is, whether the Secretary of the Interior is entitled to prosecute the appeal from the judgment awarding the writ of mandamus, under the direction of his own, and the Department of Justice, without giving the bond required in ordinary cases; for, if he is not, the general appeal must be dismissed. Such dismissal would necessarily •carry with it the special appeals without regard to the questions raised in the motion to dismiss them. — 129 — The right to appeal without bond in this case is claimed under secs. 1000 and 1001, Rev. Stat., U. S. Comp. Stat. 1901, pp. 712, 713, which read as follows: Section 1000. “Every justice or judge signing a citation on any writ of error shall, except in cases brought up by the United States or by direction of any department of the government, take good and sufficient security that the plaintiff in error or the appellant shall prosecute his writ or appeal to effect, and, if he fail to make his plea good, shall answer all damages and costs where the writ is a supersedeas and stays execution, or all costs only where it is not a supersedeas as aforesaid.” Section 1001. “Whenever a writ of error, appeal, or other process in law, admiralty, or equity issues from or is brought up to the supreme court or the circuit court, either by the United States or by direction of any department of the government, no bond, obligation, or security shall be required from the United States, or from any party acting under the direction aforesaid, either to prosecute said suit, or to answer in damages or costs. In case of an adverse decision, such costs as by law are taxable against the United States, or against the party acting by direction, as aforesaid, shall be paid out of the contingent fund of the department under whose directions the proceedings were instituted.” 2. It cannot be doubted that this is an action at law the proceedings and judgment in which, under ordinary conditions, could only be reviewed on a writ of error. It comes here on appeal as that is the proceeding provided in all cases to review a judgment or decree of the supreme court of the District of Columbia, or any justice thereof, by sec. 7 of the act of February 9, 1893, creating the court of appeals of the District of Columbia. This appeal would seem, therefore, to come within the spirit of sec. 1000, Rev. Stat., though not within its strict letter. But it is unnecessary to express an opinion on this point, as it has been held that sec. 1001 authorizes an appeal from the supreme court of the District, by an officer representing the United States, without bond, when said appeal had been taken by direction of a department of the government. Leonard — 130 — v. Rodda, 5 App. D. C. 256, 265. That was an appeal prosecuted by the warden of the jail from a judgment, in a habeas corpus proceeding, ordering him to release a prisoner committed to jail by order of the police court. Mr. Justice Morris, delivering the opinion of the court, said: “It would be a strange requirement of law if, in the performance of his duty to the United States, and the defense exclusively of the public interests, he should be necessitated to give his individual bond for costs in the prosecution of an appeal in a case of habeas corpus. And it would have exceedingly strange consequences, if the rights of the public in such cases should be made to depend upon the warden’s willingness or ability tó give his individual bond.” And it was also said that sec. 1001 is applicable in the District of Columbia as well as elsewhere. See also Palmer v. Thompson, 20 App. D. C. 273, 277. We are asked to reconsider that decision, the contention being that the section is, by its terms, limited to writs of error and appeals in cases brought up to the supreme court or the circuit courts, and that the court of appeals is not included therein. This section was enacted long before the creation of the court of appeals, when appeals and writs of error were taken directly from the supreme court of the District to the Supreme, Court of the United States; and it cannot he denied that it expressly applies in all cases appealed from the court of appeals to the Supreme Court of the United States. Section 1000 was originally enacted in 1789, and, read in connection with sec. 1001, as it must be, it is plain that the broad purpose of the two is to secure the right of appeal without bond, in all cases involving a public interest, when the appeal shall he taken by direction of a department of the government. That general intent is not to be thwarted by the subsequent creation of the court of appeals as an intermediate appellate court between the supreme courts of the District and the United States; and it is given effect to substantially by sec. 2 óf rule X. 3. It is further contended that a bond is imperatively required by sec. 1282 of the D. C. Code. That section is the last one of the chapter regulating the procedure in mandamus cases, — 131 — and requires that, in case of appeal by the defendant, the court shall fix the penalty of the appeal bond necessary to be given to stay the execution or enforcement of the order appealed from. There is no such inconsistency between this section of the Code and secs. 1000 and 1001, Eev. Stat., as to warrant the conclusion that the latter are repealed by it, in so far as the District of Columbia is involved. The section of the Code, therefore, governs in all cases, save in the exceptional ones provided for by the others. 