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court and jury. This they are not permitted to do.

The return disclosed no defense to the application for the writ, and the judgment of the court below is therefore affirmed.



On an appeal in disbarment proceedings the judgment of suspension and costs was modified by relieving defendant from costs. Held, that the relief accorded defendant was of such a substantial character as to entitle him to recover costs on appeal. 7. ATTORNEY AND CLIENT-DISBARMENT PROCEEDINGS--COSTS ON APPEAL.

Costs on appeal in disbarment proceedings allowed defendant must be taxed against the state and not against the relators.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 13, Costs, § 379.]

Appeal from Superior Court, Chelan County Miles Poindexter, Judge.

Proceeding by the state, on relation of John G. Dill and others, against C. Victor Martin, for disbarment. From a judgment of disbarment for three years, defendant appeals. Modified and affirmed.

John E. Humphries, George B. Cole, O. H. Neal and M. J. Cochran, for appellant. William Grimshaw, A. N. Corbin, and Frank Reeves, for respondent.

(45 Wash. 76)

STATE ex rel. DILL et al. v. MARTIN. (Supreme Court of Washington. Dec. 18, 1906.) 1. ATTORNEY AND CLIENT-DISBARMENT PROCEEDINGS-WHO MAY INSTITUTE.

A disbarment proceeding under Ballinger's Ann. Codes & St. § 4776, requiring such proceedings to be instituted on the court's own motion, or on information of another, may be instituted on motion of members of a county bar association.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 5, Attorney and Client, 8 67.] 2. SAME-DEMURRER TO SPECIFICATIONS.

In a disbarment proceeding where the overruling of a demurrer to the specifications is attacked because certain of the specifications amount to barratry as defined by an unconstitutional statute, the action of the court is justified where there are other specifications not relating to that statute under which evidence was introduced and on which findings were made determinative of the appeal. 3. SAME-GROUNDS FOR REMOVAL OR SUSPENSJON.

Ballinger's Ann. Codes & St. $ 477.1. subd. 2, provides as ground for removal or suspension of an attorney "any violation of the oath taken by him, or of his duties as such attorney and counselor." Held, that this includes all acts of the attorney when acting as such which involve the honesty and reliability of his conduct toward clients and others. 4. SAME-FINDINGS-SUFFICIENCY TO SUPPORT JUDGMENT.

The findings in a disbarment proceeding were that defendant falsely represented to a party that her attorney desired him to assist in the case; that her attorney was a drinking man and was grossly neglecting her case; that if he was not assisted it would probably be three years before the case was settled; that if defendant was employed the case would be settled in about six weeks, well knowing that a decision had been rendered in the case; that, while defendant was judge of the superior court in which such case was pending, he espoused the cause of the said party and attempted to borrow $5,000 from her out of the prospective proceeds of the case; that in another case defendant received fees from both parties; and that in another case defendant, after helping to perfect a settlement, went into court and failed to inform the court that such settlement had taken place; that in this case he was re tained by plaintiff at the suggestion of defendant in the suit to bring a divorce suit, and that, on the day the complaint was filed in the divorce suit, defendant in such suit deposited with defendant money in payment of defendant's fees and costs of suits. Aeld, that the findings were sufficient to sustain a judgment of suspension for a term of three years. 5. SAME-COSTS IN TRIAL COURT-AGAINST WHOM TAXABLE.

Costs in the trial court in disbarment proceedings are not taxable against either party.

(Ed. Note.-For cases in point, see Cent. Dig. VOL 5, Attorney and Client, $ 76.]

HADLEY, J. This is a proceeding for the disbarment of C. Victor Martin, who has been regularly admitted as an attorney and counselor at law, and authorized to practice law before the courts of this state.

The proceeding was instituted on the motion of members of the Bar Association of Chelan county, as relators or informers. Specific charges of unprofessional conduct were made and a hearing was had thereon in the superior court of Chelan county, the Honorable Miles Poindexter, a visiting judge of Spokane county, sitting at the hearing. The hearing

. resulted in a judgment of disbarment for the term of three years, and this appeal is from the judgment.

