State ex rel. Storts v. Peabody , 63 Mo. App. 378 ( 1895 )

Rombauer, P. J.

The relator is an attorney duly licensed to practice law in this state, and was enrolled as such attorney in the police court of the first district of the city of St. Louis, in which court the defendant officiates as judge. On the eighteenth day of June, 1895, the defendant entered an order on the docket of the court striking the relator’s name from the roll of attorneys in that court, and suspending him from practice therein, until further orders of the court. The circuit court thereupon issued its writ of alternative mandamus against the defendant, citing him to show cause why he should not be commanded to permit the relator to appear and practice in said police court. To this writ the defendant made return stating, in substance, that by virtue of sections 25 and 26, article 4, of the. charter of the city of St. Louis, he was authorized to exercise the powers and perform the duties which may be prescribed by ordinance, and that by an ordinance of the city, in force since 1892, it is prescribed “that no attorney shall practice in said court (the police court), unless his name appear on the roll of attorneys by authority of the police justice, and any attorney’s name may be stricken therefrom by order of the police justice for unworthy conduct, or character derogatory to the respect due to the court.” The return then goes on to state that the relator was guilty of contemptuous and overbearing conduct toward the defendant in open court (stating such conduct in detail), and that thereupon the defendant ordered his name to be stricken from the roll of attorneys. To this return the relator demurred. His demurrer was sustained, and, the defendant declining to plead further, the circuit court issued its peremptory mandamus commanding the defendant to reinstate the relator. Hence this appeal. •

Before proceeding to consider the main point in the case, we will briefly dispose of one other point urged upon the argument. The defendant contends that mandamus is not the proper remedy. It is doubtful whether this question is properly raised by defendant’s return, which is in the nature of a plea in bar, but, even if properly raised, its solution depends on the ulterior question of jurisdiction. That mandamus can not be invoked if the defendant had jurisdiction to enter the order complained of is conceded by the relator, and .is an elementary proposition. State ex rel. v. Oliver, 116 Mo. 188, and cases cited. The question, therefore, -is, whether the defendant had-jurisdiction to enter the order complained of. If he had, mandamus will not lie. If he had not, mandamus is the proper remedy. State ex rel. v. Laughlin, 73 Mo. 443.

The jurisdiction is claimed by virtue of the provisions of the city charter set out in the return, and. by virtue of the city ordinance likewise set out. The constitution provides that the charter of the city of St. Louis and its amendments shall always be in harmony with, and subject to, the constitution and laws of the state of Missouri, and it stands conceded that if, under the laws of the state of Missouri, the defendant could not -be deprived of his privilege to exercise his calling as an attorney at law, except by a judgment of disbarment pronounced against him by a court of general jurisdiction, then the order disbarring the defendant from practicing in the police court was beyond the jurisdiction of that court, and is void.

In State ex rel. v. Laughlin, supra, it was held that, as the legislature has specially provided that an attorney may be suspended or removed from practice upon such charges being exhibited and proceedings therein had in the supreme court, the St. Louis court of appeals, or the circuit court, all proceedings for suspension or disbarment must be had in the courts named. The defendant contends that that view'-has been modified by the supreme court in State ex rel. v. Mullins, 31 S. W. Rep. 744, but that contention, is not borne out by that case. That case was a proceeding for disbarment instituted in the supreme court, and the court, in discussing the power of courts over attorneys, says: “While an attorney at law is an officer of -the court in which he practices his profession, he is not the holder of an office of public trust, and such court has an inherent power and control over him, and may for good cause— that is, for professional misconduct — suspend him from the practice, or strike his name from the role of attorneys, in the absence of statutory enactment prohibiting it from doing so, or prescribing the mode in which such ;proceedings shall be conducted.” This case, therefore, concedes what the Laughlin case directly asserts, that, where the statute prescribes the mode of disbarment, it operates as an abridgment of the common law power inherent in courts to regulate the conduct of their attorneys, even by suspending or expelling them.

Under the statute of 1889 an attorney’s license issued to the relator authorized him to appear as attorney in all the courts of the state. He became by enrollment an attorney of the police court, subject to the laws of the state. True it is that this was a mere privilege granted to the relator, which the state could revoke at any time. It could also prescribe the terms on which the relator could exercise it. Had the charter of the city of St. Louis prescribed that its police justices should possess power to disbar attorneys from practicing before them, the question whether such-power was taken away by a subsequent general law providing for the disbarment of attorneys would properly arise for discussion. That' question is ably argued by defendant’s counsel, but we deem it foreign to the issues in this case. ■ •

By the charter of the city of St. Louis, the police court has simply power to enforce all legal orders and judgments as a court of record may, and to exercise the powers and perform the duties which may be prescribed by ordinance. The power thus granted is subject to the restriction that it shall be in harmony with the laws of Missouri. An ordinance granting to the police justice authority to disbar attorneys in his court is not in harmony with the laws of Missouri, as- expounded in State ex rel. v. Laughlin, supra. The question, therefore, is not one of repeal of a grant, but one of extent of a grant. The grant under which the defendant claims to have acted was never made to the city, and hence could not be repealed.

All the judges concurring,

the judgment is affirmed.