Ex parte Redmond

Ethridge, J.

(dissenting).

I am unable to agree with my brethern that the circuit court has jurisdiction to resore a disbarred attorney who is disbarred under the provisions of section 223, Code of 1906 (section 200, Hemingway’s Code). This section reads as follows:

“223. Penalty for Misconduct. If any attorney or counselor at law be in default of record, or otherwise guilty of any deceit, malpractice or misbehavior, or shall willfully violate his duties, he shall be stricken from the roll and disbarred, and his license revoked by any court in which he may practice; and such person shall never afterward be permitted to act as an attorney or counselor in any court in this state.”

It will be noted in this section that the attorney, .for a violation of his duties as an attorney, shall be stricken from the roll and disbarred and his license revoked in any court in which he may practice. So when an attorney is disbarred his license is annulled and ceases to exist. He stands just as though he. never had a license, and if he may be restored at all he would have to begin like any other person seeking a law license. The attorney in question was disbarred in the year *54519,15. At that time the law required certain qualifications to practice law, including law learning on certain specific subjects named in section 209, Code of 1906. Since that time, and before the application to reinstate, the legislature raised the standard of qualifications on the subjects upon which an examination must be taken, and among the subjects which were not required to be taken before is an examination on federal and state practice, of federal statutes relating to judiciary and bankruptcy, on professional ethics, and on. such other subjects as the board of examiners may deem proper. This act appears as chapter 107, Laws of 1916 (section 180, 181, 182, 183, 184, 185, 186, 187, and 188, Hemingway’s Code), and changes the subjects in material ways from the Code section under which the applicant is licensed, and, among other things, requires the applicant to have at least a high school education or its equivalent. A board of law examiners is created, having sole power of passing upon the qualifications of the applicant passing the examination.

The circuit court has no jurisdiction whatever to license attorneys to practice law, and has not had such jurisdiction for many years. . Prior to the enactment of chapter 107, Laws of 1916, the chancery court had exclusive jurisdiction to examine applicants to practice law. The jurisdiction of the' circuit court as - enumerated in section 156 of the Constitution is stated as follows:

The circuit court shall have original jurisdiction in all matters civil and criminal in this state not vested by this Constitution in some other court', .and such' appellate jurisdiction as shall be prescribed by law.”

Under this . section matters civil means matters of common-law nature. Bell v. West Point, 51 Miss. 262.

The statutory jurisdiction of the circuit court is contained in sections 702 and 703, Code of 1906, (sections *546481 and 482, Hemingway’s Code), which reads as follows :

“702. Jurisdiction; G-eneral Enumeration of Subjects. — The circuit, court shall have original jurisdiction in all actions when the principal of the amount in controvérsy exceeds two hundred dollars, and of all other actions and causes, matters and things arising under the Constitution and* laws of this state which are not exclusively cognizable in some other court, and such appellate jurisdiction as prescribed by law; and such court shall have power to hear and determine all prosecutions in the name of the state for treason, felonies, crimes, and' misdemeanors, except such as may be exclusively cognizable before some other court; and said court shall have all the powers, belonging to a court of oyer and terminer and general jail delivery, and may do and perform all other acts properly pertaining to a circuit court of law.
“703. Jurisdiction of Cases Transferred or Bemand-ed to It. — The circuit court shall have jurisdiction of all cases transferred to it by the chancery court or remanded to it by the supreme court. ’ ’

It will be seen from a reading of these sections that no jurisdiction is given, either by the Constitution or by the statutes, to the circuit court over the subject-matter here involved. In text-books it is stated that the jurisdiction to restore an attorney to the practice of law results from the power to admit attorneys to practice. There being no power to admit in the circuit court, and the statute giving jurisdiction to disbar without embracing the power to admit or restore the attorney to practice, necessarily excludes such power.