4. It is further contended that a proceeding for mandamus against the Secretary of the Interior is not such a case as comes within the provision allowing appeal without bond in a case brought up either by the United States or by direction of a department of the government. This is founded on the proposition that the performance of the duty required is one resting upon the person to whom' the writ is directed, and that the writ is aimed exclusively against him as a person, and does not reach the office. United States v. Boutwell, 17 Wall. 604, 21 L. ed. 721; United States ex rel. Bernardin v. Butterworth, 169 U. S. 600, 42 L. ed. 873, 18 Sup. Ct. Rep. 441; Roberts v. United States, 13 App. D. C. 38. This is undoubtedly true. If such an action was regarded as against the United States, in fact, it would not lie save by their express consent. At the same time, the interests affected by the action to be performed are those of the United States alone. The only way in which the interests of the officer are affected is his liability for costs. The act which he is directed to perform is an official act that can only be performed while he is in office. Upon his retirement from office before service of the writ, the latter becomes ineffectual. The effect was that, if he vacated the office, his successor could not be substituted as a party in his stead. The suit abates. Warner Valley Stock Co. v. Smith, 165 U. S. 28, 31, 41 L. ed. 621, 622, 17 Sup. Ct. Rep. 225. That was a suit to enjoin the Secretary of the Interior from assuming to exercise jurisdiction in regard to the disposition of certain lands, and to compel him to issue patents therefor to the complainant. The plaintiff failed in the supreme — 132 — court of the District and in the court of appeals, and took a further appeal to the Supreme Court of the United States. Secretary Smith having retired from office before a decision of the final appeal, the suit abated, and the court, so declaring, ordered the decree in his favor reversed and the bill to be dismissed. The court said that the main object of the bill was to compel the issue of patents, that the mandatory injunction prayed for was in effect equivalent to a mandamus, and that the reasons for holding a suit having this object to have abated, as to him, by his resignation, are as applicable to the bill in equity as to a petition for mandamus at common law. The mischief resulting from this doctrine, through frequent changes of officers pending litigation, was remedied by the act of February 8, 1899 (30 Stat. at L. 822, chap. 121, U. S. Comp. Stat. 1901, p. 691), which provides for the substitution of the officer’s successor, or successors, in his stead, and prevents the abatement of the suit. The reason for this substitution is that, while the action may be personal, the interest is not personal, but public. The costs in such an action may still be adjudged against the officer, but, for the same reason, Congress has provided that they shall be paid out of the contingent expense fund appropriated for the department. Now in this case, as was said in Leonard v. Rodda, 5 App. D. C. 256, 265, the appellant has no greater interest in the subject-matter than all other citizens have. His action was in the line of the performance of his official duties as an officer of the United States, under their authority and'on their behalf. His appeal was taken in the performance of the same public duty, and it would have a strange consequence if the rights of the public in such cases should be made to depend upon his willingness or ability to give his individual bond. If he should refuse to incur the risk of personal liability, no appeal could be taken, and there would be no means by which the government could avert the result. The Secretary of the Interior was of the opinion that the judgment seriously affected the public interest, and the Attorney General concurred in that view. As heads of their respective departments they directed the appeal to be taken — 133 — under secs. 1000 and 1001. We think they had the right to do so. We see no difference between this and an appeal taken by a revenue collector, or the receiver of an insolvent bank, by direction of a department of the government, without bond, which have been upheld as governed by the sections aforesaid. Schell v. Cochran, 107 U. S. 625, 628, 27 L. ed. 543, 545, 2 Sup. Ct. Rep. 827; Pacific Nat. Bank v. Mixter, 114 U. S. 463, 29 L. ed. 221, 5 Sup. Ct. Rep. 944. In accordance with this view, the many appeals that have been prosecuted from this court to the Supreme Court of the United States, in like mandamus cases, have been allowed without bond required of the officer; and so far the right to do so has never been questioned. For the reasons given, the motion to dismiss the general appeal will be denied. 