State ex rel. Selleck v. Reynolds

DISSENTING OPINION.

WOODSON, J.

This is an original proceeding, instituted in this court, by the relator against the judges of the St. Louis Court of Appeals, to review by certiorari the record of that court, in the disbarment *391proceedings liad therein against the relator, which found him guilty as charged, and disbarred him from further practicing law in any of the courts of this State.

In obedience to a writ issued by this court, December 23, 1912, the judges of the St. Louis Court of Appeals duly certified to this court the full record of said proceedings had in that court against the relator, which is quite lengthy, but need not be here fully set forth.

On or about October 3, 1911, Eugene S. Wilson, and others, attorneys-at-law, and members of the St. Louis Bar Association, filed in said Court of Appeals a complaint against Selleck, the relator, a complaint .entitled, “Disbarment Proceedings,” consisting of five counts or charges. Since, however, relator was acquitted of the first, second and third charges, we will pass them without further comment, and devote our time and energies to the fourth and fifth charges.

The fourth count, at considerable length, charged relator with entering into a conspiracy with one ■Charles W. Kotzaurek, a merchant, and Bertha Hen-kel, one of his clerks, to defraud the creditors of Kot-zaurek, and in furtherance thereof relator committed and induced said Bertha Henkel to commit perjury, or briefly stated, it charged him with subornation of perjury and perjury.

The fifth count of the complaint, in brief, charged relator with embezzling some $8,000 worth of notes and property belonging to his client John Link, and his widow Minna Link, the executrix of his estate.

After filing said complaint, a summons was duly issued from said court to the respondent, commanding him to appear October 20, 1911, and show cause, if any he had, why he should not be disbarred from the practice of law as an attorney and counselor at law, before the courts of this State, upon charges stated in the petition filed by said Wilson et al.

*392On November 20, 1911, the respondent filed bis amended return and answer, admitting that he was a duly licensed and practicing attorney and counselor at law, before the courts of the State, and enrolled as such in said Court of Appeals, but denied each and every other allegation of the complaint filed against him.

Thereafter, and upon the same day, said court appointed the Honorables Charles W. Bates and George E. Smith, members of the St. Louis Bar; special commissioners, to take the testimony offered by the parties in the cause, with directions to report the testimony taken, with their findings of fact, as well as their conclusions of law upon the issues joined; and required, that the parties thereto, within ten days after filing the same, should, if they saw proper, file their exceptions thereto.

In pursuance to said order of the court, the commissioners heard the evidence introduced by the respective parties, and on July 17, 1912, reported the same to the court, together with their findings of facts and conclusions of law.

As previously stated, the findings on the first, second and third counts of the complaint were in favor of respondent, and those in the fourth and fifth were against him, and were as follows:.

