PHILLIPS v. BALLINGER

PHILLIPS v. BALLINGER. Statutes; Attorneys; “Disreputable;’? Injunctions; Equity; Pleading. 1. Sec. 5 of the act of Congress of July 4, 1884 (23 Stat. at L. 98, chap. 181), giving the Secretary of the Interior authority to suspend and exclude agents and attorneys from practising before his department, after notice and opportunity for a hearing, is not invalid as not affording an accused agent or attorney due process of law, because it. fails to provide for the administration of oaths to witnesses testifying at the hearing provided for, or for summoning witnesses to appear at such hearing. (Citing Garfield v. United States, 32 App. D. C. 109, and Hitchcock v. Smith, 34 App. D. C. 521.) 2. So much of sec. 5 of the act of Congress of July 4, 1884 (23 Stat. at. L. 98, chap. 181), as provides that the Secretary of the Interior may disbar an agent or attorney practising before his department, who-is shown to be “disreputable,” is not void because of the word “disreputable” not being defined by the common law, and having no common or general signification. (Following Garfield v. United States,, supra.) 3. In a suit in equity to enjoin the Secretary of the Interior from further continuing a proceeding to disbar an attorney practising before his department, it will be presumed that the Secretary will be governed by established rules, and will grant the attorney a fair and impartial hearing. 4. An averment in a bill in equity by an attorney practising before the Interior Department, to enjoin the Secretary of the Interior from further continuing a proceeding to disbar the plaintiff, that, aside from certain disputed evidence, there is nothing before the Secretary upon which he can base a legal and valid order of disbarment, is a statement of a conclusion of law. No. 2259. Submitted February 13, 1911. Decided April 3, 1911. Hearing on an appeal by the plaintiff from a decree of the Supreme Court of the District of Columbia, sitting as a court of equity sustaining a demurrer to and dismissing a bill in equity for an injunction. Affirmed. The Court in the opinion stated the facts as follows: This appeal is from a decree of the supreme court of the-District sustaining the demurrer to and dismissing the appellant’s bill. According to the averments of the bill, complainant, Henry D. Phillips, was a recognized attorney before- the Interior Department, including the Bureau of Pensions, in which Bureau he had an extensive practice. On June 6, 1910., the Commissioner of Pensions notified the complainant in writing to show cause, on or before July 15, 1910, why said Commissioner-should not recommend to the Secretary of the Interior the disbarment of complainant from further practice as an attorney or agent before the Department of the Interior and its Bureaus. Accompanying said notice “were certain documents containing alleged specifications of alleged acts of misconduct on the part of the plaintiff, together with copies of letters alleged to have been written by plaintiffSaid written notice charged complainant with improper practice as such agent or attorney,, “showing that the said Henry D. Phillips is disreputable.” Complainant further alleges that he “is advised and believes,, and therefore avers, that said charge involved an inference on the part of said Commissioner that the plaintiff was guilty of improper practice because of certain acts alleged to have been committed and letters alleged to have been written by the plaintiff, and the further inference by said Commissioner that plaintiff is disreputable in consequence thereof.” Complainant then denies that he is disreputable, or that he has done any act or thing which might reasonably be construed as disreputable, “and. even if it be admitted that he committed all the acts and wrote-all the letters forming the basis of said charges, that it would not show thereby that he was in any wise disreputable.” It is further averred that at an alleged hearing before the Assistant Commissioner of Pensions, “certain documents called depositions, and purporting to be the depositions of witnesses-who had theretofore testified in the State of North Carolina in supposed support of said charges, and which were taken before notaries public of said State, were offered and, over the ■objection and protest of plaintiff, received and read in evidence, although the notaries public before whom said alleged depositions were claimed to have been taken were not authorized by any law to administer oaths to the witnesses called upon to testify. Plaintiff further shows unto the court that over the objection and protest of the plaintiff oaths were administered by a notary public in and for the District of Columbia, to certain witnesses who were then and there produced as witnesses on behalf of the Bureau of Pensions against the plaintiff, although no law exists which authorized a notary public to administer oaths to said witnesses;” that complainant, while protesting that said proceedings were illegal and void, requested said Deputy Commissioner of Pensions to issue a commission to take the depositions of witnesses who would testify in behalf of -complainant, but that said request was refused; that the