Jones v. Sanderson , 287 Mo. 176 ( 1921 )

I agree with my learned brother wherein he says that this case should be ruled against the officers of the State Bar Association and in favor of the appellant, Sanderson, in obedience to the law as declared in State ex rel. Selleck v. Reynolds, 252 Mo. 369. Sanderson was proceeded against under the same statutes as was Selleck. The laws were not changed until 1919 (Laws of 1919, p. 151), and this cause was begun before the Act of 1919 became effective. The trial was had and the judgment entered before the Act of 1919 became effective. So that the Revised Statutes of 1909, as quoted in Selleck's case, supra, was the governing law. I would not add this separate concurrence but for the fact that the learned representatives of the State Bar Association urge that Selleck's case sustains this judgment. As the writer of the Selleck opinion, I feel called upon to disabuse the minds of counsel upon this contention.

The petition for disbarment in this case clearly charges indictable offenses both as against the State and Federal laws, and this is not seriously controverted by learned counsel for the Bar Association. What they contend is that under the rule in Selleck's case the court had the right to suspend Sanderson, because the charges were of indictable offenses, and Sanderson could not complain because his suspension was for only twelve months. They contend that the suspension might have run for the statutory period of limitation for the prosecution of the crimes. The trouble with learned counsel is that they overlook their own judgment in the case. This judgment does not suspend Sanderson until an indictment might be secured, and he tried thereon, but the judgment is one finally disposing of the case, and thereto is added a judgment for costs against Sanderson.

The whole conduct of this case conflicts with Selleck's case, and our learned brothers of the bar will see it when their attention is called to portions of that opinion not appearing in their brief.

Section 960, Revised Statutes 1909, reads: "When the matter charged is not indictable, a trial of the facts alleged shall be had in the court in which the charges are pending, which trial shall be by the court."

We quoted this section in Selleck's case at 252 Mo. l.c. 383, and on page 383 said:

"This statute when added to those already quoted rounds out the statutory scheme. When so rounded out it means (1) that where the information in a disbarment proceeding charges an indictable offense, but does not charge a trial and conviction upon an indictment, then the power of the trial court is limited to a mere suspension of the attorney from practice until the facts can be ascertained in a trial of the facts on an indictment, but (2) if the `matter charged is not indictable, a trial of the facts alleged shall be had in the court in which the charges are pending, which trial shall be by the court.' "The language of Section 960 shows that it was nevercontemplated that the court before which the disbarmentproceedings were pending should ascertain the facts in a casewhere the charges reached the gravity of indictable offenses. Thetrial of such facts was left to the court having charge of thecriminal proceedings, and by Section 959, the record from suchcourt, whether it showed acquittal or conviction, is binding uponthe court heairg the disbarment proceedings."

And further speaking of Section 960, supra, we said:

"Again had the Legislature intended that the court hearing the disbarment proceeding should hear, try and determine the facts, in a case where the charges amounted to indictable offenses, there never would have been the limitations found in Section 960 supra. That section limits the court's right to determine the facts to cases involving charges other than those of indictable offenses. The rule `expressio unius est exclusio alterius' is peculiarly applicable here."

In other words there could be no final judgment, as we have here, until there had been an indictment and a trial thereon, and when there had been such trial the judgment of conviction or of acquittal was the thing which authorized the trial court to proceed beyond a temporary (not a fixed) suspension. The rule in Selleck's case goes to the extent of holding that, information in the disbarment proceedings charged against the attorney indictable offenses, the court hearing the disbarment proceeding was without power to hear and determine the facts, but must await their determination in the court having charge of the criminal charge. So when we read the petition for disbarment in this case, it is clear, as ruled in Selleck's case, that the trial court was without statutory authority to hear and determine even the facts upon which his judgment was based. By the statute (Sec. 960, R.S. 1909) that power was placed in another court, i.e. one having charge of the criminal charges mentioned in the petition of disbarment.

The face of this record shows that under Section 960, supra, the court entering this judgment was without power or jurisdiction to enter it, or to hear and determine the facts upon which it was entered. The Legislature can limit the power and jurisdiction of circuit courts, and it has done so in this class of cases.

It is urged that Sanderson waived this by proceeding with the trial. There can be no waiver where the court is without power to hear and determine the facts.

There is another reason for a reversal of this judgment under our statutes as construed in Selleck's case. There was no legal proof upon which to base this final judgment (for upon it face it is a final judgment, and not a mere interlocutory order of suspension), pending the ascertainment of the facts in a court having criminal jurisdiction of the offenses charged in the petition for disbarment.

Where the petition for disbarment rests upon indictable offenses, the only proof which can justify a permanent disbarment, or a fixed term suspension, is a judgment of guilt from a court which heard the facts of the case upon indictment. Not only so, under the petition in this case the court below was not only precluded from finding the facts, but likewise precluded from entering a final judgment (as was entered here) until there had been an indictment and trial thereon. [R.S. 1909, sec. 959.]

This we ruled in Selleck's case, supra. For these reasons I concur with the opinion of Brother WOODSON. All concur in these views except Woodson, J., who adheres to the principal opinion, written by him.