“Chaege Fourth. Your commissioners find the issues against Ellroy Y. Selleck on this charge and find him guilty as charged.
“Further, upon this charge your commissioners find that Ellroy V. Selleck was in the year 1906 duly admitted to practice law and licensed to practice law in the courts of the State of Missouri, by the Supreme Court of Missouri, and from that time continuously up to the present time he has been engaged in the practice of law as an attorney and counselor.
“That in the months of November and December, 1908, one Charles Mathew Kotzaurek was conducting *393two liat stores in the city of St. Louis, one at 603 Pine street and one at 907 Pine street, and that the said' Kotzaurek was indebted to various persons for rent of said stores and for hats purchased and contracted for; that in his employ at that time was one Bertha Henkel; that at that time and prior thereto the said Ellroy Y. Selleck was and had been the attorney and counsel for said Bertha Henkel; that some time in the month of November or December, 1908, said Bertha Henkel introduced the said Kotzaurek to her attorney, the said Ellroy Y. Selleck; that under the advice and direction of said Selleck, he conspiring with the said Kotzaurek and the said Henkel, a scheme was devised by said Selleck for this purpose, and said Kotzaurek and said Henkel directed by the said Selleck in his capacity as their counselor and attorney to execute falsely hills of sale and promissory notes and to authorize the said Selleck to execute certain checks to apparently consummate a sale of the stock of hats by said Kotzaurek to said Henkel; that said papers were executed and delivered, although in truth and in fact no such transaction took place as purported to be set forth by said papers; that litigation ensued involving those transactions, and as a part of the conspiracy and plan devised by said Selleck to carry out said fraudulent scheme, he, the said Selleck, directed and instructed the said Henkel to give false and perjured testimony, in pursuance of which plan and scheme said Henkel did knowingly, willfully and intentionally in the trial of said litigation, give false and perjured testimony under the direction and at the suggestion of said Selleck, and the said Selleck, in said litigation, did knowingly, willfully and intentionally give false and perjured testimony.
“Chaege Fieth. Your commissioners find against the respondent, Ellroy Y. Selleck, on this charge and find that the allegations in said charge are true, ■
*394“Further, your commissioners find that said Sel-leck, being a licensed attorney as heretofore stated and practicing his profession in the city of St. Louis, was for some months prior to July 20, 1910, employed by one John Link as attorney and legal adviser; that said John Link died on the 20th day of July, 1910, and that letters testamentary were issued by the probate court of the city of St. Louis to his widow, Minna Link, on July 23, 1910.
“That during his lifetime the said John Link was the owner, among other things, of the following notes, secured by deed of trust, to-wit:
“One principal promissory note, dated April 1, 1906, executed by one John Schmittel, for the sum of $3500, which note, prior to the times hereinafter referred to, had been reduced by payments to $2750; said note was payable to B. O. Stevens of Clayton, Missouri, three years after its date, and by him indorsed without recourse. Said note had been purchased by said John Link and time had been extended on said note and new interest notes for $150 each given therefor. Said notes were secured by deed of trust on lot No. 2 of Human Place, being a subdivision of the west half of the west half of the northwest quarter of section'eight, township forty-five north, range six east, in St. Louis county, Missouri.
“Also a principal promissory note for $4500, executed by one Ellen A. Manion, dated April 1, 1910, payable three years after date, to August J. Kuhs, Jr., and by him indorsed; also six interest notes accompanying the same, each for the sum of $123.75, all secured by deed of trust on lot eighty-two of Tower G-rove Heights amended subdivision in block 4114 of the city of St. Louis, Missouri; that after the death of John Link said Ellroy "V. Selleck was employed by Mrs. Minna Link as her attorney to represent her and the estate of John Link, upon which she was administering; that shortly after the death of John Link and *395before letters testamentary were issued on John Link’s estate, the said Ellroy Y. Selleck, either by impersonating John Link or otherwise, unlawfully obtained access to the safety deposit box of the said John Link in the Mercantile Trust Company, where the said Link kept his papers, among others the said notes and deeds of trust; that the said Ellroy Y. Selleck obtained possession of said notes and deeds of trust and unlawfully, willfully and knowingly with the intention of depriving the true owners thereof of their property, converted the same to his own use; that he had refused to account for same or their value to the said estate of John Link, deceased, or to the executrix of said estate or to the attorneys employed by the executrix after . she discharged from employment the said Selleck; that the said Selleck falsely pretended that John Link in his lifetime had entered into a written contract with him as attorney for said John Link and one McGregor, whereby the said Schmittel notes and deed of trust were transferred to the said Selleck, and falsely pretended that said contract was stolen from his (the said Selleck’s) desk, whereas your commissioners find the fact to be that no such contract was ever executed, nor was any such contract ever stolen from said Selleck’s desk or otherwise.
“Your commissioners find as a matter of law, upon the facts so found as above, that the said Ell-roy V. Selleck is not a fit or proper person to practice law in the State of Missouri, and that his license so to practice should be revoked.”

On August 7, 1912, Selleck filed his exceptions to the report of said commissioners. The sixteenth and seventeenth, the only material ones, are as follows:

“(16). Under the pleadings, the information or charges, the court has not the authority or power to revoke respondent’s license to practice law in the State of Missouri,
*396“ (17). This court has not jurisdiction in proceedings of this character. It has no jurisdiction, authority or power to revoke respondent’s license to practice law in the State of Missouri. Respondent was duly admitted to practice law' and licensed to practice law in the courts of the State of Missouri by the Supreme Court of Missouri, the sole court with power to issue license to attorneys to practice law in this State. ’ ’

In passing, we may state that there is no pretense that the matters and things complained of were committed by respondent, in reference to or in connection with any matter pending in said Court of Appeals.