Prior .to 1857 there was a statutory method of restoring attorneys to the practice of law, but this law was repealed in the enactment of the Code of 1857, since when ho method is provided by any statute on the subject. It seems to me that it is clear from the pro*547visions of onr statutes above quoted providing that the license shall he revoked, and that such person shall never afterward be permitted to act as an attorney or counselor at law in any court of this state, declares in unmistakable terms the public policy of permanently excluding from the profession of law those who have been found unworthy. The lawyer is necessarily a trustee with large discretion, and'by reason of his standing in the profession capable of inspiring confidence of those unlearned in the science of law, and it was the’ policy of the legislature to deny to those who had been unfaithful to the great trust imposed in them further power of deception and wrongdoing. Of course the legislature could enact a statute to restore, and that, statute might be either general or special, according to the wisdom and discretion of the legislature of the state. It was no doubt the purpose of the legislature in enacting the above section to forcé a person desiring' to be restored to the practice of law after being disbarred to apply' to the legislature for an enabling act either general or special. The legislature has full control over the subject because there is no constitutional limitation whatever upon the powers of the legislature to enact laws upon- this subject, and it is elementary that the legislature has power to enact laws upon all subjects unless the act is denied, limited, or restricted in the state or federal Conditions. '

There are three statutes in the chapter on attorneys and counselors at law bearing on disbarment and qualifications of attorneys. Section 218, Code of 1906 (section 192, Hemingway’s Code) provides that any person convicted of a felony, manslaughter excepted, shall be incapable of obtaining a license to practice law, or, if already licensed, the court in which he was convicted shall enter an order disbarring such convict.

Section 225, Code’of 1906 (section 202, Heingway’s Code) provides for proceedings against an attorney *548who has collected money and failed or refused to pay it when demanded; and this section provides that in such case the conrt may strike his name-, from the roll and revoke his license, or may suspend his right to practice nntil the money shall he paid over. It will he noted there is no such provision of suspending the license in section 223, Code of 1906 -(section 200, Hemingway’s Code) for the offenses therein named.

Section 232 Code of 1906 (section 209, Hemingway’s Code) makes it unlawful for an attorney at law to encourage litigation by any promise or offer to give a valuable consideration as an inducement to have business placed in his hands, etc.

Section 232 Code of 1906 (Section 209, Hemingway’s Code) provides for any violation of the above section the attorney shall be removed and disbarred from acting as an attorney at law. This .section does not provide that the license is revoked and that such person shall never thereafter practice in any court of this state. Reading this last-named section in connection with the sections set out above and in the majority opinion, it appears conclusive to my fhind that the legislature intended to establish a policy under section 223, Code of 1906 (section 200, Hemingway’s Code) forever foreclosing to an attorney guilty of the conduct therein reprobated the privilege of practicing law.

Another reason for disagreeing with the majority is that there is no statute anywhere reserving to the circuit court a control over its judgment after the adjournment of the term at which the judgment is entered. The rule is well recognized that no court has control over its judgment after the ending of the term at which judgments were entered, unless such power be given in some statute.

It is conceded in the brief for the appellant that the judgment of the circuit court disbarring Redmond is *549res adjudicata, conclusively establishing his unworthiness and misconduct. The proceeding was a judicial proceeding and the judgment stands in the precise category of any other judicial judgment, arid can only be set aside and impeached for fraud in its procurement, and there is no' pretense that there is either fraud, misunderstanding, concealed evidence, or any other fact or circumstances disputing ’ the righteousness of the judgment so rendered.

I have no doubt that. the legislature in a proper case, on a conclusive showing of good moral character, would pass an enabling law authorizing a person disbarred to take a new. examination and be readmitted, and that such would be the wisest course to pursue to meet any of the 'great hardships and injustices, pictured in the main opinion, that might result from denying the right to be restored.

' However, we are not concerned with hardships. We are concerned with enforcing a wholesome public policy plainly declared by statute. Under the majority opinion it will be practically impossible to keep crooks out of the profession, because any man intelligent enough to stand the examination can undergo a temporary reformation and delude for a few weeks the public as to his repentance and reformation.