In Re Sizer and Gardner ( 1923 )

This is an original proceeding instituted in this court having for its object the disbarment of F.P. Sizer and H.A. Gardner, of Monett, Missouri, from practicing law in the courts of this State. The petition is signed by A.L. Cooper of the Kansas City Bar and J.P. McCammon of Springfield, Missouri.

The present hearing is limited to the motion to dismiss the cause because of the lack of jurisdiction of this court to try it. It reads (formal parts omitted):

"Now come F.P. Sizer and H.A. Gardner and move the court to dismiss this proceeding, for the reason that this court is without jurisdiction to hear or determine the same." Counsel for defendants have made a reasonably fair summary of the petition filed against them, which is as follows:

"It will not be necessary for a full understanding of the issues presented by this motion to dismiss, to reprint the petition or complaint which consists of some forty printed pages, mostly evidence. It will suffice to say that said complaint charges that the respondents, Sizer and Gardner, are practicing attorneys-at-law in this State, and have been for many years partners in such profession; that they have been guilty of professional misconduct in the practice of law and have especially been guilty of violating Section 668, Revised Statutes 1919, in that said attorneys have divided fees received in the practice of law with persons not licensed to practice law. Defendants are charged with having had in their employ persons not licensed attorneys to solicit and procure business for said Sizer and Gardner under an agreement to divide the fees so received; that they have been guilty of champerty and maintenance in procuring and prosecuting cases, in that they have agreed, as a part of the contract of employment as attorneys, to pay all the costs of the litigation and to furnish their clients money to live on pending the litigation.

"The complaint mentions eight specific and separate cases, or rather causes of action in connection with which the defendants are alleged to have been guilty of the acts and practices aforesaid, amounting, as it is claimed, to malpractice and misconduct in their professional capacity, authorizing their removal from the practice of law, as provided by Section 681, Revised Statutes 1919. That the eight specific instances mentioned are causes of action rather than actual court cases, as it is not alleged that suits thereon were ever brought in any court. If suits were brought in any instance, it is not claimed that same ever reached this or any other appellate court in this State. The malpractice of which complaint is made is in no way connected with any case or proceeding pending or heard in this court.

"All of the eight specific causes of action, in connection with which the alleged malpractice is claimed to have occurred, are damage cases against railroads, arising from personal injuries.

"Four of the cases mentioned affected the St. Louis-San Franciso Railroad; two affected the Missouri, Kansas Texas Railroad; one the Midland Valley Railroad, and one the Arkansas Central Railroad. In four of the cases mentioned, the cause of action accrued in other states — in Arkansas and Oklahoma. Two of the said railroads do not enter this State, and no suit could have been brought against same in the courts of this State. The whole period of time covered by these specific causes of action is nearly ten years, the first one having accrued in 1914.

"These facts are mentioned to show what a wide range this investigation will cover if jurisdiction is retained by this court, and how remotely, if at all, this court is connected with the basic facts of this proceeding. Most of the acts of malpractice charged occurred in other states, and not a single act was connected with or affected this court or any case or proceeding ever pending therein."

The first insistence made by counsel for defendants is: The various courts of this State are created by our State Constitution and the jurisdiction of each court is derived from and fixed by such Constitution. No court has power to exercise jurisdiction (inherent or otherwise), nor can the Legislature confer jurisdiction on any court in contravention of the terms of the Constitution. Where jurisdiction is limited or forbidden by the Constitution, the Legislature is powerless to confer such jurisdiction. And they cite the following cases: In re Waugh, 72 P. 710; Winsor v. Bridges, 64 Pac. (Wash.) 781; State ex rel. v. Nast, 209 Mo. 708, 721; State ex rel. v. Ryan, 182 Mo. 349, 355. And that the Supreme Court is one of the courts created by the Constitution and whose jurisdiction is defined and limited thereby.