5. The special appeals from the orders of the trial court requiring a bond to be given in the sum of $50,000, in order to supersede the execution of the original order awarding the writ of .mandamus, were allowed in accordance with the doctrines enounced in Leonard v. Rodda, supra, and again declared hereinbefore. Since the appeal in the main case has been held to operate as a supersedeas, without bond, particular consideration of the motion to dismiss the special appeals is unnecessary and unimportant. The questions raised, particularly that involving the power of the members of the court to act as a court when apart from each other, and outside of the special territorial limits of the court’s jurisdiction, present difficulties the discussion of which would greatly prolong this opinion. Without expressing an opinion with regard to them at this time, the motions are formally denied. 6. This brings us to the consideration of the case on its merits. The Secretary of the Interior is the chief of one of the great Executive Departments of the government, and is clothed with general powers of control and supervision in respect of the manner of the administration of the several minor departments and bureaus thereof. Sec. 161 Rev. Stat., U. S. Comp. Stat. 1901, p. 80. The Pension Bureau, under his control, is an immense — 134 — establishment which is constantly engaged in the investigation and adjudication of claims for pensions and bounty-land warrants, the number of which is enormous. These claims are generally filed and prosecuted by pension agents .and attorneys. Before the passage of the act of July 4, 1884 (23 Stat. at L. 98, chap. 181), all matters of procedure in the Pension Office, including the admission of attorneys to practice, and their continued recognition, seem to have been governed exclusively by the regulations made by the Secretary. The attention of Congress having been called to alleged irregular practices of attorneys, the House of Representatives, on February 6, 1884, passed a resolution directing the Secretary to furnish such information as he might have touching these matters. His report was made May 7, 1884. In this report it appeared that as many as three hundred and twelve attorneys had been disbarred by the Secretary on proceedings for that purpose. In the pension appropriation act of July 4, 1884, was incorporated a number of provisions relating to the regulation of the business of the office. Section 3 provided that “no agent, or attorney, or other person, shall demand or receive any other compensation for his services in prosecuting a claim for pension or bounty land than such as the Commissioner of Pensions shall direct to be paid to him, not exceeding $25,” the same to be received only after the claim shall have been allowed. Section 4 provides that duplicate articles of agreement shall be filed in the department setting forth the fee agreed upon by the parties. Where no fee agreement is filed, the fee shall be “$10 and no more.” The form of the articles of agreement is prescribed. It further provides that any agent, attorney, or other person prosecuting any claim for pension or bounty land “who rhall directly or indirectly contract for, demand, or receive or retain, any greater compensation for his services or instrumentality in prosecuting a claim for pension or bounty land than is herein provided, * * * or who shall wrongfully withhold from a pensioner or claimant the whole or any part of the pension or claim allowed and due such pensioner or claimant, or the land warrant issued to any such claimant, shall be deemed guilty of a misdemeanor,” punishable by fine or imprisonment, or both. — 135 — Section 5 provides: “That the Secretary of the Interior may prescribe rules and regulations governing the recognition of agents, attorneys, or other persons representing claimants before his department, and may require of such persons, agents, and attorneys, before being recognized as representatives of claimants, that they shall show that they are of good moral character and in good repute, possessed of the necessary qualifications to enable them to render such claimants valuable service and otherwise competent to advise and assist such claimants in the presentation of their claims, and such Secretary may, after notice and opportunity for a hearing, suspend or exclude from further practice before his department any such person, agent, or attorney shown to be incompetent, disreputable, or who refuses to comply with the said rules and regulations, or who shall, with intent to defraud in any manner, deceive, mislead, or threaten any claimant or prospective claimant by word, circular, letter, or by advertisement.” 23 Stat. at L. 99, chap. 181, U. S. Comp. Stat. 1901, p. 3296. Among the regulations prescribed thereafter on July 11, 1884, by the Secretary of the Interior, are secs. 5 and 9 as follows : “Sec. 5. In the case of a firm, the names of the individuals composing the firm must be given, and the certificate and oath as to each member of the firm will be required.” “Sec. 9. Whenever an attorney or agent is charged with improper practice in connection with any matter before a bureau of this department, the head of the bureau shall investigate the charge, giving the attorney or agent due notice, together with a statement of the charge against him, and allow him opportunity to be heard in the premises. When the investigation shall have been concluded, all the papers shall be forwarded to the department with a statement of the facts and such recommendations as to disbarment from practice as the head of the bureau may deem proper, for the consideration of the Secretary of the Interior. During