
    
      In re Proceedings to Disbar E. B. Peyton, an Attorney at Law.
    January Term, 1874.
    1. Chango of Venue: Prejudice of Judge. Where a proceeding is instituted for the purpose of disbarring an attorney at law on the ground that lie fraudulently procured his admission to the bar, the defendant is entitled either to a change of venue or to a trial before a judge pro tern., on making the proper application therefor, and showing that the regular judge is prejudiced against him.
    2. Attorney at Law: Disbarring: Notice of Proceedings. It is error for a court to render a judgment against an attorney at law disbarring him, without such attorney first having notice of the nature of the proceeding against him, and having a full opportunity afforded him to defend.
    [3. -: Proceedings. The proceeding to disbar an attorney is a criminal proceeding; at least, it is a quasi criminal proceeding.]
    *Appeal from Lyon district court.
    At the September term,- 1872, of the Lyon county district court, to-wit, on the twelfth of October, 1872, Hon. John H. Watson, district judge, presiding, the following proceedings were had and entered of record, to-wit:
    “In the Matter of E. B. Peyton, an Attorney at Law.
    
    “The court having received information that E. B. Peyton, one of the practicing attorneys at the bar of this court, did on the second day of March, 1868, on the occasion of an application at that time made in his behalf to be admitted to practice as an attorney in this and all other district and inferior courts in this state, and in support of said application, cause a certain paper to be offered purporting to be a certificate duly executed by the clerk of the circuit court, of Clay count}', Indiana, certifying in effect that, according to the records of said court, the said E. B. Peyton had been duly admitted as an attorney at law to practice in said court, and that on said certificate he was then admitted to practice as an attorney in this and other courts ; and this court being further informed that there is no such record of said E. B. Peyton’s admission to practice as an attorney in any of the proceedings of said Clay county circuit court, as is mentioned in said certificate, and that he was never known or recognized as an attorney by said circuit court or any other court of record in said state, •or any other state, .previous to his admission by this court at the time aforesaid; and the court being further informed that the said paper purporting to be a certificate as aforesaid is a base forgery, in this: that after it had been issued by said clerk the name of the person in whose behalf it had been given, and who was entitled to the same, was erased, and the name of the said E. B. Peyton inserted in place thereof, and that this was done with his (Peyton’s) knowledge and consent, and with the fraudulent intent on his part to deceive the court; and the court having good reason to believe that the information which it has received in the premises is true, — now, to the end that the public good may be conserved, the honor and respectability of the legal profession vindicated, and the dignity of the bench maintained, it is ordered that the matter be thoroughly investigated; and, in furtherance of this object, the court hereby appoints R. M. Buggies, W. S. Carroll, Orrin Miller, Edwin S. Waterbury, and J. Jay Buck, *to draw up a proper charge in the case against the said E. B. Peyton. It is further ordered that the said charge, as soon as drawn, be given to the clerk of this court, who shall immediately place the same on file, and record it as in case of informations, and that he supply the said Peyton with a copy of the same, and further notify him that the case will stand for hearing on the sixth of November, 1872.”
    Afterwards on the nineteenth of October, 1872, full and specific charges were filed in the office of the clerk of said court by said committee. They were entitled “In the Matter of Proceedings against E. B. Peyton for Contempt and Deceit.” So much of said charges as is material here is as follows:
    “ [Title.J The undersigned attorneys appointed by the district court of Lyon county to prefer charges and accusations against E. B. Peyton for deceit and contempt practiced on said court, and, in obedience to the orders of the said court, do make the following accusations: * * * That thereupon, and on said second of March, 1868, and upon the faith and credit of said certificate from the said clerk of Clay county circuit court of Indiana, the said Lyon county district court did, by an order duly entered upon the journal of said court, admit said Peyton to practice law in all district courts and courts inferior thereto in said state of Kansas; that said certificate of said clerk of the circuit court of Clay county, Indiana, so presented by Peyton to said Lyon county district court as aforesaid, was false, fraudulent, and forged, and was not made or given by the clerk of said circuit court of Clay county, Indiana, certifying that said E. B. Peyton was admitted by and in said, court to practice law in said state of Indiana; * * * that said Peyton, when he presented said paper purporting to be the certificate of said clerk, well knew that said certificate was false, fraudulent, and forged, and said Peyton presented the same to said court with the intent to deceive said court, and for the purpose of procuring his, the said Peyton’s admission by said court to practice law in the state of Kansas, whereby the said Peyton became and was guilty of a contempt of said court; * * * that the deceit and contempt by the said Peyton, practiced upon the said Lyon county district court as aforesaid, did not become known to said court until during the present year, to-wit, 1872, and full and convincing proof of the same did not come to the knowledge of said Lyon county district court until in October, 1872.” *The subsequent proceedings in the district court are sufficiently shown by the following journal entries:
    Journal Entry, November 6, 1872.
    “[Tifie.] The said E. B. Peyton now failing to appear, it is ordered that this cause be continued to and set for hearing on Monday the twenty-third of December, 1872, at which time the said Peyton is required to appear and answer the charges of contempt now pending in this court against him; and it is further ordered that the clerk of the court give to the sheriff of Jjyon county a copy of this order, and that the said sheriff forthwith serve the same on E. B. Peyton; and it is further ordered that the said sheriff notify the said Peyton that depositions to be offered in evidence on the trial of this cause will be taken at the office of the clerk of the circuit court in the town of Bowling Green, in the county of Clay, in the state of Indiana, on Monday the twenty-fifth of November, 1872, between the hours of 8 o’clock a. m. and 6 o’clock p. m. of said day, and to be continued from day to day between said hours till all are taken.”
    Then follow journal entries showing the appointment of William A. Randolph, Esq., a member of the bar, “to superintend the trial ’and hearing of this cause, and to examine and direct in the issuing and serving of process herein,” and showing the sheriff’s return of personal service on Peyton, November 8th, of the order of sixth November. Said Randolph was afterwards excused from such service. Peyton appeared by his counsel, and filed the following answer:
    