The jurisdiction of the Supreme Court and the limitation thereof contained in Section 2, Article VI, of the State Constitution, which reads: "The Supreme Court, except in cases otherwise directed by this Constitution, shall have appellate jurisdiction only, which shall be coextensive with the State under the restrictions and limitations in this Constitution provided."

It is next insisted by them that the jurisdiction of the Supreme Court is therefore expressly limited to such as is appellate, and all original jurisdiction is prohibited except as is otherwise expressly directed by such Constitution. Section 3, Article VI of the Constitution, makes the exception to the appellate jurisdiction of this court and confers certain definite original jurisdiction, to-wit: To exercise a general superintending control of inferior courts and to issue, hear and determine certain original remedial writs therein specified. There are certain other exceptions to the jurisdiction of the Supreme Court being appellate only, in other clauses of the Constitution, but same are not in anywise involved here. The Legislature is powerless to enlarge or curtail such original jurisdiction, and any statute attempting to do so is void. [11 Cyc. 706; Foster v. State, 41 Mo. 62; Vail v. Dinning,44 Mo. 210; State ex rel. v. Flentge, 49 Mo. 488, 490; State ex rel. v. Miles, 210 Mo. 127, 184; State ex inf. v. Towns, 153 Mo. 91, 110; Wait v. Railway,204 Mo. 491; 504; In re Letcher, 269 Mo. 140, 150; State ex rel. v. Locker, 266 Mo. 384, 389, 391; State ex rel. v. Tincher,258 Mo. 1, 15, 17; Ex parte Bethurum, 66 Mo. 546, 553; State ex rel. v. Harty, 275 Mo. 59.]

Counsel for each party have with much diligence and great learning, briefed and argued this case, as a perusal of the cases cited on each side will show; and after a careful reading of them I have reached the conclusion in my own mind that the contentions of counsel for defendants are correct, and that on principle this court has no jurisdiction of this case, and that it should be dismissed for that reason; but a majority of the members of this court are of a contrary opinion, and since this court has been holding contrary to my views here expressed for practically a century, I, myself, feel that it would be unwise to overrule the long line of cases extending over so long a period.

We have repeatedly held that this court has inherent power and jurisdiction to disbar attorneys from practicing law for the commission of acts in violation of their professional duty. [State ex rel. v. Reynolds, 252 Mo. 369; State ex rel. v. Mullins, 129 Mo. l.c. 236; State ex rel. v. Harber, 129 Mo. 271; State ex rel. Jones v. Laughlin, 73 Mo. l.c. 446; In re Gorsuch, 214 P. 794.]

And it is true as stated by counsel for the petitioners, "The people of Missouri have, by the adoption of successive constitutions containing identically the same provisions as to the powers of the Supreme Court, which powers have for more than a century been construed to embrace the jurisdiction to disbar attorneys for offenses, conferred constitutional jurisdiction upon this court to that end." This statement is verified by the following constitutional provisions and decisions of this court: Laws of Territory of La. 1804, sec. 4; Constitution of 1820, Art. V; Laws 1824, "Attorneys," secs. 2-6; Constitutions of 1835, 1845, 1855 and 1865; State v. Foreman, 3 Mo. 602; Strother v. State, 1 Mo. 605; State v. Watkins,3 Mo. 480; Sanders v. Anchor Line, 97 Mo. 26, 6 R.C.L. 54.

The re-adoption of the constitutional provisions now under consideration so many times with the interpretation placed upon it by this court, to say the least, is very persuasive evidence that the real meaning of the provision was just what this court had so long been holding that it meant.

There has been so much said and written on this question, that it would be hard for me to find anything new to say upon it at this late date, so I will not prolong this opinion by attempting to add anything to the subject which has been so ably discussed so many times in the past.

For the reasons stated, in my opinion, the motion to dismiss should be overruled, and it is so ordered. Walker, J., concurs;Graves, Ragland and White, JJ., concur in the result; DavidE. Blair, J., dissents in separate opinion; James T. Blair,J., dissents.