Respondent filed exceptions to the report of the commissioners; and on December 3, 1912, the court overruled said exceptions and adopted or confirmed the report in toto, and thereupon rendered the following judgment:

“It is therefore the judgment of the court that the respondent, Ellroy V. Selleck, Esq., who as appears from the records of this court is an enrolled member of its bar, be and he is hereby debarred from the further practice of the profession of an attorney and counselor at law under the laws of this State in any of the courts thereof, and especially from the bar of this court; that his license to practice law and as a member of the bar of this State be and the same is hereby canceled and annulled and to be henceforth held as naught. Furthermore, that the relators have and recover the cost of this proceeding, to be taxed by the clerk according to law, of and from the respondent, Ellroy V. Selleck, and that execution issue. It is so ordered and adjudged. Caulfield, J., concurs. Reynolds, P. J., not sitting.” [In re Selleck, 168 Mo: App. 391.]

On December 12, 1912, the respondent filed his motion for a rehearing, assigning numerous reasons therefor, which are not necessary to be here stated. And on the same day respondent filed in said court a *397motion to transfer said canse to the Supreme Court of Missouri, and assigned therefor four of the reasons stated in his motion for a rehearing, which need not be here stated. On December 14, 1912, the court overruled the motion to transfer the cause to the Supreme • Court. But, thereafter, and on the same day said court made an order expunging from its records, the judgment theretofore made by it on December 3, 1912, disbarring respondent from practicing - law in this State, and made and entered in lieu thereof the following judgment (formal parts omitted):

“Now at this day comes Eugene S. Wilson, Luther Ely Smith, Gfuy A. Thompson, William F. Woerner and Harry E. Sprague, attorneys at law, who composed the Committee on Grievances of the Bar Association of St. Louis, a corporation duly incorporated under thé laws of this State, by McDonald & Taylor, Thomas B.. Harvey and Walter N. Saunders, attorneys for said informants, and Ellroy Y. Selleek, respondent, in person, in the above-entitled cause, and by his attorney, John A. Talty, and the matter of the exceptions of the said respondent to the special commissioners’ report filed herein having been taken up and argued, and the court having fully 'considered the evidence and exhibits and findings of fact as set forth in said report of special commissioners heretofore appointed by the court to sit together, hear the testimony and make report of their findings of fact and conclusions of law therein to this court with respect to the several charges preferred by said above informants against said respondent, the court doth order and adjudge that the said exceptions to said report be and the same are hereby overruled; the court doth find that the said findings of fact and conclusions of law in said report are true and correct, and doth confirm and approve the same; and it appearing'from the record that the said Ellroy Y. Selleek, respondent, is an enrolled member of its bar, and the court having approved and con*398firmed said report as hereinabove set out, the court doth order and adjudge that the said Ellroy V. Sel-leck he and he is hereby disbarred from the further practice of the profession of an attorney and counsel-lor at law in all courts of record in the State of Missouri under the laws of this State; that his license to practice law as a member of the bar of this State be' and the same is hereby canceled and annulled and to be henceforth held as naught, and it is further ordered and adjudged that the said informants have and recover from respondent the costs of this proceeding and that they be taxed by the clerk according to law against said respondent, Ellroy Y. Selleck, and that execution issue therefor. Opinion filed.”

Upon this record, respondent filed in this court a motion to quash the proceedings and judgment of the Court of Appeals in said disbarment case.

■This motion, which is substantially the same as were the motions filed by respondent in the Court of Appeals for a rehearing and to transfer the cause to this court, is as follows (formal parts omitted):