      "[Title.] Comes now the said E. B. Peyton, the respondent in the above-entitled cause, by John Y. Sanders, P. B. Plumb, John W. Lynn, and Almerin Gillett, his attorneys, and in compliance with the order of the court heretofore made in said. cause requiring said respondent to appear on this twenty-third day of December 1872, and answer to the charge of contempt preferred against him in said 'cause, and for his answer to said charge denies each and every allegation therein contained.”
    
      Journal Entry or December 23, 1872.
    “ [Title.1 And now comes the said E. B. Peyton, by P. B. Plumb, John W. Lynn, J. Y. Sanders, and Almerin Gillett, his attorneys, and presents to the court an alternative motion, asking — First, for a change of venue from this to some other judicial district, on the ground of the bias and prejudice of *the judge of this district ; and, second, in the event that such change of venue be refused, that a pro tempore judge be elected by the members of the bar of this court to try said cause, — which said motion was supported by affidavits; all of which, with said motion, were argued by counsel, considered by the court, and by the court overruled; to which ruling of the court the defendant, by his counsel, excepted.”
    The record then shows that the trial was proceeded with, continuing from day to day until the third of January, 1873. The court made separate findings of fact and conclusions of law. The findings of fact are eleven in number, and sustain the original charge in every respect. The conclusion of law and final decision are as follows:
    “And as a conclusion of law deduced from the foregoing facts, the-court finds that the said E. B. Peyton did, on the second day of March, 1868, by reason of the premises, practice deceit and contempt upon the- district court of Lyon county, the said court being then in open session. It is therefore ordered that the order heretofore made by this court on the second day of March, 1868, admitting said E. B. Peyton to practice law in the district courts, and courts inferior thereto in this state, be, and the same is hereby, revoked, and that the name of the said E. B. Peyton be stricken from the roll of attorneys of this bar; and it is further ordered and adjudged that the said E. B. Peyton pay the costs of this suit. J. H. Watson, Judge.”
    Motions in arrest of judgment and for a new trial were made and. overruled, and Peyton brings the case to this court by appeal.
    