said Deputy Commissioner was also asked to cause subpoenas to issue to certain witnesses in the District, which request was refused; that thereafter, namely on the 22d of December, 1910, said Deputy Commissioner of Pensions in a written communication to the Secretary of the Interior recommended the disbarment of complainant, and that complainant was notified by ■said Secretary that a hearing would be accorded complainant on the 26th of October, 1910. It is then averred “that, in reaching his conclusion that he should recommend the disbarment of the plaintiff as aforesaid, the said Acting Commissioner of Pensions considered and gave weight to the said alleged depositions taken as aforesaid before .an officer not authorized by law to administer oaths to the witnesses, and to the testimony of said witnesses’ who testified at .said alleged hearing, and to whom oaths were administered by an officer who had as aforesaid no authority of law to administer oaths to them,” and that said alleged evidence would be considered by the Secretary in passing upon the case. Complainant then avers that if the Secretary should approve the recommendation of said Deputy Commissioner of Pensions, the complainant would be summarily disbarred and excluded -from practising before said Department, in which event his only remedy would be to institute mandamus proceedings against the Secretary, to the irreparable injury of compláinant’s business and standing. It is then alleged that sec. 5 of the act of July 4, 1884 (23 Stat. at L. 98, chap. 181), purporting to give the Secretary of the Interior authority to suspend and exclude attorneys from practising before his Department and its Bureaus, is void (1) for uncertainty because of the use of the word “disreputable,” which, it is averred, is not defined by the common law, and has no common or general signification, and (2) because said section fails to provide for the summoning of witnesses. It is further averred that even if said act be valid, the proceedings in this case are void because the alleged charges preferred against the complainant “are based upon matters and things which are not within the purview and scope of said act;” that the action of said Deputy Commissioner of Pensions is void because it is based upon evidence illegally adduced. “And in the absence of said alleged evidence, there is nothing before the defendant as Secretary of the Interior upon which to base a legal and valid order of disbarment against the plaintiff.” Mr. Charles Cowles Tucker, Mr. J. Miller Kenyon, Mr. Henry R. F. Mdcfarland, and Mr. Edward S. Bailey for the appellant. Mr. Oscar Lawler, Assistant Attorney General, Mr. F. W. Clements, and Mr. C. Edward Wright for the appellee. [MAJORITY — Mr. Justice Bobb] Mr. Justice Bobb delivered the opinion of the Court: As noted in Garfield v. United States, 32 App. D. C. 109, 133, prior to the act of July 4, 1884 (23 Stat. at L. 98, chap. 181), the regulation and control of agents and attorneys before the Pension Bureau “seemed to have been governed exclusively by the regulations adopted by the Secretary.” How the act of 1884 came to be passed is explained in the Stevens Case, and, owing to the view we take of that act, it is unnecessary to consider whether it constitutes anything more than a legislative sanction of the practice theretofore existing. Prior to the passage of the act, the Secretary certainly had the power to prescribe rules governing the conduct of agents and attorneys in his Department (sec. 161, Rev. Stat. U. S. Comp. Stat. 1901, p. 80). This would seem to include the power to exclude such agents and attorneys as the Secretary, after notice and hearing, should find no longer entitled to enjoy the privileges theretofore granted. Sec. 5 of said act of 1884 in terms authorizes the Secretary to prescribe rules and regulations governing the recognition of agents, attorneys, or other persons representing claimants before his Department, to require that they show “that they are of good moral character and in good repute, possessed of the necessary qualifications to enable them to render such claimants valuable service, and otherwise competent to advise and assist such claimants in the presentation of their claims,” and further authorizes the Secretary, “after notice and opportunity for a hearing,” to suspend or exclude from further practice before his Department “any such person, agent, or attorney shown to be incompetent, disreputable, or who refuses to comply with the said rules and regulations,” etc. It is insisted that said act is void because it makes no provision in reference to administering oaths to witnesses testifying at the hearings therein mentioned, and, further, because no provision is made for summoning witnesses to appear at said hearings. Both contentions must fail. The right to appear before the Interior Department is not an inherent right, but a privilege granted by law and subject to such limitations and conditions as are necessary for the protection both of the Department and the public, and while it is a valuable privilege, proceedings looking to its curtailment or withdrawal are essentially civil in their nature. It has even been held that a summary proceeding