We have carefully considered the several briefs presented on this application for rehearing, some of which contain much caustic criticism of the opinion, upon the theory that a review of the law in the other states of the Union, and obtaining generally elsewhere, is not apropos of the question here presented. But we think counsel have misinterpreted the opinion in this regard, and misconceived the purpose which actuated this review of the law.
It is true that, in our opinion, the writer attempted to review the authorities in the other states of the Union, and elsewhere, and has possibly written at greater length than *Page 126 the exigencies of the case actually required, but it was for the purpose of determining just how the courts of highest resort in those states had considered and determined such issues as were presented in the case at bar. Many of those states (if not all of them) have a constitutional provision very similar to our own, viz.: "That the right of trial by jury shall remain inviolate." (Const. 1901, § 11.)
We expressly stated, in our opinion handed down on the original submission, that, in considering the question of the right of trial by jury, the nature of the proceedings, as well as the nature of the action, and, we may here add, the cause of action, must be borne in mind.
The action for disbarment of an attorney is neither, strictly speaking, a civil action nor is it a criminal one. The purpose of the proceedings, as we have heretofore pointed out, is not for the recovery of property or damages, nor is it designated for punishment. Its whole object is to purge the bar of a member who has, since his admission, become unfit to longer retain the authority given him to practice law.
As we have heretofore pointed out, it seems to be the law that the power to exclude an attorney is commensurate with the power to admit. This must be granted.
Our review of the authorities of other states, including those cited by appellant, holding that the right of trial by jury shall remain inviolate, not only where the right existed at common law but by statute, at the time of the adoption of the Constitution, demonstrates beyond peradventure that these courts did not have in mind, and were not considering cases involving disbarment of attorneys. It is very evident to our mind, from the decisions cited by appellant's counsel, as well as those cited by us, that those courts never once associated the idea of a jury trial, as guaranteed by their respective Constitutions, with trials of attorneys in disbarment proceedings. This seems to be evident, for if an accused attorney has the right to demand a jury trial, then, of course, there can be no such thing as "the inherent power" of the court to disbar. The court would be met at the very threshold of the proceedings with the demand for a jury trial. Of course, if an accused attorney has the right to a jury trial, then this necessarily destroys the inherent power of the court over attorneys. The two rights cannot coexist.
We were, and still are, of the opinion that what has been said by the various courts of the Union in regard to the right of trial by jury, had no reference whatever to cases involving the disbarment of attorneys; this for the reason that in many of the states, where the highest courts hold that trial by jury shall remain inviolate, we find the same courts holding that attorneys are officers of the court, admitted by the courts in the exercise of judicial functions, and subject to removal by the court without jury trial.
In a case decided by the Supreme Court of Minnesota on May 5th, this year, entitled, "In the matter of the application of discipline of John D. Greathouse, an attorney at law of the state of Minnesota, 248 N.W. 735," we find that court holding:
"An attorney is not an officer of the state, in a constitutional or statutory sense of that term, but he is an officer of the court, exercising a privilege during goodbehavior. This privilege is granted by the court in the exercise of judicial power, not as a mere ministerial power. In re Garland, 4 Wall. 333, 378, 18 L.Ed. 366; Hanson v. Grattan,34 Kan. 843, 115 P. 646, 34 L.R.A. (N.S.) 240; 6 C. J. 571, § 16." (Italics supplied.)
And we further quote from that opinion:
"The power to admit applicants to practice law is judicial and not legislative, and is, of course, vested in the courts only. Originally the courts alone determined the qualifications of candidates for admission, but to avoid friction between the departments of government, the courts of this and other states have generously acquiesced in all reasonable provisions relating to qualifications enacted by the legislatures. Hanson v. Grattan, 84 Kan. 843, 115 P. 646, 34 L.R.A. (N.S.) 240; State v. Cannon, 196 Wis. 534, 221 N.W. 603."
And continuing, the Minnesota court says:
"The judicial power of this court has its origin in the Constitution, but when the court came into existence, it came with inherent powers. Such power is the right to protect itself, to enable it to administer justice whether any previous form of remedy has been granted or not. This same power authorizes the making of rules of practice.
"The privilege given to an attorney, authorizing him to practice his profession, is always subject to revocation for cause. It is well settled that a court which is authorized to admit attorneys has inherent jurisdiction to suspend or disbar them. This inherent power of the court cannot be defeated by the legislative or executive department. The removal or disbarment of an attorney is a judicial act. Randall v. Brigham, 7 Wall. 523, 535, 19 L.Ed. 285."
We cite this recent case of the Supreme Court of Minnesota for the reason that, while it is committed to the principal that a trial by jury shall remain inviolate, yet it recognizes the fact that disbarment proceedings do not come within that class of cases where the right of trial by jury exists.