“Now at this day comes the relator, Ellroy V. Selleck, and moves this honorable court to vacate, set aside and annul the judgment rendered by the St. Louis Court of Appeals on the 3rd of December, 1912 [should read, on the 14th day of December, 1912, instead of “on 3rd December”], in the case entitled in said court ‘In the Matter of Ellroy V. Selleck, No. 13,209,’ and to quash the summons and all the other proceedings therein and to adjudge the costs that have already accrued in said case in said Court of Appeals and the costs that may accrue herein against Eugene S. Wilson, Luther Ely Smith, Guy A. Thompson, William F. Woerner and Harry E. Sprague, complainants in said case, because it appears from the certified copy of the record in said case filed herein by the judges of the St. Louis Court of Appeals, in obedience to the writ of certiorari issued herein against said *399judges, that said Court of Appeals of the city of St. Louis had uo jurisdiction to render judgment against Ellroy V. Sellech in said case and that, the judgment rendered by them in said case on the said 3rd day of December, 1912 [14th day], was and is in excess of the jurisdiction of said St. Louis Court of Appeals, for reasons following:
“First. Said St. Louis Court of Appeals had no jurisdiction to try, hear and determine said cause entitled £In the Matter of Ellroy V. Sellech,’ because the validity of section 952 of the Revised Statutes of Missouri of 1909 is drawn in question by reason of the contention of respondent that said section is in violation of section 12, article 6, of the Constitution of Missouri and sections 1, 3 and 5 of the Amendment to the Constitution of Missouri of 1884.
‘‘Second. Said St. Louis Court of Appeals had no jurisdiction to try, hear and determine said case against Ellroy V. Sellech because the construction of section 12, article 6, of the Constitution of Missouri and sections 1, 3 and 5 of the Amendment to said Constitution of 1884 is involved.
“Third. Said court had no jurisdiction to try, hear and determine said cause, because the construction of sections 12, 22 and 30 of article 2 of the Constitution of Missouri is involved.
“Fourth. Said court had no jurisdiction to try, hear, and determine said cause, because the construction of the Fourteenth Amendment to the Constitution of the United States is involved and the proceedings in said case in said St. Louis Court of Appeals are in violation of said constitutional amendment in this, that said proceedings deny to Ellroy V. Sellech the equal protection of the law and deny to Ellroy V. Sel-lech due process of law.
“Fifth. Because the judgment rendered herein by said St. Louis Court of Appeals is in excess of its jurisdiction, being in violation of the provisions of *400section 958 of the Revised Statutes of Missouri of 1909.”

I. Counsel for respondent contend that the St. Louis Court of Appeals is a court of limited and spe-court of Jurisdiction: civiTcase/' cial jurisdiction, having no jurisdiction to hear and determine causes except such as are specially conferred upon it by the Constitution; that in all matters except in the issuance and trial of extraordinary writs, said court is solely and only appellate, and consequently it has no original jurisdiction in disbarment proceedings; and predicated upon that contention, counsel for respondent briefly insist: first, that section 952, Revised Statutes 1909, the only expressed authority pointed out which authorizes the Court of Appeals to try and determine disbarment proceedings, is unconstitutional, null and void; second, because the trial of said cause involves the construction of section 12 of article 6, of the Constitution of Missouri, and sections 1, 3 and 5 of the Amendments thereof for the year 1884; third, because the trial of said cause involves the consideration of sections 12, 22 and 30 of Article 2 of the Constitution; and fourth, because the trial involves the construction of section 1 of the Fourteenth Amendment of the Constitution of the United States.

For convenience, we will consider these propositions in the inverse order as stated.

Counsel for respondent have not pointed out in what manner the trial of respondent in the Court of Appeals has violated the Constitution of the United States; and we take it for granted that if the Court of Appeals has the jurisdiction to hear and determine cases of this character, then the question of due process of law as guaranteed by section 1 of the Fourteenth Amendment of the Constitution of the United States, is eliminated from this case. If, upon the *401other hand, said court has no snch jurisdiction, then the proceedings had and judgment rendered therein are absolutely null and void, and consequently no' necessity exists for passing upon said Federal question.

We, therefore, put aside the fourth insistence of counsel for respondent.

II. This brings us to the consideration of the third contention of counsel for respondent, namely: that no person shall he prosecuted criminally for felony or misdemeanor otherwise than by indictment or information, etc. (section 12); in criminal prosecutions, the. accused shall have the right to appear and defend, etc. (section 22); and that no person shall be deprived of life, liberty or property, without due process of law (section 30) — all of article 2 of the Constitution of Missouri.

It may be conceded that if the proceedings had and maintained in the Court , of Appeals against the respondent were criminal in character within the meaning of the Constitution, then clearly they would be absolutely null and void, because not instituted under indictment nor by information, as provided for by said constitutional provisions.

This concession, for the present, disposes of this contention of respondent, which, however, will receive further consideration in connection with thp contention that the proceedings had in the Court of Appeals were criminal in character.

