The opinion
By GEIGER, J.
I concur in the judgment of my associates if this Court has jurisdiction to consider the matter upon appeal from the judgment of the Court below reinstating the attorney.
I have no doubt that Mr. Rothenberg had the right to appeal from the order of the Court by which he was disbarred, but it does not follow that the action of the Court reinstating him can be reviewed on notice of appeal by the Dayton Bar Association.
I shall be as brief as possible in presenting my views, in the main simply citing cases and statutes rather than discussing them, emphasizing by proper emphasis matters which I deem of importance.
Both the suspension and reinstatement of attorneys are provided for in §§1707, 1708, 1709 and 1710 GC.
Sec. 1707 provides that courts enumerated may suspend or remove an attorney for misconduct in office involving moral turpitude, etc., and such suspension or removal shall operate as a suspension or removal in all courts of the State.
Sec. 1708 GC provides that before an attorney is suspended or removed, Written charges must be filed against him stating distinctly the grounds of complaint, and he shall be allowed time to present his testimony in defense, and. shall be heard. Sec. 1709 GC provides that in case of suspension or removal by the Common Pleas Court, an appeal on questions of law may be had to the Court of Appeals and the sentence of either the Common Pleas Court or the Court of Appeals may be reviewed on appeal on questions of law in the Supreme Court. If such suspended or removed attorney at law shall desire ■ a. modification of the decree of suspension or removal, he shall file a written motion therefor in the court which entered, such decree. It will be observed that-this section specifically provides that in case of suspension, an appeal on ques *376 tions of law may be had to the Court of Appeals and the sentence of either the Common Pleas Court or the Court of Appeals may be reviewed in the Supreme Court. This right to an appeal and review is granted only when there has been a suspension or removal. If the attorney desires a modification of the decree he shall file a motion in the court which entered the decree, but the statute is silent as to an appeal from the action of the court upon the attorney’s motion for modification. “Ex-pressio unius est exclusio alterius.” For reasons which are quite apparent and need not be discussed at length, where the attorney is disbarred he shall have a right of appeal, but where he is reinstated the action of the Court is final.
Sec. 1707 grants the power to the several courts to punish the attorney and to make their order effective in all the courts of the state. It further provides that judges of such courts are required to cause proceedings to be instituted when it comes to the knowledge of any judge or when brought to his knowledge by the Bar Association of the county, that the attorney may be guilty. Sec. 1710 provides for compensation of the persons appointed to prosecute the charges or “to resist the modification of any decrees.”
The record in this case discloses that the action which is now before us for review was begun against the attorney on August 20, 1929, ten years ago, by the filing of charges. Such charges disclose the authority for. their filing, in the following language:
“This court having heretofore appointed Carroll Sprigg and Sidney G. Kusworm; to prepare and file written charges against one Alfred W. Rothenberg, an attorney at law, said appointees do hereby in pursuance and by virtue of said order submit, and file against said Alfred W. Rothenberg the following charges and specifications.”
The record does not disclose any action of the Court appointing these two gentlemen to prepare charges, but the entry of January 14, 1930, recites,
“The Court fixes the compensation of the Committee heretofore appointed, * s' * under the order and appointment of this court heretofore made and entered, * *
On February 8, 1930, the final entry disbarring the attorney was filed, reciting that the cause came on to be heard upon the charges filed against Rothenberg for, alleged misconduct. Various motions were later filed by the attorney and overruled, and it was ordered that he be disbarred. The bill of exceptions was filed and allowed and the case was presented on appeal by the disbarred attorney to the Court of Appeals where the judgment of the Court of Common' Pleas was affirmed.
On June 6, 1934, the attorney made a motion to set aside the decree and on August 16, 1934, it was ordered that Louis T. Schulman and Wayne F. Lee be and they are hereby appointed as counsel to represent this Court and the Dayton Bar Association. On June 24, 1935, an entry allowed attorneys’ fees to Lee and Schulman, “heretofore appointed in the within matter as prosecutors.” On June 17, 1936, another motion was filed by the attorney to modify the former order of the court, and it was then ordered that James D. Herr-man and Louis R. Mahrt be appointed “as counsel to represent this court and the Dayton Bar Association in these proceedings”. Thereafter fees were allowed to the attorneys appointed “to represent this Court and the Dayton Bar Association”. On August 21, 1936, the application for reinstatement was denied.
On March 23, 1939, the defendant filed a third motion for modification of the decree and for reinstatement and. on June 3, 1939, James D. Herrman and Louis R. Mahrt were appointed as counsel “to represent this court and the Dayton Bar Association” in these proceedings and on June 29, 1939, fees were allowed to these attorneys “heretofore appointed by this Court to represent the local Bar Association”.
On June 29, 1939, the case came on to be heard upon the motion of the disbarred attorney for modification and for reinstatement and the Court then *377 ordered that Rothenberg be reinstated as an attorney in all the courts of the state, to which finding the local Bar Association excepts.
On July 19, 1939, notice of appeal was filed by James D. Herrman and Louis R. Mahrt, for the Dayton Bar Association as follows:
“The Dayton Bar Association, an interested party herein, hereby gives notice of appeal to the Court of Appeals a judgment rendered by the Court Common Pleas in the above entitled icause on the 29th of June, 1939. Said appeal is on questions of law.
