State ex rel. Jones v. Laughlin

Sherwood, C. J. The return of the respondent is substantially this: That having reason to believe, from facts that appeared in evidence before him, that relator, who is an attorney of the St. Louis criminal court, had been guilty of duplicity toward the court, and of willfully abusing its process, and that he had thereby caused a great and needless expense in the trial of a certain cause in said court, the respondent, as judge of said court, of his own motion, — 446 — caused - relator to be cited to appear before the bar of said court on the 20th day of December, 1880, at 10:30 a. m., and' then and there show cause why the name of relator should not be stricken from the rolls of said court and relator be-precluded from further practicing his profession as an attorney of said court; that respondent caused witnesses to-be summoned for a thorough investigation of the matter; that an investigation was had, and that the matter is now held by respondent under advisement; that respondent proposes to proceed to determine, from the evidence, the guilt or innocence of relator, and that if he finds relator guilty, he will, unless prohibited by this court, enter an order for his punishment. Respondent pleads his jurisdiction as judge of said court as a bar to the granting of the writ prayed for. The only point requiring examination is the jurisdiction of the St. Louis criminal court to proceed as it has done, and intends doing, in the premises. There is no doubt of the power of a court of general and common law jurisdiction, for good cause, to disbar or strike from its rolls any attorney of such court. This power exists at common law, independent of statutory aid; exists as a power inherent in courts of that description. Abundant authority supports this position. Owing however, to the view we have taken of this case, we deem it unnecessary to enter at large upon the discussion of the very grave question whether the legislature may, in the exercise of its constitutional functions, so far tre’nch upon the ancient authority of courts possessed of general and common law jurisdiction, and upon the authority of those established by the organic law itself, as to-limit the means, lessen the methods and curtail the grounds by which and for which the members of the bar of such courts are to be deprived of the privilege of practicing therein. That there is, in this regard, some limit, some undefined boundary beyond which even the legislative will becomes powerless, can but be obvious to every one who — 447 — reflects for a moment on the triune system of our State government, on the divisions of its powers “into three distinct departments — the legislative, the executive and the judicial” — and upon the express prohibition against either of such departments exercising “ any power properly belonging to either of the others,” except where our constitution “ expressly directs or permits.” Const, of Mo., art. 8. These remarks are merely prefatory to the consideration of the precise question this record presents, which, as before stated, is, whether the St. Louis criminal court had authority to act in the premises. I. We are relieved from discussing the foregoing point as to the extent of the legislative powers in respect to courts of general and common law, or constitutional jurisdiction, because not regarding the court, whose action we are asked to restrain, as possessed of such an enlarged jurisdiction as that just mentioned. “The St. Louis criminal court” is a court of purely statutory origin, having been created by the act of the legislature, approved November 29th, 1855» It is a court, also, of inferior and limited jurisdiction, that jurisdiction being confined to criminal causes alone arising within the limits of the city of St. Louis, or else coming to such court by change of venue. R. S., Appen., 1507. This court, being the mere creation of the legislature, owing its origin as well as its jurisdiction and powers to the legislative will, it was clearly competent for the legislature to enlarge or restrict those powers, or to abolish the court altogether. This point was so ruled as to courts of common pleas, in reference to which courts section 5 of the Schedule provides that they “ shall continue to exist and exercise their jurisdiction until otherwise provided by law.” State v. Brown, 71 Mo. 454. Similar language is used as to criminal courts in the preceding section of the Schedule, and section 23, article 6 of the constitution recognizes all criminal courts, as well as county courts, probate courts, — 448 — municipal corporation courts and justices’ courts as inferior courts, and places them under the superintending control of the circuit courts “ in each county in their respective circuits.” The power of the legislature as to these courts of statutory origin has on former occasions been frequently and broadly asserted by this court. Harper v. Jacobs, 51 Mo. 296; Ross v. Murphy, 55 Mo. 372; Smith v. Guerant, 55 Mo. 