In re Randall , 93 Mass. 473 ( 1865 )

Bigelow, C. J.

An alternative writ of mandamus having issued in this case, and a return thereto having been made by the chief justice of the superior court, setting forth that he transmits 61 a copy of the record of the proceedings of said superior court having any relation to the said petitioner,” the question now arises whether this court are bound to issue a peremptory writ, commanding the superior court to admit the petitioner to the practice of his office of attorney in that court. By the record before us it appears that, at the October term of the superior court held at Boston in the year 1864 for the transaction of criminal business, it was found by that court that “ Samuel H. Randall violated his oath of office as an attorney at law, and was guilty of malpractice and gross misconduct in his said office; and the judgment and order of the court is, that for these causes he be removed from the office of an attorney at law within this commonwealth.” This adjudication is preceded by a statement signed by the presiding judge, setting forth in detail the facts on which his conclusions and judgment were based. These the petitioner does not seek to traverse or deny. By demurring to the return he must be deemed to admit all that is therein set forth, and to put his case on the single issue that, taking the record as it stands, it furnishes no warrant in law for the judgment of removal from his office, pronounced by the court below; that such removal was wrongful and erroneous ; and that it is the duty of this court to reinstate the petitioner therein.

Upon careful and deliberate consideration of the case, thus presented, the court are unanimously of opinion that the petitioner fails to show any sufficient ground for the relief which he seeks. In the first place, it is too clear to admit of debate that in a proceeding of this nature, the doings of inferior courts cannot be revised or corrected in matters which are within their jurisdiction, and in regard to which they are authorized to exercise a judicial discretion, and to render a judgment according to the conclusions of fact and law at which they may arrive. If a party is aggrieved by the action of a judicial tribunal in relation to such matters, he must seek redress in other modes than by writ of mandamus. Gray v. Bridge, 11 Pick. 188. Rea v. Commissioners of Middlesex, 13 Pick. 225. Strong, petitioner, 20 Pick. 484, 497. This doctrine is not seriously controverted by the petitioner. He does not place his main demand for relief on the ground that the conclusion and judgment of the court below were erroneous as to matters of fact, or that the judgment of removal pronounced against him can be inquired into and revised here so far as it involves only an investigation of the merits of the case on which his removal was founded.

We are, then, in the next place, to consider whether he is entitled to relief on the other ground set up by him, namely, that the whole proceedings were unauthorized by law and invalid, because there was no rule, complaint or attachment made or issued, setting forth any act of misconduct or malpractice by him, and no summons or other process was ever procured, sent out or served to bring him before the court. For this reason he contends that the judgment and order of the superior court for his removal constituted a conclusion without legal premises, a usurpation against law, whereby the whole proceeding was illegal and void ab initia. The argument urged in support of this position is put on the ground that by this course of proceedings the constitutional rights of the petitioner were invaded, and that he was held to answer in violation of the 12th article of the Declaration of Rights of the Constitution of Massachusetts-there having been no full, plain, substantial and formal descrip tian of any offence made or filed against him, and that he has been thus deprived of his rights and privil-ges as an attorney contrary to the law of the land.

There would be great force in this argument, if it were clear that the proceedings for the removal of the petitioner were of a nature to come within the class of cases to which the provision of the Declaration of Rights on which the petitioner relies is applicable. But we do not think that it can in any just and proper sense be deemed a criminal procedure in which a party has a right to insist on a full, formal and substantial description of the matter with which he is charged, or that it is essential to the validity of the order or judgment of the court that it should be founded on legal process according to the signification of the words “per legem terree,” as used in Magna Charta and in the Declaration of Bights, that is, on complaint or indictment, followed by a trial in a regular course of legal and judicial proceedings. 2 Inst. 50. Fisher v. McGirr, 1 Gray, 37. On the contrary, at common law an attorney was always liable to be dealt with in a summary way for any ill practice attended with fraud or corruption, and committed against the obvious rules of justice and honesty. No complaint, indictment or information was ever necessary as the foundation of such proceedings. Usually they are commenced by rule to show cause, or by an attachment or summons to answer; but these are issued on motion or bare suggestion to the court, or even on the knowledge which the court may acquire of the doings of an attorney by their own observation. No formal or technical description of the act complained of is deemed requisite to the validity of such a proceeding. Sometimes they are founded on affidavit of the facts, to which the attorney is summoned to answer ; in other cases, by an order to show cause why he should not be stricken from the roll; and when the court judicially know of the misconduct of an attorney, they will of their own motion order an inquiry to be made by a master without issuing any process whatever, and on the coming in of his report will cause his name to be stricken from the roll. Bac. Ab. Attachment, A, Attorney, H, and cases cited. The King v. Southerton, 6 East, 143. In the Matter of Elsam, 3 B. & C. 597; S. C. 5 D. & Ry 389.

