Petitioners Brief — Leimer v. Hulse

16

BRIEF OF PETITIONER CITING CASES BELIEVED TO

BE CONTROLLING.

Jurisdictional Points.

POINT 2.

The interest of a trial judge in pending litigation dis- ©

qualifies him and the matter is coram non judice. ;

State ex rel. v. Smith, 176 Mo. 90, 91.

POINT 6.

A finding without evidence is inconsistent with jus-

tice and an exercise of arbitrary power.

Interstate Commerce Commission V. Louisville

and Nashville Ry. Co., 227 U. S. 88.

POINT 7.

That property rights may not be arbitrarily invaded

under the guise of police power.

Dobbins v. Los Angeles, 195 U. S. 223, 236, 25 S.

Ct. 18.

Holden v. Hardy, 169 U. S. 336, 398.

McLean Vv. Arkansas, 211 U. S. 539, 547.

Lawton v. Steele, 211 U. S. 137.

Meyer v. Nebraska, infra.

POINT 8.

The liberty and property of a citizen must be protected

by rudimentary requirements of fair play.

Morgan v. U. S., 304 U.S. 1, 14, 58 S. Ct. 773.

Ohio Bell Telephone Co. v. Public Utilities Com-

mission, 301 U. S. 292, 300, 57 S. Ct. 724.

Tumey v. Ohio, 273 U. S. 510.

7

POINT 9.

The right to labor at a lawful occupation of one’s own

choosing and the good will derived therefrom constitute

both liberty and property.

Allgeyer v. State of Louisiana, 165 U. S. 578-590-

17S. Ct. 431.

The Slaughter House Cases, 16 Wall. 36, 21 L. Ed.

394.

Ex parte Virginia, 100 U.S. 339.

Meyer v. Nebraska, 262 U. S. 390, 399.

POINT 10.

That no right granted or secured by the Constitution

can be impaired or destroyed by State enactment, what-

ever may be the source from which the power to pass such

enactment may be derived.

Connolly v. Union Sewer Pipe Co., 184 U. S. 540,

598.

The judicial branch of government may not be ele-

vated over the legislative branch and may not be given

powers limited merely by its own discretion.

Cary v. Curtis, 44 U. S. 236, 11 L. Ed. 576.

Points of Law.

POINT 2.

The attempt to try alleged direct contemns alleged

committed in forums other than the trial Court an ex

parte procedure within the Court chambers behind closed

doors, from evidence not of record compiled by agents of

the Court acting as prosecutors at the same time and in-

stant and to render a decree thereon is violative of all

organic and statutory law.

Ex parte Bradley, 7 Wall. (U. S.) 364.

Ex parte Robinson, 19 Wall. (86 U. S.) 505.

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In re Debbs, 158 U. S. 564, 565, 595.

Durham v. United States, 289 Fed. 76.

State ex inf. v. Sheppard, 177 Mo. 205, 237.

State ex rel. Houghey et al. v. Ryan, Judge

Garver et al., 182 Mo. 349, 355.

Ex parte LeMond, 295 Mo. 586, 245 S. W. 1057.

In re Neville et al., 117 Fed. 448, 452.

Rapalje on Contempt, Par. 13, p. 15.

Morgan v. U. S., supra.

POINT 3.

The right to a fair and impartial hearing is an in-

herent right protected by the inhibitions of the Fourteenth

Amendment and that Judges may not extend their activ-

ties to become assistant prosecutors.

Goldstein v. U. S., 63 F. 2d 609-613.

Sunderland v. U. S., 19 F. 2d 203-216.

Tumey Vv. Ohio, 273 U. S. 510-535.

*

* * « * * * oe

Among the outstanding cases in the long line holding

that the right to follow a chosen occupation comprised

both liberty and property and falls within the inhibitions

of the Fourteenth Amendment to the Constitution are,

Ex parte Virginia, 100 U. S. 339, the Slaughterhouse cases,

16 Wall. 36, and Allgeyer v. Louisiana, 165 U. S. 578, 590.

Such authority as this is fundamentally unquestioned.

As to a fair trial this and other Courts have consist-

ently held that this is essentially imperative to the effec-

tuation of justice.

In Tumey v. Ohio, 273 U. S510, 535, this Court held

‘no matter what the evidence was against him he

had the right to an impartial judge.”

The Court further held in this same case that the

necessary factors of a fair trial are an adequate hearing

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and an impartial tribunal free from any interest or prej-

udice.

Such rights cannot be lawfully abrogated by an ap-

pellate Court nor by findings based upon conclusions un-

supported by the rolls and the record.

In the case of Interstate Commerce Commission V.

Louisville and Nashville Ry. Co., 227 U. S. 88, this Court

held that a finding without evidence would be inconsistent

with justice and an exercise of arbitrary power.