584. The rule in regard to these courts of inferior and limited jurisdiction is well established, that they take nothing by implication, and can only exercise such powers as the legislature has expressly' conferred. That no power to disbar an attorney or strike his name from the rolls has been thus expressly conferred on the St. Louis criminal court must be admitted. And even if it be said that the 1st and 2nd sections of the law organizing that court are sufficiently comprehensive to confer the power claimed — a position we do not admit — it cannot escape observation that the concluding portion of section 2 subjects the power conferred on that court to the “provisions of the laws of this State.” Among these provisions thus referred to are those relative to the suspension or removal of an attorney because “guilty of felony, or infamous crime, or improperly retaining his client’s money, or of any malpractice, deceit or misdemeanor in his professional capacity.” The grounds on which the disbarment of relator is bottomed are, if sufficiently specific, comprehended within the statutory provisions above noted, since they evidently relate to “ malpractice, deceit or misdemeanor in his professional capacity.” But in relation to grounds of this nature, the legislature has specifically provided that an attorney may be suspended or removed from practice upon such “charges being exhibited and proceedings thereon had in the Supreme Court, the St. Louis court of appeals or the circuit •court.” By thus pointing out the particular courts in which the proceedings are to be instituted for the suspension or disbarment of attorneys, the legislature evidently intended, — 449 — and in fact has said, that courts, other than those mentioned, should possess no power of suspension or removal for any of the grounds set forth in the statute. “ Affirmative specification excludes implication;” the expression of one thing is the exclusion of another. Dwarris on Stat., 605, and cases cited; Ex Parte Snyder, 64 Mo. 58; Maguire v. State Savings Association, 62 Mo. 344. For the reasons, then, that the legislature has never expressly conferred upon the St. Louis criminal court the power to suspend or remove an attorney from the practice, and if such power had been conferred, that it was limited by the provisions of the law already noted, we incline to the opinion that no such jurisdiction as claimed and pleaded by respondent exists. II. Nor do we regard the soundness of the conclusion just announced affected by the fact that the word “may” is employed in section 488 of the act under discussion instead of the word “ shall.” The proper rule of construction in cases of this sort, as we understand it, is that may is to be held as meaning shall whenever the statute requiring construction relates to a power conferred on public officers, concerning the public interest and the rights of third persons, who have a claim de jare that the power shall be exercised in this manner for the sake of justice and the public good. Leavenworth v. Co. Ct. of Platte Co., 42 Mo. 171, and cases cited; Steines v. Franklin Co., 48 Mo. 167, and cases cited. No argument is necessary to show that the rule of construction mentioned is applicable here, since the matter under consideration, the suspension or removal of an attorney for felony or infamous crime or professional misconduct, obviously concerns justice and the public good. Other reasons may also be urged which favor the conclusion we have reached. The power to license attorneys is only conferred on the Supreme Court, the St. Louis court — 450 — of appeals and the circuit court. It will not be claimed that the St. Louis criminal court possesses such power. But for a license granted by one of the superior courts, which the statute designates, an attorney could not practice his profession in an inferior court. No instance, it is believed, can be found, where a court not authorized to admit to the bar has attempted to revoke a license granted by a superior court by disbarring one admitted by the latter. Upon this ground, no doubt, rests an early case where an attorney accused of malpractice in an inferior court was proceeded against, not in that court, but in a court which possessed the power to admit. And the reason given therefor was that “ an attorney cannot practice in an inferior court if he is not an attorney of a superior court, and that is the reason why this court interferes.” Evans v. P--, 2 Wils. 382; 1 Bacon Ab., 509. Very anomalous consequences would, as we think, at tend as a result of the power claimed by the respondent. An attorney might be disbarred in an inferior court and still have his license unrevoked as to all the superior courts.. Whereas, if removed under the provisions of the statute already commented upon, such removal operates as a removal from practice in all the courts of this State and an absolute revocation of the license previously granted. The foregoing reasons compel us to award a peremptory writ. All concur.