State v. Cannon

The following opinion was filed October 9, 1928:

Owen, J.

This is a proceeding instituted in this court upon the complaint of the State Bar Commissioners for the disbarment of Raymond J. Cannon. A motion was made to dismiss the proceeding on the ground that the court was without jurisdiction to entertain the same. The motion was denied by order of the court dated September 26, 1928, and it will be the purpose of this opinion to state the reasons therefor.

For many years we have had a statutory enactment vesting exclusive power in this court to admit attorneys. The practice thus declared has been followed. Prior to the enactment of ch. 314, Laws of 1927, the statute declared that proceedings for the disbarment of attorneys should be tried in the circuit court in some circuit adjoining the circuit in which the accused attorney resided. The practice thus declared was also followed. By ch. 314, Laws of 1927, it was provided that proceedings for the disbarment of attorneys should be brought exclusively in this court.

By sec. 3, art. VII- of the constitution it is provided that “The supreme court, except in cases otherwise provided in this constitution, shall have appellate jurisdiction only,” and by sec. 8 of the same article it is provided that “the circuit courts shall have original jurisdiction in all matters civil and criminal within this state, not excepted in this constitution, and not hereafter prohibited by law.” No provision of the constitution in terms vests this court with original jurisdiction over proceedings of this character, and it is contended by the defendant that it is beyond the power of the legislature to vest such jurisdiction in this court. If the jurisdiction of this court in the premises depends upon legislative authorization, there appears to be much of substance to the defendant’s contention. However, before examining the power of the legislature in this respect, we deem it pertinent to investigate the source of the power so generally exercised by courts to admit and disbar attorneys. If it be determined that such power is not referable to written law, then it will be unnecessary to consider the potency of the legislation directing proceedings for the disbarment of attorneys tó be instituted in this court.

In order that any human agency may accomplish its purposes, it is necessary that it possess power. The executive must have power to direct and control his business. The superintendent of the works must have power to direct his men. In order to accomplish the purposes for which they are created, courts must also possess powers. From time immemorial, certain powers have been conceded to courts because they are courts. Such powers have been conceded because without them they could neither maintain their dignity, transact their business, nor accomplish the purposes of their existence. These powers are called inherent powers. In In re Court Room, 148 Wis. 109, 121, 134 N. W. 490, it was said:

“The authorities, in so far as any can be found on the subject, are to the effect that a constitutional court of general jurisdiction has inherent power to protect itself against any action that would unreasonably curtail its powers or materially impair its efficiency. A county board has no power to even attempt to impede the functions of such a court, and no such power could be conferred upon it.”

In In re Bruen, 102 Wash. 472, 172 Pac. 1152, the supreme court of Washington said:

“The inherent power of the court is the power to protect itself; the power to administer justice whether any previous form of remedy had been granted or not; the power to promulgate rules for its practice; and the power to provide process where none exists. It, is true that the judicial power of this court was created by the constitution, but upon coming into being under the constitution, this court came into being with inherent powers.”

Among such powers is the power to preserve order, command obedience to its orders, and to punish for contempt: State ex rel. Rodd v. Verage, 177 Wis. 295, 187 N. W. 830; the power to appoint a janitor: In re Janitor of Supreme Court, 35 Wis. 410; to insist upon suitable quarters: In re Court Room, 148 Wis. 109, 134 N. W. 490; to inquire concerning the professional conduct of members of the bar: Rubin v. State, 194 Wis. 207, 216 N. W. 513; People ex rel. Karlin v. Culkin, 248 N. Y. 465, 162 N. E. 487.

Due to the fact that in this country the legislative department of government has presumed to prescribe qualifications for the admission of attorneys to practice law, some confusion exists as to whether the power to admit and disbar attorneys is inherent in courts. In In re Goodell, 39 Wis. 232, Chief Justice Ryan expressed the opinion that such power is inherent in the courts, although the question was not definitely decided. His language, however, has been quite generally accorded the force of precedent by courts and text-writers upon the subject. In that casé the court denied the application of Miss Goodell for admission to the bar of this court because, it was said, a woman does not possess the natural qualifications essential to the practice of the law. Thereafter the legislature enacted that “No person shall be denied admission or license to practice as an attorney in this state on account of sex,” and in 48 Wis. p. 693 will be found an opinion of the court written by Cole, J., admitting Miss Goodell to practice. Chief Justice Ryan dissented. In that opinion it was said:

“It may admit of serious doubt whether, under the constitution of this state, the legislature has the absolute and exclusive power to declare who shall be admitted as attorneys to practice in the courts of this state; or whether the courts themselves, as a necessary and inherent part of their powers, have not full control over the subject.”

The majority of the court, however, without determining the power of the legislature, acted under the statute “in deference to the wishes of a co-ordinate branch of the government.”