III. The third contention of counsel for respondent is, that the proceedings had against him in the Court of Appeals involve the construction of section 12 of article 6 of the Constitution, ■ and sections 1, 3 and 5 of the Amendments thereof fo.r the year 1884, which provide for the creation of the various courts of appeals of the State, and in a general.way, prescribe the jurisdiction thereof.

*402This proposition is so closely related to and connected with the first insistence of counsel for respondent, I deem it necessary to consider them together.

In fact, all four of the contentions of counsel for respondent, in effect, are that the Court of Appeals has no jurisdiction to hear and determine the case pending therein against him, for the, reason that section 952, Revised Statutes 19Q9, the statute authorizing that court to try the cause, is unconstitutional, null and void; and thus presenting a constitutional question, that court has no jurisdiction or authority to try the case.

If we correctly understand the position of counsel for respondent, it is this: That the complaint filed in the Court of Appeals, against the respondent, is predicated upon section 951, Revised Statutes 1909, and each count thereof charges him with the commission of a felony; and that section 952, Revised Statutes 1909, authorizing such causes as this to he brought and tried in the Court of Appeals, as previously stated, is unconstitutional, null and void; and being a constitutional question, that court has no authority or jurisdiction to hear and determine the same.

It seems to me that counsel for respondent start out with a false premise, namely, that respondent was, within the language of section 12 of article 2 of the Constitution, prosecuted criminally in the Court of Appeals.

While it is true, the complaint filed therein against him states facts which constitute the grounds of his disbarment, which if true, constitute felonies, and for which he might be prosecuted criminally, yet a casual inspection of the record will show that he was not prosecuted criminally, but it was a proceeding instituted against him for-the reasons stated, .to revoke his license to practice law in the courts of this State.

*403One and the same act of a person may, in law, constitute both, a criminal and civil liability on bis part; nor is it necessary at the present time, as it was-in the early stages of the common law, that the person so accused, should first be prosecuted and convicted of the criminal offense before a civil action for damages could be maintained against him for said act. That is elementary, and it would be a useless waste of time to cite authorities in support thereof.

The same is true of the case at bar: the perjury, subornation of perjury and embezzlement proven against the respondent, constituted not only a criminal offense against the State, for which be might be criminally prosecuted and punished, but those acts of bis also constituted, as provided by said section 951, Revised Statutes 1909, sufficient .grounds for the revocation of bis license to practice law in the courts of this State.

It should be borne in mind that section 951 does not declare the acts of respondent criminal, that is done by other sections of the statute, but simply provides that' certain crimes therein mentioned, if committed by an attorney at law, afford sufficient grounds for bis disbarment; and section 952 provides in what courts proceedings for disbarment may be instituted.

If we bear in mind the distinction between a criminal prosecution, and a civil action instituted to recover damages resulting from the commission of crime, or a civil procedure to disbar an attorney for any of the matters stated in section 951, the confusion that lies at the base of this case wholly disappears, and with it, the contention that said section 952 is unconstitutional. This is apparent for the reason, that respondent was not prosecuted criminally in the Court of Appeals but was proceeded against civilly, to revoke bis license to practice law.

That being so, there is no substantial ground upon which to base the contention that said section 952 *404is unconstitutional, for the simple reason, as previously stated, that when it is seen respondent was not prosecuted criminally in the Court of Appeals, there is no ground for the contention that said section undertakes to confer upon that court jurisdiction over felony cases.

We, therefore, hold that the constitutionality of said section 952 was not involved in the “Disbarment Proceedings” had in the Court of Appeals;

IY. The foregoing observations practically dispose of this case, hut there is another incidental mat-courts: Power. ter discussed by counsel for respondent which we consider worthy of brief notice, and that is this: That section 12 of article 2 of the Constitution and sections 1, 3 and 5 of the amendments thereof, define fully the jurisdictions of the courts, of appeals; that they have no power or authority to hear and determine cases not embraced within the terms of those provisions of the Constitution; and that disbarment proceedings are not embraced therein, and therefore, the St. Louis Court of Appeals had no jurisdiction of the subject-matter of said proceedings.

If it should he conceded that the Court of Appeals has no' expressed constitutional authority to hear and determine disbarment proceedings, it would not neces- / sarily follow therefrom that said court was without authority to try said cause, for the reason that all courts in the .very nature of things must have certain inherent powers which are absolutely necessary for their preservation, protection and efficiency.