      P. B. Plumb, Almerin Gillett, John W. Lynn, and John V. Sanders, for appellant.
    
      R. M. Ruggles, J. Jay Buck, E. S. Waterbury, W. S. Carroll, and Geo. Stowell, for the committee in support of the charge.
   *Yalentine, J.

The court below rendered a judgment against. the appellant, E. B. Peyton, disbarring him from practicing as an attorney and counselor at law in the district courts of Kansas. From this judgment the appellant now appeals to this court. The charge and findings of the court below, upon which said judgment was rendered, were for deceit and fraud in procuring an admission to practice in said courts. The charge and findings stated, substantially, that on the second of March, 1868, the appellant procured said admission from the district court of Lyon county by means of a false and fraudulent instrument in writing, purporting to be a certificate from the clerk of the circuit court of Clay county, Indiana, and purporting to show that said defendant had previously been admitted to practice law in said circuit court as an attorney and counselor at law. Two principal questions are raised for our determination: First. Had the appellant a right, on account of prejudice on the part of the regular judge of the district court of Lyon county, to have the case tried before some other judge, to-wit, before a judge in some other district, or before a judge pro tem-J Second. Was the proper judgment rendered in this proceeding? Many minor and incidental questions are involved in these two principal questions. Was this proceeding an action, or,, was it only a special proceeding ? Civil Code, § 3. And was it a criminal prosecution, or a civil prosecution? Was it a prosecution to disbar the defendant, or was it merely a prosecution for an alleged contempt ? And if it was a prosecution to disbar the defendant, was it a prosecution under the statutes merely, (Comp. Laws, 1862, c. 15, §§ 6, 10-16; Gen. St. c. 11, §§ 6, 10-16;) or was it a prosecution founded upon an inherent power of the court ? We shall not answer these questions in their order, nor any of them, except so far as it becomes necessary to answer them while expressing our opinions upon the main questions involved in'this case. We suppose that all courts authorized to admit attorneys *may also disbar them upon sufficient cause being shown; that such power is inherent; that it is a necessary incident to the proper administration of justice; that it may be exercised without any special statutory authority, and in all proper cases, unless positively prohibited by statute; and that it may be exercised in any manner that will give the party to be disbarred a fair trial and a full opportunity to be heard. Mr. Tidd says: “When an attorney has been fraudulently admitted, or convicted (after his admission) of felony, or other offense which renders him unfit to be continued an attorney, or has knowingly suffered his name to be made use of by an unqualified person, or acted as agent for such person, or has signed a fictitious name to a demurrer as and for the signature of a barrister, or otherwise grossly misbehaved himself, the court will order him to be struck off the roll.” 1 Tidd, Pr. (3d Amer. Ed.) 88. See, also, to the same effect, Bac. Abr. “Attorney,” H; Com. Dig. “Attorney,” B 15. See, also, State v. Holding, 1 McCord, 379; Smith v. State, 1 Yerg. 228; Rice v. Com., 18 B. Mon. 472; People v. Smith, 3 Caines, 221.