In Vernon County Bar Asso. v. McKibbin, 153 Wis. 350, 141 N. W. 283, the court, by Mr. Justice Marshall, said:

“It is unnecessary to discuss, or express an opinion, as to whether, prescribing the standard for admission to the bar, is a judicial or legislative function. The court has heretofore spoken on the subject and, whether right or wrong, is immaterial to this case. For myself, I indorse wholly what was said in In re Mosness, 39 Wis. 509. It will be found, in my judgment, fully vindicated in the several cases above cited and, in general, by all considerate discussion of the subject.”

While in the cases cited the court refrained from holding that it had inherent power to admit and disbar attorneys, the language of the court left no doubt concerning the views entertained by the members of the court. In a number of cases in recent years, the court has assumed the power to disbar attorneys. Application of State Board of Law Examiners, 175 Wis. 66, 184 N. W. 379; In re Richter, 187 Wis. 490, 204 N. W. 492; In re Pierce, 189 Wis. 441, 207 N. W. 966; State ex rel. Board of Law Examiners v. Podell, 189 Wis. 457, 207 N. W. 709; In re Stolen, 193 Wis. 602, 214 N. W. 379, 216 N. W. 127. While the Application of State Board of Law Examiners and the Pierce and Podell Cases were to strike the names from the roll of attorneys of this court on the ground that they had procured their admission by fraud, which perhaps presents a somewhat different question, the Richter and Stolen Cases were cases in which attorneys were disbarred because of their misconduct as attorneys at law. Upon the challenge here made to the jurisdiction of this court to disbar attorneys m the exercise of original jurisdiction, we have closely examined the power of this court in that respect which was assumed in the other cases. We conclude that the power in the other cases was properly exercised and that it cannot be challenged here. It is not a power derived from the constitution or the statutes of this state. It is a power which is inherent in this court. It is a power that inheres because attorneys at law are officers of the court. As such they are privileged to invoke the jurisdiction of the court. In certain instances they have control over the writs of the court. They are responsible in no small degree for the quality of justice administered by the courts. They stand in a relation of trust and confidence to the courts. Every court must have a bar. It is a necessary adjunct of a court. It is the function of the bar to render assistance to the courts in administering exact justice and not to frustrate the courts in the accomplishment of this high purpose. 'A court must in no small degree rely upon its bar. The bar- should be composed of those possessed of learning, character, probity, and honesty. Under our form of government, where the judicial constitutes an independent branch, the character of those who stand in this relation to the court should be of the court’s choosing and under the supervision of the court, and other branches of the government should not be permitted to embarrass or frustrate judicial functions by the intrusion of incompetent or improper officers upon the courts. Courts will defer to reasonable legislative regulation, but this deference is one of comity or courtesy rather than an acknowledgment of power. This view is without doubt supported by the great weight of authority.

There are no statutes regulating the subject of disbarment in certain states. In such states courts have proceeded to exercise the power of disbarment and to invent their own procedure. Ex parte Cashin, 128 Miss. 224, 90 South. 850; Lenihan v. Comm. 165 Ky. 93, 176 S. W. 948, L. R. A. 1917 B, 1132. In so proceeding they acted under their inherent power and did not deem it necessary that jurisdiction in such behalf should be conferred by statute or constitutional provision.

Indeed, such was the practice in this state until the enactment of ch. 84, Laws of 1903, which chapter constituted the first legislative enactment upon the subject of disbarment. Prior to that time disbarment proceedings were instituted upon an order to show cause issued by the judge of the circuit court of the county in which the accused was practicing. In re Orton, 54 Wis. 379, 11 N. W. 584; In re O-, 73 Wis. 602, 42 N. W. 221; Flanders v. Keefe, 108 Wis. 441, 84 N. W. 878. Prior to legislative action, our courts acted under their inherent power to disbar. The fact that since such legislation they have deferred to the practice prescribed by the legislature should cast no doubt upon their inherent power in the premises.

Among the great number of cases holding it to be an inherent power of courts to admit and disbar attorneys, merely deferring to statutory regulations on the subject, we content ourselves with citing the following: Ex parte Secombe, 19 How. 9; Ex parte Garland, 4 Wall. 333; Randall v. Brigham, 7 Wall. 523; Herts v. U. S. 18 Fed. (2d) 52; Danforth v. Egan, 23 S. Dak. 43, 119 N. W. 1021; Hanson v. Grattan, 84 Kan. 843, 115 Pac. 646; In re Day, 181 Ill. 73, 54 N. E. 646; In re Bruen, 102 Wash. 472, 172 Pac. 1152.

It follows from what has been said that the statute confers no jurisdiction upon this court to entertain the present proceeding. That jurisdiction inheres in' the court. It exists by virtue of the fact that this is a court, and the power sprang into being independent of any written law when the court was created.