Learned counsel for respondent deny that proposition and Insist that there is no such thing as an inherent power in a court; and that when it exercises an authority not expressly granted to it by law, such exer-sise is simply-usurpation and tyranny.

In a remote sense there is some truth in that in*405sistence, but not in a legal sense, the sense in which that term is here used.

In the early stages of governments, and especially was it true of England, the courts thereof, like their laws, were matters of growth and development, founded upon usage and custom.

As civilization advanced, new rights and duties correspondingly arose, and those rights and duties were largely protected and' enforced according to the usages and customs which previously existed, as well as by those which had subsequently grown up.

That process of development has been going on from the beginning of the common law, and it is a continuous growth, where not controlled by legislative enactments, and I presume it will go on to the end of man. -

In order to meet those changed and new conditions, the jurisdiction of the courts grew correspondingly, and were and are ever equal to the emergency; and out of this grew the old axiom, Ubi jus, ibi reme-dium.

In this manner those common law courts grew into and became known as courts of general jurisdiction, that is, courts having jurisdiction over all subject-matters not specially withheld from them by custom or usage, or by Parliamentary enactments, among which were the various courts of appeals and of errors.

The States of this country, which adopted the common law, this being one of them, organized the courts thereof, much after the fashion of those in England, and in conferring jurisdiction upon them, in language more or less general, conferred practically the same jurisdiction upon them respectively, as was possessed by the corresponding courts of England; and in determining the jurisdiction of our courts resort must be had to the jurisdiction of the respective courts of England corresponding to those of this State; and *406by doing so, we find that the appellate courts of England, under their general powers so acquired, from time where the memory of man runneth not to the contrary, have entertained jurisdiction of disbarment proceedings, and have disbarred attorneys and counselors at law, without any statutory authority. [Weeks on Attorneys, sec. 80, pp. 161 and 162, and cases cited.] Those powers of courts are regulated by acts of Parliament.

So in this country from the foundation of the various States of the Union, the appellate courts thereof have had, and are now exercising, original jurisdiction to disbar attorneys, as part of their inherent power, so essential to the administration of justice. And the statutes of the various States are merely regulative of that power, and are not the creation of it. This is also true of this State. [Strother v. State, 1 Mo., side page 605; State v. Watkins, 3 Mo., side page 480; State v. Garesche, 36 Mo. 256; State ex rel. v. Laughlin, 73 Mo. 443; State ex rel. v. Mullins, 129 Mo. 231, 1. c. 236-7; State ex rel. v. Smith, 176 Mo. 90, 1. c. 101, 103, 105, 106; State ex rel. v. Sale, Judge, 188 Mo. 493, 1. c. 497-498.]

The same ruling prevails in other States, as will be seen by consulting the following cases: In re Egan, 22 S. D. 355; In re Breen, 30 Nev. 164; In re Jones, 70 Vt. 71; People v. Bamborough & Brown, 255 Ill. 92; In re Henderson, 88 Tenn. 531; Penobscot Bar v. Kimball, 64 Me. 140; Strout, Petitioner, v. Proctor, 71 Me. 288; Delano’s Case, 58 N. H. 5; People ex rel. v. Green & Johnson, 9 Colo. 506; State v. Holding, 1 McCord (S. C.), 379; In re Robinson, 136 N. Y. Supp. 548 (1912); In re Mendelsohn, 135 N. Y. Supp. 438 (1912); In re Flannery, 135 N. Y. Supp. 612 (1912); In re Thatcher, 80 Ohio St. 492, 1. c. 652-5.

This rule seems to be conceded -by counsel for relator, for on page 14 of their brief it is stated: ‘ The accepted doctrine is that statutes and rules merely *407regulate the power to disbar, instead of creating it.” But in justice to counsel, it should be stated that they insist that said inherent power of the appellate courts of this State is abrogated by the Constitution and cannot be conferred by statute.

This same contention would apply equally well to this court, for there is no constitutional provision authorizing it to entertain disbarment proceedings, yet it has exercised that power from the creation of the court.

This insistence is not well founded, as will clearly appear from a consultation of the authorities previously cited.

I am, therefore, of the opinion that the writ of certiorari heretofore issued should be quashed.

Lamm, C. J., and Walker, J., concur herein.