the investigation the attorney or agent will be recognized as such unless for special reasons the Secretary shall order his suspension from practice.” — 136 — As shown by the statement of the case heretofore made, the Pension Commissioner, some time prior to April 13, 1907, began an investigation of the general practices of attorneys, and agents, taking, in the course thereof, depositions of many persons relating thereto. No charge had then been made against any particular person, and the investigation was had for the information of the Commissioner. Founded on such information, the Commissioner, on April 13, 1907, served upon Eugene E. Stevens and Thomas E. Harney, who, by their own statement at the time of their admission to practice, made in accordance with sec. 5 of the regulations above quoted, composed the firm of Milo B. Stevens & Company. 7. The first point raised on the charge of the petition that the proceeding was not in accordance with due process of law is that the charge against the relators is founded on depositions taken ex parte, and without their knowledge. The formal and regular way to proceed in such cases is to found the charges upon which the attorney is cited to show cause why he should not be disbarred, upon an affidavit stating the facts. Ex parte Wall, 107 U. S. 265, 271, 27 L. ed. 552, 555, 2 Sup. Ct. Rep. 569. But such affidavits are necessarily ex parte. In no proceeding before the courts has it ever been held that the party charged with the offense should have notice of taking the affidavit and an opportunity to controvert it in advance. It is merely the foundation of the charge which he is called upon to meet. Using it for that purpose and using it as proof of the charge on the trial are very different things. The Commissioner had the right to make investigations regarding the practices before his office, and to use facts so ascertained as the basis of a formal proceeding to disbar an attorney. Upon the charges so made, if not admitted, he is not empowered to prosecute to judgment, save upon evidence submitted in the usual way, with opportunity to the accused to hear and examine the witnesses, and to introduce proofs on his own behalf. The department did not exceed its jurisdiction or deny due process of law in this respect, and the judgment appealed from cannot be supported on this contention. — 137 — 8. It is admitted that due notice of the charges was given to-the relators Stevens and Ilarney; that they were accorded ample-time to answer the same; that they were not denied the right to offer evidence; and that they were accorded a hearing. The contention is that the respondent exceeded his jurisdiction and proceeded without due process of law in two particulars. (1) Without notice to relators, or opportunity to be confronted with the witnesses, the Secretary made an ex parte investigation of the charge in the answer that the practice of attorneys in buying the warrants of their clients had long been known to the officers of the Pension Bureau, had been acquiesced in, and had grown into a usage, which relieved their conduct of any taint of illegality or impropriety. The answer admits that this investigation was ■ privately made, but avers that it was for the sole purpose of acquiring information by the Secretary as to the conduct of the officials of the bureau in such matters; and that the Secretary held, as matter of law, that the alleged facts, if true, constituted no ground of defense to, or justification of, such practices. The truth of the answer is admitted by the demurrer. If the conclusion of the Secretary was a sound one, then the relators were denied no constitutional right by his private investigation of the truth of the charge made against his subordinates. That he was right, we think is clear. The knowledge by officers of the bureau of the existence of such practices, and their apparent acquiescence therein by reason of failure to condemn, or disapprove of the same, could not change their nature, if illegal and improper, and confer legality and regularity upon them, long and universally recognized rules of law for the protection of clients and the observance of honor among lawyers cannot be abrogated by the toleration, or the connivance of officials charged with the administration of the law. (2) The mass of depositions taken by the Commissioner in the course of the preliminary investigation before referred to, as required by the regulations (sec. 9), accompanied his report made to the Secretary. The charge is that the Secretary considered the same as evidence in arriving at his decision disbarring the relators, and that his conclusion was in part founded — 138 — thereon. This charge was flatly denied in the Secretary’s .answer. He states explicitly that no evidence was taken or considered save such as was contained in the answer of the relators to the charges against them, and exhibits appended thereto, because, in his judgment, the answers contained a substantial admission of the specifications of the charge, thereby rendering unnecessary the taking of any evidence in their support. This allegation is also admitted by the demurrer. It is contended, however, that the consideration of this evidence is shown by the -Secretary’s final action of May 1, 1908, wherein he directs the Commissioner