(Signed) James D. Herrman, Louis R. Mahrt,
Attorneys for the • Dayton Bar Association.”
Thereupon the appeal was docketed in this court.
Ten years elapsed between the filing of the charges and the final reinstatement of the attorney, during which time there was one appeal to the Court of Appeals from the order disbarring him, and three motions for reinstatement, the last of which was successful.
The judicial literature on disbarment proceedings in Ohio center largely, although not exclusively, about the disbarment of Charles A. Thacher, first by the action of the Supreme Court and at a subsequent date by the action of the United States District Court. These cases are all interesting and for the convenience of any who wish to further pursue this matter, are cited as follows:
In re Charles A. Thatcher, 80 Oh St 492.
In the Matter of the Disbarment of Charles A. Thatcher, 83 Oh St 246.
In re Thatcher, 190 Fed. Rep. 969.
State ex Thachter v Brought, 15 O. C. C. Rep. (N.S.) 97.
In re Charles A. Thatcher, 12 O. N. P. N. S. 273.
In the Matter of Charles A. Thatcher (Dissenting Opinion) 12 N. P. N. S., 497.
Other disbarment proceedings which are interesting, but throw no light upon the question before us are:
In the Matter of John A. King, 54 Oh St 415.
In re Hawk, 107 Oh St 341, which relates to appellate jurisdiction, in which Judge Wanamaker deals at length with, and denies the right of an attorney disbarred to appeal on what would now be “questions of law and fact” from a disbarment action. It was there held that,
“Chancery cases do not now and never have comprehended proceedings in disbarment or suspension of attorneys at law.”
The case is interesting, the opinion being written by Judge Wanamaxer m his usual positive style.
State ex Hawk v Le Blond. 108 Oh St 126, throws no light upon the question under discussion.
Schwartz v State of Ohio, 18 Oh Ap 373; 22 O. L. R. 152, was decided by the Court of Appeals for Franklin County, the Judges of the 9th Appellate District sitting in place of Judges of the 2nd District. It is there held that in Ohio a disbarment proceeding is purely statutory., and is neither an ordinary civil action nor a criminal prosecution, and is distinguishable from both with respect to the object sought and the procedure governing civil and criminal actions, and if the Prosecuting Attorney is not appointed by the Court as one of the committee to prosecute charges he is not authorized to prosecute the same, and his waiver in writing of the issuance or service of summons in error will not give the Court of Appeals jurisdiction. This was an action in which the disbarred attorney sought a review on petition in error, but was denied the same for the reason that proper service was not made within time.
In the matter of Edward P. Strong, 27 O. C. A. Rep. 257 (Cuyahoga County) seems out of harmony with the other cases, or at least with the present statute, in that it holds that the penalty of disbarment from practice must be limbed in its application to the Court in which it is pronounced.
*378 I have examined all these cases and I find that in none of them has there been an appeal from the order of the court reinstating the removed attorney, by any individual or association, resisting the modification of the decree. The nearest to such a proceeding of which I have knowledge, was the recent cross appeal of the Dayton Bar Association to the Supreme Court, from an order of this court — In Re Drewey H. Wysong, — recently decided. In that case the Supreme Court overruled motion to certify, but did not consider this point.
Sec. 1709 GC not providing for a review on appeal from the order of the court modifying the decree of suspension, we examine the general statutes relating to procedure on appeal.
Sec. 11582 GC provides “A judgment is the final determination of the rights of the parties in action”.
Sec. 12223-2 defines a final order as one. “affecting a substantial right in an action, when in effect it determines the action and prevents a judgment.”
It is important that we give consideration to the definition of a final order as found in §12223-2. It is an order affecting a substantial right in an action.
Armstrong, Receiver v Brewing Co., 53 Oh St 467, holds:
“(1) The term ‘substantial right’ as used in §6707 R. S., involves the idea of a legal right.
(2) Such right is one which is enforced and protected by law.” See p. 475.
See North v Smith, 73 Oh St 247.
I have been at some length in discussing this matter, because I deem it of importance. I arrive at the conclusion, considering the provisions of §§1709 and 1710 GC and also the general procedure on appeal, that the Dayton Bar Association has no substantial right in the order reinstating the attorney.
“The right of appeal is a statutory right and by legislation this right may be given or denied.”
State ex rel v Beall, 136 Oh St 212-217, Oh Bar Janu. 15, 1940.
Commission v Monroe, 111 Oh St 812.
While §1709 GC, does not expressly deny an appeal from an order reinstating the attorney, it does at least withhold such right, by silence, in the same section which gives the right of appeal from the order disbarring the attorney.
The machinery provided does not contemplate that there shall be an appeal by any one from an order reinstating a disbarred attorney, and even if it did there is no showing of a “substantial right” in the Dayton Bar Association. The only reference to a Bar Association as an interested party is found in the provision of §1707, that Judges are required to cause proceedings to be instituted “when brought to his knowledge by the Bar Association of the County.”
The several committees were appointed to represent “this Court and the Dayton Bar Association”. It would certainly be unusual to permit the committees, appointed to represent the Court, to file an appeal from the order of the Court which it was appointed to represent, seeking its reversal.