We are still persuaded, as we attempted to say in the opinion rendered on the original submission, that the courts of the several states, including our own, in dealing with the *Page 127 right of jury trial, did not have in mind jury trials in disbarment proceedings. From the very nature of such proceedings, and the purposes to be subserved, it could not have been contemplated that the constitutional provision with reference to trial by jury was intended to apply to disbarment proceeding matters wholly within the powers of the court. And we are still of the opinion that this court in the cases cited by counsel for appellant upholding the right of trial by jury did not contemplate cases of the nature of the one under consideration.
But it is insisted by counsel for appellant that inasmuch as the territorial statute and statutes since that day have provided for a jury trial in disbarment proceedings, therefore these statutes have received constitutional sanction, and the Legislature was powerless to confer upon any court, or person authorized to perform judicial functions, the right to disbar an attorney without the benefit of a trial by jury. As above pointed out, we are of the opinion that it was within legislative competence to create a board to initiate and hear these proceedings and render judgment thereon, subject to review by this court, and subject to such review by this court on its own motion, and with the right in this court to hear further evidence.
The board was created in aid of this court, and this court may adopt the findings and conclusion of the board, may alter or modify the same, and may take any action agreeable to its judgment.
The Act of August 9, 1923, appearing in the Code of 1923, as section 6228, expressly provides:
"The causes of removal or suspension of attorneys, and methods of proceeding in reference to such removal or suspension, as now existing, are hereby declared to be cumulative with the right and power herein given to the board of commissioners to reprimand, suspend, exclude, or disbar."
It is also urged that the Act of the Legislature of Alabama, 1931, approved June 6, 1931, Gen. Acts of 1931, page 284, is unconstitutional and void for the reason that the act attempts to amend a previous enactment, which had been codified in its appropriate place in the Code of 1923, and without reference to such codification. We do not think there is merit in this contention. In the case of Harper v. State, 109 Ala. 28, 31,19 So. 857, 859, it is held:
"It is clearly settled in this state, that the legislature may amend an original act which has been amended and repealed, and disregard the intervening amendatory and repealing act. Wilkinson v. Ketler, 59 Ala. 306; State v. Warford, 84 Ala. 15,3 So. 911; Ex parte Pierce, 87 Ala. 110, 6 So. 392; Dunbar v. Frazer, 78 Ala. 538."
We hold, upon the authority of these cases, and the argument supporting the same, that the Act of 1931, page 284, is not void for the reason that it attempts to amend a prior act, which has been carried into the Code.
It is also further urged that petitioner was adjudged guilty upon a vote of less than two-thirds of the entire board, and inasmuch as this court had not approved any rule of the state bar providing that an accused attorney could be suspended or disbarred by a majority vote of a quorum, the judgment of conviction was void. We cannot agree to this contention. The act itself provides that "a majority of the Board shall constitute a quorum and the majority of those present (if a quorum be present) shall be empowered to act as and for the entire Board." This provision of the statute was self-executing, so to speak, and needed no rule of the board, and consequently no approval of the rule, to fix the number of votes necessary to a due and legal conviction of the accused.
We are thus brought again to the consideration of the penalty to be imposed in the matter of the review of the action of the board. This court exercises a broad and comprehensive power including "the taking of additional evidence," if so desired, a power recognized by the Legislature in the language of section 6225 of the Code, wherein it is further said: "The supreme court may, and on petition of the party aggrieved must, in any case of suspension or disbarment from practice, review the action of the board, and may, on its own motion, and without the certification of any record, inquire into the merits of the case and take any action agreeable to their judgment." We are mindful of the responsibility resting upon us in the exercise of this power, and the duties of the court in the protection of the profession and public on the one hand, and on the other an earnest desire that no injustice be done to any individual member of the profession. The present case has been considered with other cases involving like principles of law, but varying in the facts. And to the dual purpose above stated, a final determination of each of these cases has been delayed that a further consideration may be given to the stated principle of law and that the evidence may be more closely examined. As to the law, we are not persuaded any error lies in the foregoing opinion and adhere thereto. As to the facts, the evidence has been again carefully examined. Its discussion here would serve no useful purpose. Suffice it to say the conclusion has been reached that the suspension from the practice of the profession for a period of eighteen months from this date (October 12, 1933) would in this case meet the ends of justice, and that the judgment of the board should be so modified. It will be so ordered.
The judgment of the bar commission is, therefore, modified so as to suspend and restrain *Page 128 the appellant from the practice of the law, as above indicated, and for the period stated.
All the Justices concur in this modification.
Judgment modified; application overruled.
ANDERSON, C. J., and GARDNER, BOULDIN, and FOSTER, JJ., concur.
THOMAS, J., dissents for reasons fully stated on the point indicated in Re Fred Fite, 152 So. 246, on other questions he agrees.