of Pensions to no longer recognize relators as attorneys, in the following paragraph thereof: “After careful consideration of your recommendations, the testimony in the case, the arguments of counsel, and the authorities cited by them, I am convinced,” etc. The denial of the answer is not inconsistent with this record, for it says that the testimony was contained in the admissions of and exhibits to the answer, and none other was heard or considered. An examination of relator’s reply to the ■specific charges bears out this conclusion. The citation to •answer, it will be remembered, contained specific charges that •the relators had been guilty of champerty in Pygall’s case; that they had purchased the warrants issued to them for their clients from the latter; had misled and deceived clients as to the value -of the warrants; and resold the warrants at great profit; had filed fee agreements with no intention to be bound by the same; ■and had indirectly received fees in violation of law. The response to the citation took up each specific charge, and, as shown by the recitals of the same in the preliminary statement, there was a substantial admission of the acts charged in some of the cases at least. Some of the admissions were more direct than others, as will be seen by reading the answers. In some of •them there is an evasion of the charge as to profit made in the resale. But these omissions were subsequently supplied by their •statement of profits refunded to twenty-two clients, the sum total of which is nearly $7,000. The denial of the fact that they did not know the actual value of the warrants at the time -of purchase (even if that be a defense to the charge of trading — 139 — with clients) was met by the fact that they were constantly making offers for warrants, and that each one resold subsequently was at a considerable profit. Take, for example, the admission in the Reddick case: The charge was that the warrant was delivered to relators September 11, 1905, purchased from the •client on September 16, for $200, and resold on September 19, 1905, to one Abbott by one Fennell for $720. The answer thereto admits the purchase for $200, but says that relators received no fee, and had no relation to the sale by Fennell to Abbott, only three days after their own purchase. They do not say what profit they made in this transaction, but the “refundment statement” shows that they refunded in this case $455 after deducting a fee of $25. From these admissions, the Secretary was of the opinion that they were buying the warrants'without giving information of value to their clients, were misleading them in regard to their interests, and defrauding them, and were also exacting indirectly more than the fees fixed by the statute in such cases. Having the jurisdiction to determine the weight of these admissions and evidence, direct and circumstantial, the soundness of his conclusions thereon cannot be inquired into in this proceeding. “Whether he decided right or wrong is not the question. Having jurisdiction to decide at all, he had necessarily jurisdiction, and it was his duty, to decide as he thought the law was; and the courts have no power whatever, under those circumstances, to review his determination by mandamus or injunction.” United States ex rel. Riverside Oil Co. v. Hitchcock, 190 U. S. 316, 324, 325, 47 L. ed. 1074, 1078, 23 Sup. Ct. Rep. 698. 9. The final contention is that the Secretary proceeded in excess of the jurisdiction conferred upon him by sec. 5 of the act of July 4, 1884. That section confers on him the power to make regulations governing the recognition of agents, attorneys, and other persons representing claimants before his department, and to require that they shall show that they are of good moral character and in good repute and competent to advise and assist olients; and, further, that he may, after notice and opportunity for a hearing, suspend or exclude from further practice “any — 140 — such person, agent, or attorney shown to be incompetent, disreputable, or who refuses to comply with the said rules and regulations, or who shall, with intent to defraud, in any manner, deceive, mislead, or threaten any claimant by word, circular, letter, or by advertisement.” It is contended that the words of the statute are too vague and uncertain in their definition of the conduct justifying the suspension or exclusion of an attorney from practice before the-department to be capable of enforcement. Proceedings of the-kind, notwithstanding they may have very serious and damaging consequences, are not criminal proceedings. The word “disreputable” is the only one bearing on this controversy to which any uncertainty can be attributed. It was probably used as the-equivalent of unprofessional and as applying more appropriately to agents and other persons who, as well as attorneys, might be permitted to practice before the department. The courts were possessed of the inherent power, at the common law, to inquire-into the conduct of attorneys admitted to practice before them, and to disbar them when found guilty of unprofessional conduct. The term was well understood by them and by the attorneys in-general, and there was no more practical uncertainty in its application than in that of the word defraud, which is so commonly used in criminal statutes