State v. Crosby

The facts sufficiently appear in the opinion. The petition recites that the relator is a regularly admitted and practicing attorney of this state; that on the 10th day of July, 1897, one N. I. Morgan, Second Lieutenant of Battery A, Nevada National Guard, was charged with violating the articles of war; that on the 13th day of July, 1897, the defendants were detailed, by order, to constitute a general court-martial for the trial of such persons as might be brought before it; that on the 24th day of July, 1897, the said court-martial was organized, pursuant to said order, at Virginia City, Nevada, and selected Colonel J. J. Crosby as President thereof, and Colonel F. C. Lord as Judge-Advocate; that thereupon the said court-martial adjourned to the 17th day of August, 1897; that said Morgan was cited to appear before said court-martial for trial upon the charges preferred, and that on the last named date he did appear before said court-martial, with the petitioner, whom he had retained and employed to conduct his defense, prepared and ready for trial. Objection was made to the petitioner appearing and conducting said defense, and the court-martial sustained the objection, and refused the petitioner that right and privilege. Upon these facts, the petitioner asks the court to direct the said court-martial to vacate its order refusing petitioner such right, and to allow him to appear and make the defense.

The defendants interpose a demurrer to the petition and set up by answer affirmative matter to justify said order.

Section 8, article 1 of our constitution declares that "No person shall be tried for a capital or other infamous crime (except in cases of impeachment, and in cases of the militia when in active service, and the land and naval forces in time of war, or which this state may keep in time of peace, with the consent of congress, and in cases of petit larcency, under the regulation of the legislature), except on presentment or indictment of a grand jury, and in anytrial in any court whatever, the party accused shallbe allowed to appear and defend in person, and with counsel,as in civil actions." * * *

The Court of Appeals of New York, discussing the New York constitution, which was, in every respect, similar to the above provisions of our constitution, say: "The question presented in this case is whether a person prosecuted for an offense before a court-martial, organized under the laws of this state, can demand, as a constitutional right, that he be allowed to defend with counsel, or whether this privilege is a matter of favor and discretion. * * * `In any trial in any court whatever,' is certainly comprehensive enough to embrace these tribunals. * * * Whatever the accused can say or do in his defense, he may say or do by counsel." (People, ex rel. Garling, v. Van Allen et al.,55 N. Y. 33.)

The action was a proceeding in certiorari by the accused, and is not cited for the purpose of determining the right of the relator, in the case at bar, to the writ prayed for. The court-martial, having been organized under our statute, and Morgan, the accused, having been cited to appear before the same for trial upon the charges preferred, the provision of our constitution, and the authority above cited, gave him the right to make such defense by counsel. The accused having chosen and employed the relator to make such defense, the question then to be determined is to what extent can the court interfere with or abridge that right, and the rights of the relator under his employment. Other provisions of our law, than the one cited, must determine this question. Our legislature, by the provisions of the act relative to attorneys and counselors-at-law, approved October 31, 1861, has attempted to define the rights of the relator under his said employment, and to prescribe his duties and liabilities thereunder. (Gen. Stats. sec. 2529,et seq.)

This statute forbids, under penalty, any person to practice law in any court in this state, except a justice's, recorder's or municipal court, without having received a license as attorney or counselor, as required by other provisions of the act. (Gen. Stats. sec. 2537.)

The exception in this section clearly limits the right of appearing as an attorney before courts-martial to those who have obtained the required license. The relator was qualified to act in this respect. The relator being qualified to act as counsel for the accused before the court-martial, under his employment, and not having been discharged, it is further provided by the same act that a change of counsel might be made in the action, at any time before final judgment or determination, upon relator's own consent, filed with the clerk, or entered upon the order of the court or judge thereof, on application of the client. (Gen. Stats. sec. 2539.)

There is no pretense that any change of counsel was asked by either the accused or the relator; but it is claimed by the defendants, in justification of their conduct in refusing relator the right to appear and defend the accused, that the allowance of counsel, in such cases, is a matter of courtesy, and that the court-martial has the power to exclude a person objectionable to it from appearing as counsel for the accused; that the relator was objectionable to the court-martial, and in contempt thereof, in that the relator had applied to the district court of the state in behalf of the accused for a writ of injunction to prevent the said court-martial from trying the accused upon the specified charges; that in the application for the writ of injunction, it was alleged that the citizens' committee for the celebration of the Fourth of July had issued invitations to the militia of Storey county to participate in said celebration; that it was also alleged in said application that the judge-advocate of said court-martial was detailed to sit in judgment upon his own charges contrary to law; that the relator, in his argument upon said application, sought to prejudice the court-martial and its officers in the eyes of the community wherein it had been convened; that the relator has also sought to have the order creating said court-martial revoked.

The contention that the allowance of counsel is a matter of courtesy is fully met by the provision of our constitution above cited. There is no court, within this state, possessing the power to deny this right. Whether or not the alleged conduct of relator was in contempt of the court-martial is not material, yet we suggest that very often proceedings are instituted before one tribunal questioning, and even denying, the authority and power of another tribunal.

Admitting that the alleged conduct of relator was in contempt of the court-martial, had it the power to suspend or interrupt him in the exercise of his rights as a licensed attorney for such contempt? We cannot so hold.

Section 14 of the act relating to attorneys, above cited, provides that an attorney may be removed or suspended by the supreme court, and by no other court, for cause, and the sections following prescribe the manner of proceeding, and the judgment upon conviction. (Gen. Stats. sec. 2542, etseq.)

No power or authority, so far as we have been able to find, is given to any other than the supreme court to suspend an attorney in the exercise of his rights for any cause and for any length of time. He must be charged as prescribed by the statute, and, upon those charges, has the right of trial. If the alleged conduct of the relator was contemptuous, our statute provides an ample penalty for it, and the court-martial is given power and authority to as fully punish for such conduct, as the judges of the district courts have under the laws of this state. (Gen. Stats. sec. 670; sec. 3482, et seq.)

It is further contended that the relator has mistaken his remedy; that the court-martial being a court within the meaning of the constitution, and having made its order precluding the relator from defending the accused, its determination of that matter, although it may have been erroneous, is final, and cannot be reviewed in this proceeding. We cannot sustain this contention.

Our statute authorizes the issuance of the writ of mandate "by any court in this state, except a justice's, to any inferior tribunal, * * * to compel the admission of a party to the use and enjoyment of a right * * * to which he is entitled, and from which he is unlawfully precluded by such inferior tribunal," * * * in all cases where there is not a plain, speedy and adequate remedy in the ordinary course of law. (Gen. Stats. secs. 3469, 3470; State v.McCullough, 3 Nev. 202; State v. Cronan,23 Nev. 437.)

If Morgan, the accused, were complaining of the denial of his constitutional right to be defended by counsel, thenmandamus would not be the proper proceeding; but the relator is not a party to the proceedings against Morgan, pending before the court-martial. He has no right to appeal therefrom, and, so far as we can see, no other remedy in the ordinary course of law. He is denied a right unlawfully — by a tribunal that has no authority whatever to act in the matter, and is without remedy, except by mandamus.

Counsel for defendants cites State, ex rel. Treadway, v. Wright, 4 Nev. 119, and State, ex rel. Hitzel, v. Commissioners, etc., 8 Nev. 309, as supporting the last contention, but we do not think the cases can be so construed. In both cases, it appears that the inferior tribunals had determined matters which they were expressly authorized to determine; that they had acted upon matters clearly within their power and jurisdiction, while, in the case at bar, the court-martial assumed to do what the law expressly says it shall not do, viz: suspend an attorney in the exercise of his rights as such.

For these reasons the writ of mandate will be issued as prayed for.