Appellant's first assignment of error is that the court overruled the demurrer to the speci. fications contained in the motion for disbarinent. It is argued that the motion is insufficient to state a cause of action, or to give the court jurisdiction, for the reason that the relators have no interest which enables them to prosecute an action of this kind. It is insisted that they cannot maintain this proceeding within the rule of In re Ault's Disbarment, 15 Wash. 417, 46 Pac. 644. The real question decided in that case was that the petitioner for the disbarment had no such interest in the subject-matter of the proceeding as made it an aggrieved party and such as entitled it to prosecute an appeal from a judgment refusing disbarment. It was also stated that, if the judgment had been against the attorney, he could have appealed, for the reason that he would have been an aggrieved party in interest, inasmuch as the judgment de prived him of the right to practice his profession. It was said in the opinion in that case: "There can be but two parties in interest in a case of this kind outside of the respondent, namely, the court and the pub lic. The respondent is an officer of the court

and the law provides a method by which the , such appointment necessary to give the court court can determine the fitness or unfitness jurisdiction. The court might summon the of an attorney for that position, and no doubt appellant to a hearing upon any information the interests of the public can be protected it had that it deemed worthy of credit, 'whethby an action authorized by some one who rep- er it came from lawyers or laymen." The resents the public, but the appellant in this above-stated rule is both reasonable and case neither represents the court nor the wholesome, and is undoubtedly comprehended public, and it can be of no interest to it who | by our own statute. It was not even held in the attorneys of the court of the state of the case of In re Ault's Disbarment (Wash.) Washington are.” It was recognized by the 46 Pac. 644, that the petitioner there could above that a disbarment proceeding may be not have instituted the inquiry by bringing instituted by some one who represents the the matter before the court, but only that it public or the court. The petitioner in that was not an aggrieved party and could not case was a corporation, and, as was said, it appeal. No such question is now here. neither represented the public nor the court. It is further contended that it was error The relators here are not only individual to overrule the demurrer, for the following members of the public, but are also attor- reasons: It is said it was treated as a deneys and officers of the court, and in a very murrer to the separate specifications of chartrue sense may be said to represent the court ges; that the latter were treated as separate in so important a matter as that of bringing causes of action; and that certain specificabefore it the question of misconduct of one of tions amounted to charges of barratry within its own officers. The statute, section 4776, the statute. Session Laws of 1903, page 68, c. Ballinger's Ann. Codes & St., simply requires 56. It is urged that said statute is unconthat such proceedings shall be instituted of the stitutional, and that the demurrer should Court's own motion or upon the information have been sustained. In view of the whole of another. It does not state that such other case it seems to be unnecessary to discuss person shall necessarily have a financial and pass upon the constitutionality of the interest in the matter, or an interest of such barratry statute, a subject much discussed in a nature as characterizes one as a party in the briefs. There are a number of specificainterest in ordinary litigation, and we think tions which in no sense relate to the barrait manifest that it was intended that a mat- try statute, and were, therefore,' not chalter of this kind can be brought before the lenged by the demurrer upon this ground. court upon the information of any individual, Evidence was introduced under these, and and particularly of one who sustains such an findings were made thereon. These, we important relation to the court as that of an think, are themselves determinative of the apattorney and officer thereof. It is a common peal, and it is therefore immaterial what rule for such proceedings to be instituted as view the trial court may have entertained as provided by our statute, namely, of the to the constitutionality of the barratry statcourt's own motion, or upon the information ute. We quote below from findings made by of others. 4 Cyc. 913. Cases there cited the court under specifications bearing the show that the proceedings are frequently in- same numbers as the respective findings: stituted by bar associations and attorneys. "Findings of fact as to specification 8. In the case of Fairfield County Bar ex rel. That in making the solicitations referred to 1. Taylor (Conn.) 22 Atl. 441, 13 L. R. A. in findings of facts as to specifications '6' and 767, the court said: "At the commencement '7' the said defendant, C. Victor Martin, of the hearing the committee who had made falsely and fraudulently represented to said the charges proposed to offer evidence of Lucy F. Richardson that her attorney, W. J. their appointment as a committee of the bar, Canton, who was then representing her in and for that purpose had the records of the said action, desired the said C. Victor Marbar in court, and so stated. The court rul- tin to assist the said Canton, and had reed that such evidence was not required, but quested him to assist in defending the aforethat the court would recognize the persons said action, the said Martin then and there named, they being known to the court as well knowing that the said Canton had not members of the bar, as proper persons to made such a request, and did not desire him prefer the charges, and to present the mat- to assist in defending said action, such repter therein contained to the court. This resentations being made with the intent of ruling was objected to, and is the first rea- inducing the said Lucy F. Richardson to emson of appeal. There is no force to the ob- ploy him, the said Martin, to assist in dejection. While it would have been well en- fending for her in said action. ough, perhaps, to have received that record, "Findings of fact as to specification 9. it would have been wholly without signifi- Finds that on or about the 1st day of Novemcance. It was the duty of the attorneys, if ber, 1904, at Wilson Creek, Douglas County, they knew of unprofessional conduct by the Wash., the said C. Victor Martin, then and appellant or any other attorney, to bring it there being a duly admitted and practicing to the attention of the court. An appoint- attorney, did personally solicit employment ment by the bar to do that which it was their of one Lucy F. Richardson, to defend for her duty to do without any appointment could in the case of Richardson v. Richardson, heregive them no added authority. Nor was any inbefore referred to, and, as an inducement to said Lucy F. Richardson to employ him in ington, in a case entitled Marrs v. Marrs, , said action, did represent to said Lucy F. now pending in the superior court of the Richardson that W. J. Canton, her attorney state of Washington, in and for Chelan counin said action, was grossly neglecting, and ty, previous to the trial of said case in court, had neglected, his duty; that he was a negotiated or assisted in negotiating and in drinking man; and that, if he was allowed perfecting a settlement of property rights beto continue to handle said case as her said tween the plaintiff and the defendant; that attorney without the assistance of said C. he went into court with his pleadings and Victor Martin, it would probably be three failed to allege or inform the court then tryyears before said case would be settled up, ing the case that any such settlement had but, if said Lucy F. Richardson would em- taken place; that the fact that such settleploy him, the said Martin, he woull be able inent had taken place was discovered by to get the suit settled up about December the court through means other than those 15, 1.904, said representatio being then furnished by the defendant in this proceedand there made with the intent of inducing ing; that the plaintiff and defendant in that the said Lucy F. Richardson to employ him, case were living together under the same roof the said Martin, in said (ouse, he, the said up to the time of the trial of said case; that Martin, then and there well knowing that the the defendant Marrs sent the plaintiff Marrs said representations were untrue, the facts to the said Martin to retain him as her atbeing that the said Martin had been informeil torney, and that she did, at the suggestion of prior to said November 1, 1.904, that the de- hier husband, retain him, the said Martin, as