Nor can a judgment of removal be properly and technically considered as a punishment for a crime or offence. In Ex parte Brounshall, Cowp. 829, Lord Mansfield said, “ To strike an attorney from the roll ” is not in the nature of a punishment, it is done “ because he is an unfit person to practise as an attorney ; the court exercise their discretion whether a man, whom they formerly admitted to the bar, is a proper person to be continued on the roll.”

Such would seem to be the character of the proceedings under our statute, Gen. Sts. c. 121, § 34, which provide that removal from the bar shall not exempt an attorney from any other punishment which may be provided by law for his acts of malpractice and misconduct. ,If removal from the bar is to be regarded as a punishment for an offence, then it would follow that a person might be liable to two criminal prosecutions, be subject to two separate judgments, and be made to suffer two distinct punishments, for one and the same act or offence. We cannot think that the legislature contemplated any such result. The more reasonable inference is that the power of removal was given, not as a mode of inflicting a punishment for an offence, but in order to enable the courts to prevent the scandal and reproach which would be occasioned to the administration of the law, by the continuance in office of those who had violated their oaths or abused their trust, and to take away from such persons the power and opportunity of injuring others by further acts of misconduct and malpractice. Upon these grounds, we are of opinion that the petitioner fails to support the position on which he relies as the foundation for his claim to relief in this proceeding.

But there is another view of this case which seems to furnish decisive reasons for a refusal to issue a writ of mandamus to require the court below to restore the petitioner to his standing as an attorney. The proceedings as certified to us show that the petitioner appeared before that court to answer to the charges of misconduct and malpractice which had been brought to the attention of that tribunal by the grand jury in attendance thereon ; that although there were no formal written charges preferred against him, he fully understood their nature and character, and was allowed ample time and opportunity to be heard thereon, and that he had a full hearing on the merits. The record now before us does not show that he raised the objection, on which he now insists, that he was not duly brought before the court by legal process, and that there was no proper allegation in writing of the misconduct imputed to him. But on recurring to the documents appended to the petition for a certiorari presented to this court at a former term, we find that such objection was made and overruled, and that the petitioner presented exceptions, setting forth the rulings on this point, which were not allowed by the court. These exceptions the petitioner did not attempt to prosecute by proving the same according to the provisions of Gen. Sts. c. 115, § 11. He thereby in effect abandoned them. It is not alleged in the petition for a mandamus, nor does the petitioner now aver, that he did not in fact fully comprehend the subject matter of the charges of misconduct made against him, or that he did not have a full hearing thereon; nor does he contend that the finding of the court in relation to the facts was not warranted by the evidence adduced at the hearing. Such being the state of the case, we are of opinion that the petitioner must be deemed to have waived any right to ask us to interfere by a writ of mandamus in his behalf, on the ground that there has been a technical omission to issue an attachment against him, or summons to appear, or a rule to show cause. Undoubtedly it would have been regular and proper to issue such process. But it was not essential, and the omission to issue it has worked no barm to the petitioner. Certainly he has alleged none, nor has he offered to show any. For aught that we see in the record, the finding of the court as to matters of fact was correct, and the judgment of removal well warranted by the evidence adduced at the hearing. If, therefore, we issued a writ of mandamus on the ground alleged by the petitioner that there was no proper process, the result would be that we should restore a person to his office who was unfit to hold it, and who might be removed therefrom immediately on due proceedings had. But a writ of mandamus is not a writ of right. It is within the discretion of the court whether it ought , to be issued in each case that arises for adjudication. Strong, petitioner, 20 Pick. 497. The King v. Commissioners of Excise, 2 T. R. 385. It seems to us that we should be wanting in a sound judicial discretion, if, on the case presented by the petitioner, we interfered by a writ of mandamus in his behalf.

Peremptory mandamus denied.

2 . The power to remove an attorney for misconduct is incident to every court, and such removal is in the nature of a punishment for contempt. If the proceedings are sufficient for the punishment of a contempt, they are sufficient for this purpose. See Heard v. Pierce, 8 Cush. 338; Tenney’s case, 3 Fost. (N. H.) 166; State v. Matthews, 37 N. H. 450 ; Bryant’s case, 4 Fost. (N. H.) 149 ; 18 Law Reporter, 421, & seq.; Ex parte Chetwynd, Re Mulock, 4 Amer. Law Reg. (N. S.) 298. The Gen. Sts. c. 121, § 34, simply declare the common law *s to the power to remove attorneys.