The attorneys’ act of 1859 (Comp. Laws 1862, p. 102, c. 15) was in force on March 2, 1868, when the appellant was admitted to the bar in Lyon county as aforesaid. The attorneys’ act of 1868 (Gen. St. c. 11) took effect October 31, 1868, and still continues in force, and was therefore in force during the entire pendency of this proceeding. But whether this proceeding comes within either of said acts, or neither of them, we do not think that it is in any manner material. There is no statute now in force, and there never has been any statute in force, prohibiting this kind of prooeeeding, and therefore such a proceeding is proper, although there may be no statute specifically authorizing it. The common law authorizes it as a part of the necessary and inherent powers of the court. And it is possible, •also, that the last clause of section 11 of the attorneys’ act of 1859 may also authorize it. But, as we have before said, this is immaterial. The act of the appellant in being admitted, as it is charged he was admitted, was un*doubtedly a contempt of the court, (Hawk. PI. Or. “Attachment;” Com. Dig. “Attachment,” A 2 ;) and every proceeding to punish for contempt-is a criminal proceeding, (authorities last cited, and 4 Bl. Comm. 283, 284; Passmore Williamson’s Case, 26 Pa. St. 9; State v. Matthews, 37 N. H. 450.) But the foregoing does not prove that this is a proceeding merely for contempt, nor does it prove conclusively that this is a criminal proceeding. And although the acts for which an attorney may be disbarred are generally contempts, yet there are many contempts for which an attorney could not be disbarred, and there are some things for which an attorney may be disbarred which are not contempts. If this prosecution had been merely for the contempt of the appellant in being admitted as he was, then we are inclined to agree with counsel for .appellant that no punishment except fine and inprisonment could be inflicted upon the appellant. Gen. St. c. 28, § 2; People v. Turner, 1 Cal. 143; Ex parte Smith, 28 Ind. 47; Ex parte Bradley, 7 Wall. 364. But this we suppose was not intended to be a mere proceeding for contempt.

We think the proceeding to disbar an attorney, like the proceeding for contempt, is a criminal proceeding, or, at least, it is a quasi criminal proceeding. People v. Turner, supra. The proceeding to disbar is often entitled in the name of the state or the people, or the commonwealth. This is directly held to be proper in Kentucky. Turner v. Com., 2 Metc. 619, 631; Rice v. Com., 18 B. Mon. 472. Such a prosecution is for the public. It is always for misconduct on the part of the attorney. It is not for money or other property, and not to recover for any pecuniary loss sustained by the public; and it always involves disgrace to the defendant. It takes from him a right of which he is already in possession. It takes away his business and his means of gaining a livelihood. And this it does, not for the purpose of giving the same to some other person, or to the. state, but simply to deprive the defendant of the same. The whole thing is in the nature of a criminal forfeiture. In the *case of Cummings v. State 4 Wall. 277, it was held that to deprive a clergyman of his right to preach on account of past conduct is punishment, and criminal in its nature, and that a law which in effect prohibits a clergyman from preaching on account of past acts for which no such punishment was inflicted at the time when such acts were committed is an ex post facto law, and is unconstitutional and void. In the case of Ex parte Garland, 4 Wall. 333, it was held that the exclusion of an attorney from the practice of the law in the federal courts, or the exclusion of any person from any of the ordinary avocations of life for past conduct, is punishment, and that an act of congress which in effect attempts to do such a thing is an ex post /ucfo law, and is therefore unconstitutional and void. All courts agree that an attorney at law can be removed only for misconduct, ascertained and declared by the judgment of a court, after a full opportunity to be heard has been afforded to such attorney. Ex parte Garland, supra.

The proceeding, then, for the removal of an attorney and counselor from practice, being in its nature a criminal proceeding, the defendant in such a proceeding has a right to a change of venue when the regular judge of the court wherein such proceeding is pending is in any manner prejudiced in the case. Section 173 of the Criminal Code reads as follows:

“Sec. 173. When any indictment or criminal prosecution shall be pending in any district court, the same shall be removed by the order of such court or judge thereof to the district court of some county in a different district, in either of the following case: First, when the judge of the court in which the cause is pending is near of kin to the defendant, by blood or marriage; second, when the offense charged is alleged to have been committed against the person or property of such judge, or some person near of kin to him; third, where the judge is in anywise interested or prejudiced, or shall have been counsel in the cause.” Gen. St. 847; also Comp. Laws 1862, 258, § 151.

And for the reason that this section recognizes the fact that a judge who is prejudiced in a caséis “disqualified to sit” ^therein, the defendant in such a case has a right to have a judge pro tem. elected to hear and determine the case. Section 4 of the act concerning district .courts reads as follows:

“Sec. 4. A judge pro tem. of the district court may be selected in the following cases: First, when the judge shall be sick or absent at the commencement of the term; second, when the judge shall be sick or absent himself during or at the close of any term before all the cases pending in the court at the commencement of the term shall have been reached for trial; third, when the judge is interested, or has been of counsel in the ease or subject-matter thereof, or is related to either of the parties, or otherwise disqualified to sit.” Gen. St. 304. See, also, Const. Kan. art. 3, § 20.