This is in the nature of a special decree which de-

prives petitioner of the equal protection of the laws.

In the matter of venue the Missouri Supreme Court

has more than once held that a trial judge cannot pass

upon his own qualifications under an affidavit for a

change of venue upon a fair trial.

Thompson v. Sanders, 334 Mo. 1100-1105, 70 S. W.

2d 1052.

In State ex rel. Scott v. Smith, 176 Mo. 90, 106, it was

held that an affidavit in due form disqualifying the trial

judge was conclusive.

In this later case it was also held that an appellate

Court has no jurisdiction to try a case de novo without

the exhibition of claims and the service of process.

With regard to the exercise of the police power of the

State, petitioner’s contention that the exercise of such is

an attempt to arbitrarily regiment the Bar of Missouri

and the United States, is subject to the inhibitions of or-

ganic and Constitutional law and that to authorize its

exertion there must be a public interest involved.

In the long unbroken line of cases supporting this

contention are Lawton v. Steele, 152 U. S. 133, 136-7, 14

S. Ct. 499, it was held

“in order to justify the state in interposing its au-

thority on behalf of the public, it must appear,

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First, that the interests of the public generally

as distinguished from those of a particular class, re-

quire such interference.

Second, that the means are reasonably necessary

for the accomplishment of the purpose and are not

unreasonably oppressive on individuals.”

Also in Meyer v. Nebraska, 262 U. S. 390, 399, this

Court held:

“The exercise of police power can be justified

only when it adds in a substantial way to the se-

curity of fundamental rights.”’

In McLean v. Arkansas, 211 U.S. 539, 1. c. 547, it was held:

“Tt is also true that the police power of the State

is not unlimited, and subjected to judicial review and

when exerted in an arbitrary and oppressive manner

such laws may be annulled as violative of the rights

protected by the Constitution.”

All these and others support the contention that such

police power cannot be exerted on behalf or in the inter-

est of a class or of a few lawyers.

In Connolly v. Union Sewer Pipe Co., 184 U. S. 540,

1. c. 548, this Court held that no right granted or secured

by the Constitution can be destroyed or impaired by State

enactment, whatever may be the source from which the

power to pass such enactment may be derived.

In opposition to the proposition of trying alleged di-

rect contemns de novo, upon hearsay extrinsic evidence

dehors the record, by indirect means under the guise of a

disbarment procedure, while in all probability no Court

has ever gone to such extremes as in the present case

there is ample authority in support of petitioner’s conten-

tions. Among the outstanding cases are, Ex parte Brad-

ley, 7 Wall. 364; Ex parte Robinson, 19 Wall. 505; In re

21

Debbs, 158 U. S. 564-5, 595; State ex inf. v. Sheppard,

177 Mo. 205, 237; State ex rel. Houghey et al. v. Ryan,

Judge Garver et al., 182 Mo. 349, 355.

The gist of authority is, that direct contemns are

triable in a summary manner, at the time before the

Court having jurisdiction of the parties and the subject

matter.

Rapalje who is an unquestioned authority upon con-

tempt clarifies the matter, if there was ever any doubt,

in his work on Contempt, page 15, paragraph 13.

The rule has been established as far back as Black-

stone, who in his commentaries calls attention to the fun-

damental principles then in existence regulating the sub-

ject.

To deviate from the established law and to legislate

special laws upon the subject by judicial edict is to over-

ride organic law arbitrarily, to cause consternation and

impel fear and uncertainty in the minds of the Bar, both

State and Federal, to deny due process of law and the

equal protection of the law and to invade the inhibitions

of the Fourteenth Amendment and the innate rights of

petitioner.

While sometimes Courts have attempted to legislate

themselves into a position by judicial edict, to justify the

arbitrary abuse of power in disbarment procedure, never-

theless the fundamental law remains unchanged.

The Courts are scarcely in a position to legislate or

delegate themselves unauthorized powers never given

them originally, and then to pass upon the facts and the

law as to their own jurisdiction.

In Pleasants v. United States, the Court held, 305 U. S.

582, that a Court may not legislate by construction.

Such a question involves a delicate situation and eradi-

cates the line of demarcation between justice and auto-

cratic dictatorship.

a2

The methods used in the procurement of the judg-

ment and decree inaugurates special laws, overrides

existing organic law and invades individual rights.

Here is an instance where he agents of the Court

solicit claims against petitioner and then act as prosecu-

tors in the cause, while theif principal sits in judgment

upon the facts and the law and proceeds to pass upon ex-

trinsic evidence dehors the record at an ex parte pro-.

cedure.

It is difficult to find a situation directly in point and

petitoner believes that he is the first to have the courage

to assert the rights of the Bar in opposition to the abuse

of arbitrary power on the part of a Court, with the re-

sult that he has been subjected to public abuse and re-

prisals by the political appointees of the Court.