against an attorney to exclude him from the practice of his profession, on account of acts for which he may be indicted and tried, is due process of law. Ex parte Wall, 107 U. S. 266, 27 L. ed. 553, 2 Sup. Ct. Rep. 569. All that is required in the proceeding to which the statute refers is that the person affected should have due notice, full knowledge of the charge, an opportunity to rebut the charge by proof, and an opportunity for a hearing. In Londoner v. Denver, 210 U. S. 373, 52 L. ed. 1103, 28 Sup. Ct. Rep. 708, a tax case, the court said: “Many requirements essential in strictly judicial proceedings may be dispensed with in proceedings of this nature. But even here a hearing in its very essence demands that he who is entitled to it shall have the right to support his allegations by argument, however brief, and, if need be, by proof, however informal.” Under sec. 3929, Rev. Stat., U. S. Comp. Stat. 1901, p. 2686, the Postmaster General “may, upon evidence satisfactory to him,” etc., in effect withdraw the privilege of the use of the mails from any person. It is apparent, we think, that such a privilege is at least as valuable as the privilege of appearing before the Interior Department, and yet no provision whatever is made for summoning witnesses or for administering oaths to those who may voluntarily appear. In Public Clearing House v. Coyne, 194 U. S. 497, 48 L. ed. 1092, 24 Sup. Ct. Rep. 789, the constitutionality of said section was assailed upon the-ground, among others, that it provided for no judicial hearing. The court sustained the law, saying: “It is too late to argue-that due process of law is denied whenever the disposition of property is affected by the order of an-executive department.”' In Hitchcock v. Smith, 34 App. D. C. 521, involving a hearing the object of which was the withdrawal of the privilege-theretofore accorded a publisher of sending his publication-through the mails as second class matter, the court said: “The-next question is whether appellees were accorded a hearing.. In determining this question it must be remembered that no-fixed and arbitrary rule has been laid down, and that hearings; of such a nature are necessarily much more informal than; judicial hearings. Palmer v. McMahon, 133 U. S. 660, 33 L. ed. 772, 10 Sup. Ct. Rep. 324. Due process of law, in a. case like the present, is had when full opportunity is presentedi to introduce all the evidence and arguments which the party interested deems important, and to be confronted with witnesses against him, he having had notice of the question at issue.” The objection that the act is void because of the use of the word “disreputable” is met in the opinion of this court in Garfield v. United States, 32 App. D. C. 109. The court there said that the word was probably used “as the equivalent of unprofessional, and as applying more appropriately to agents and other persons who, as well as attorneys, might be permitted to practise before the Department. The courts were possessed of the inherent power, at the common law, to inquire into the conduct of attorneys admitted to practise before them, and to disbar them when found guilty of unprofessional conduct. The term was well understood by them and by the attorneys in general, and there was no more practical uncertainty in its application than in that of the word “defraud,” which is so commonly used in criminal statutes without definition. Any conduct violative of the ordinary standard of professional obligation and honor was unprofessional and disreputable.” We rule, therefore, that due process of law is satisfied by the provisions of the statute under consideration. The relator, however, insisted that he is entitled to invoke the aid of a court of equity, because, as he contends, illegal evidence was adduced before the Commissioner of Pensions, and, in the absence of such illegal evidence, there is nothing before the Secretary of the Interior “upon which he could base a legal and valid order of disbarment against the plaintiff;” in other words, we are asked to assume in advance that the Secretary of the Interior, upon whom devolves the responsibility of passing upon the question whether complainant shall be suspended or excluded from further practice before his Department, will not be governed by law. This assumption we cannot entertain. On the contrary, we must presume that the Secretary will be governed by established rules, and that he will accord complainant a fair and impartial hearing. Spring Valley Waterworks v. Schottler, 110 U. S. 347, 28 L. ed. 113, 4 Sup. Ct. Rep. 48. Aside from the disputed evidence, complainant’s bill shows that the charges against him were in part based upon letters written by him, the character of which it is not necessary here to consider. Complainant’s averment that, aside from the disputed evidence, there is nothing before the Secretary upon which he may base “a legal and valid order of disbarment,” is a mere conclusion. That is primarily a question for the Secretary’s determination, and is not to be thus summarily disposed of. Decree affirmed, with costs. Affirmed. On application of the appellant an appeal to the Supreme Court of the United States was allowed.