Possibly a change of venue may be had, or a judge pro tem. elected on account of prejudice of the regular judge even in civil cases. The last section quoted applies to civil cases as well as to criminal cases, and section 56 of the Civil Code, as amended, reads as follows:

“Sec. 56. In all cases in which it shall be made to appear to the court that a fair and impartial trial cannot be had in the county where the suit is pending, or where the judge is interested, or has been of counsel in the case or subject-matter thereof, or is related to either of the parties, or is otherwise disqualified to sit, the court may, on application of either party, change the place of trial to some county where such objection does not exist.” Laws 1870, p. 171, § 2.

What do the words, “or is otherwise disqualified to sit,” mean? It will be admitted that at common law prejudice did not disqualify a- judge; but still some meaning should be given to said words, if possible. In Kentucky, section 28 of article 4 of their constitution of 1850 reads as follows: “The general assembly shall provide by law for holding circuit courts when/rom any cause the judge shall fail to attend, or, if in attendance, cannot properly preside.” The general assembly did provide that “when, from any cause, the judge of the circuit court fails to attend, or, if in attendance, cannot properly preside in a cause or causes pending in such court, the attorneys of the court who are present shall elect one of its members then in attendance to hold the court for the occasion, *who shall accordingly preside.” Rev. St. (vol. 1, Stant. Ed.) 321. Under an old statute of 1815, which seems to have been still in force in 1850, when said constitution of Kentucky was framed, and under the subsequent statutes following, a party had a right to a change of venue on account of prejudice of the judge. Under said constitutional provision and these statutes the supreme court of Kentucky held that a defendant in a case almost exactly parallel with this had a right to be tried by a special judge, and not by the regular circuit judge. Turner v. Com., 2 Metc. (Ky.) 619. Said court held that the words, “any cause,” meant prejudice, as well as other causes. There is no question concerning the constitutionality of our laws regarding a change of venue, when asked for by either party in a civil suit, or when asked for by the defendant in a criminal prosecution; and there is no question concerning the constitutionality of the act authorizing the election of a judge pro tem. The constitution itself expressly provides for such a thing. Const. Kan. art. 3, § 20.

We do not think that the appellant had sufficient notice that this proceeding was instituted for the purpose of disbarring him. The whole proceeding, as it appears from the record brought to this court, would seem to be merely a proceeding for contempt. The judgment of the court below disbarring the appellant is the first thing that shows that there was any intention to disbar the appellant. The appellant was not present in person at the trial. Probably it was not necessary that he should have been, as this proceeding cannot be considered in the light of a felony. Hé was, however, represented by able counsel. But'the record does not show that anything transpired during the trial to give even the appellant’s counsel any knowledge of the real object of this prosecution. It is true that a prosecution of this kind is to some extent a summary prosecution, (Bac. Abr. “Attorney,” H) and therefore that it need not be very formal in any of its particulars; but still the defendant must have sufficient notice of the object of the proceeding, so that he *may have a full opportunity to defend. Ex parte Heyfron, 7 How. (Miss.) 127; Ex parte Bradley, 7 Wall. 364, 372, 373; People v. Turner, 1 Cal. 143, 150; Ex parte Garland, 4 Wall. 333, 378. Such notice was not given the appellant in this case. He had a right to believe that the prosecution was merely for a contempt.

We think the court below erred — First, either in not granting the ■change of venue, or allowing the trial to be had before a judge pro tem.,- second in rendering a judgment against the appellant disbarring him, when no notice had been given to the appellant that such was the nature of the proceeding. The evidence introduced on the hearing of the alternative motion, for a change of venue or for the election of a judge pro tem., was amply sufficient to show that the judge of the court below was prejudiced against the appellant.

The judgment of the court below must be reversed, and cause remanded for further proceedings.

(Ail the justices concurring.)  