without definition. Any conduct violative of the ordinary standard of professional obligation and honor was unprofessional and disreputable. It is rare that statutes have been passed defining or limiting the exercise of this-inherent power. Judged by the standard referred to, the admitted conduct of relators was clearly improper and unprofessional. .It is not necessary, however, to consider whether the court, having no power to review the action of the Secretary for error, can inquire whether he gave an erroneous construction to the statute. Nor is it necessary to consider whether the Secretary, who in these matters is vested with judicial power, and whose relations -to attorneys practising before his department are substantially the same as that of a court to attorneys admitted to its bar, has any inherent power in such matters of which the statute is merely declaratory. — 141 — In addition to disreputable conduct, the statute warrants the exclusion from practice of one who refuses to comply with the rules and regulations, or who shall, with intent to defraud, in any manner, deceive, mislead, or threaten a claimant, by word, -circular, letter, or by advertisement. The same statute prohibits the demand of a fee in any case of more than $25, and requires an agreement therefor, the form of which is prescribed, to be filed in the proper bureau. It is further made a penal offense for an attorney to directly or indirectly contract for, demand, or receive any greater compensation than that before established. Section 2436, Rev. Stat., IT. S. Comp. Stat. 1901, p. 1498, also provides that any disposition of warrants, or land granted or to be granted, made before the issue thereof, shall be void. The relators were charged with conduct misleading their clients, through omission of duty to furnish them information, ■with misconduct in filing fee agreements with no intention to observe the same, and subsequently waiving the stipulated and lawful fee and indirectly receiving more than the lawful fee through purchase of the warrants at less than their actual value. This purchase of warrants was also charged as illegal under the provisions of sec. 2436, Rev. Stat. Evidently the Secretary considered that the evidence direct and circumstantial, furnished by the answer and its exhibits, sustained the charge of defrauding clients, and violating the provisions of the law denouncing the receipt of fees in excess of the legal rate, and declaring transfers of warrants void. The answer to the charge expressly admitted that the purchase of warrants was void under sec. 2436, but defended against the same on the ground that the section simply renders such sales void, at the option of the seller, and does not provide any penalty for making the purchase; wherefore it is not an unlawful act. It is quite true that there is no penalty imposed as a punishment for violating this section, but that does not relieve a purchase from being an illegal act. It was intended to prevent fraud in the administration of the land laws, and made a rule which was violated by the relators. • The charge against the relators was of “improper, unprofessional, and illegal conduct” in the matter of the cases specified. The — 142 — judgment of the Secretary, communicated by letter to the Commissioner for further communication to the relators, recites his-conviction that they “have transacted with their clients a business which is clearly incompatible with their obligations as attorneys, and with the laws, rules, and regulations under which they were recognized and permitted to represent claimants before this department and its bureaus.” Having jurisdiction of the subject-matter, and having found that there was sufficient-evidence to show conduct violative of the rules and regulations, his judgment is not subject to review; and it matters not whether matter merely showing that one is disreputable can be ground of action under the statute. 10. An incidental question arises on this record which requires some consideration. Two of the relators only were disbarred. The other two, claiming to be members of the firm of Milo B. Stevens & Company, have joined in this petition. The-first two were admitted under the rule to practise in their own and in the name of Milo B. Stevens & Company, having stated, that they alone composed the firm. As the business of that firm had belonged in part to Milo B. Stevens, who had died, they were required to procure the consent to their use of their firm name by his representatives. This they did, and were then admitted. Neither the widow of Milo B. Stevens, now the wife of the relator Harney, nor Evelyn Stevens, the infant child of Milo-B. Stevens, had ever been admitted to practise before the department. They could not so practise under the name of Milo-B. Stevens & Company, without complying with the regulation. They have nothing of which they can complain, and were, therefore, neither necessary nor proper parties to the proceeding. _ _ _ _ We are of the opinion that the court should have overruled the demurrer to the respondent’s answer to the petition. The judgment will therefore be reversed, with costs, and the cause remanded for further proceedings not inconsistent with this-opinion- Reversed. A petition by the appellees for a rehearing was denied January 6, 1909.