It is manifest upon the records that petitioner was

tried, if at all, upon a special law inaugurated to fit the

occasion, before a tribunal acting as prosecutor and judge

concurrently, upon extrinsic evidence dehors the record

and penalized although no violation of the laws was al-

leged or proven ner were his client’s rights or property

invaded.

The judgment was for the benefit of a few lawyers

wherein no public interest was involved. It was arbitrary

and despotic.

Petitioner’s pleadings and defense was arbitrarily

stricken from the files and the appellate Court undertook

to exercise original jurisdiction, and to suppress the record

which prevented a proper review before the Courts of the

United States, in a manner not provided by law and in

conflict with the innate rights of petitioner and Consti-

tutional inhibitions protecting the same.

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ARGUMENT.

This is a momentous decision affecting not only the

rights, liberty, property and franchises of petitioner but

stands out as an implied threat, which impels fear and

uncertainty into the minds of the Bar of Missouri and

the United States and imperils the vested rights of all

litigants dependent upon the Bar for representation before

the Courts of the land.

It subjects any lawyer who loses a suit to the harass-

ment of a political inquisitional committee composed of

his competitors, without the benefit of any statute of limi-

tation or any adequate means to protect him from the whims

and caprice of those dominated by outside influences or

motivated by ulterior purposes.

Among other errors the appellate Court has attempted

to legislate itself into a position whereby it might exercise

original jurisdiction without the exhibition of claims and

the service of process, all of which is in excess of its

authorized powers and Constitutional authority.

The creation of a commission composed of political

appointees of the Court comprising competitors of peti-

tioner, acting in a dual capacity as officers of the Court

and prosecutors of the cause concurrently, the alleged trial

before an interested judge and a material witness, the fur-

ther trial de novo by the appellate Court in an ex parte

proceeding, upon extrinsic evidence dehors the record com-

piled by its own agents, the findings and decree unsup-

ported by the rolls and the record proper, all have com-

bined to deprive petitioner of his property, liberty, fran-

chises and good will without due process of law.

Undoubtedly the Missouri Court exceeded its juris-

diction in rendering such a decision wherein no violation

24

of the law was charged or proven against petitioner.

This political bureaucratic superstructure so organized

has superseded the Courts, both State and Federal and

destroyed the very purpose for which the Courts were

organized.

This Honorable Court should take judicial notice of

the inefficient, unbusinesslike and impracticable method

of delegating the control of the vast funds taxed against

and collected from the Bar of Missouri and the United

States, wherein disbursements aggregating one hundred

fifty thousand dollars have been effected in the dis-

barment of some twelve or fifteen lawyers and wherein

no prosecuting lawyer has received an authorized fee for

his services.

The tremendous power resultant from the control of

this enormous fund stands out as an obstacle in the path

of justice and has impaired the vested rights not only of

petitioner but of other members of the Bar of the State of

Missouri and the United States and to the extent that a

fair trial and hearing are impossible in the State of Mis-

souri.

The real purpose for the exercise of the police power

of the State of Missouri, namely the protection of the

rights of the public, has been lost sight of in the contro-

versy among lawyers.

Petitioner contends that the wave of regimentation

which is sweeping over the land is climaxed in this de-

cision involving the freedom of the Courts, the freedom

of speech and the right to follow a lawful occupation free

from harassment, intimidation, domination and oppres-

sion by a clique of practicing lawyers. _

The Missouri Supreme Court committed further error

and exceeded its jurisdiction in rendering a decision, the

findings of which are either unsupported by the rolls

and the record or impeached thereby.

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The decree and findings comprise a special judgment

which is for the benefit of a few lawyers and by its ap-

parent partiality and prejudice has not only deprived peti-

tioner of a fair trial and due process of law but has also de-

prived him of the equal protection of the laws in violation

of the inhibitions of the Fourteenth Amendment to the

Constitution.

In finality the rights, liberty and property of peti-

tioner’s clients whom he sought to protect from the dep-

redations of a few lawyers have become submerged and

ignored by a commission not amenable to any authority,

which supersedes the Courts of Missouri and the United

States and in the further attempt to uphold the dignity of

the inferior Courts by indirect means, in a manner exceed-

ing the jurisdiction of the appellate Court, when such

Courts have inherent power to protect themselves.

The decision and the manner of its procurement are

apparently without parallel or precedent in the judicial

history of the land.

There was nothing fair about the whole procedure

which amounted to the confiscation of the property, rights

and franchises of petitioner without due process of law

and deprived petitioner of the equal protection of the laws.

The reasons why this Court should exercise its juris-

diction are patent upon the face of the record and too

obvious to be denied.

Respectfully submitted,

WALTER A. LEIMER,

Petitioner.