ision had been rendered and was then be- her attorney to bring said divorce suit for ing written by one of the judges of the Su- her; that on the same day the complaint preme Court, and that said opinion would in said action was verified, the defendant in probably be handed down about December 15. said suit deposited with said Martin the 1904, all of which said Martin fraudulently sum of $110.80, in payment of the settlement concealed from said Lucy F. Richardson.” with the plaintiff, Mrs. Marrs, the attorney

“Findings of fact as to specification 11. fee of said Martin therein and the costs of The court finds that he, the said C. Victor said suit." Viartin, espoused the cause of said Lucy F. The above findings we think are sustained Richarison in the case of Richardson v. by the evidence. It is true the evidence is Richardson, heretofore referred to, as her not without conflict, but we should not feel counselor and adviser therein, and assumed justified, in view of all the evidence before the relation of counselor in the case for Lucy us, in disturbing the findings. It will be F. Richardson, while he was judge of the seen that the quoted findings involve the apsuperior court in which the case was then pellant's conduct as an attorney, without pending: that the defendant, while acting as regard to any provisions of the barratry such judge of the superior (ourt, while the statute. Where, in some instances, the facts case of Richardson V. Richardson was still were connected with the solicitation of undisposed of, while still pending before him, business, the prevention of which seems to :nd while the property rights of the parties have been the purpose of the statute, still, were still unsettled by him in said superior there was other conduct connected therewith court, the property not having been divided which was inexcusable from the standpoint between plaintiff and defendant, and no of an attorney. Our statute (subd. 2, § specified amount having been allowed to said 4772), Ballinger's Ann. Codes & St.) is comLucy F. Richardson, attempted to borrow prehensive in what shall be ground for re$5,000 from said Lucy F. Richardson out of moval or suspension of an attorney in the the prospective proceeds of that case, out of following words: “And any violation of the the prospective award which he as judge of oath taken by him, or of his duties as such said court would make to lier in that case." attorney and counselor.” The above compre

**Findings of fact as to specification 13. hends all acts of the attorney, when acting Finds that C. Victor Martin, then and there as such, which involve the honesty and rebeing a duly admitted and practicing at- liability of his conduct toward clients and torney at law in the state of Washington, in others. Within any proper measure of an a civil action pending in the superior court attorney's character and duties, appellant's of the state of Washington, in the county of conduct must be held to have been inexChelan, entitled Mottler et al. v. Cooke et al., cusable, as set forth in the above findings. did in said case appear for and represent the All the acts specified in the findings above plaintiff and certain of the defendants there- relate to appellant's conduct when assuming in, and did receive fees of the plaintiff and or seeking to act as an attorney, except those said defendants, the interests of the said set forth in No. 11. Those occurred while plaintiffs and the defendants represented by he was judge of the superior court. It seems the said Martin then and there being adverse to have been conceded that appellant's acts and conflicting as shown by the records in- as judge could not be examined in this protroduced in evidence in this case."

ceeding, but the acts specified in the said "Findings of fact as to specification 20. finding not only reached to appellant's conFinds that C. Victor Martin a duly admitted duct as a judge, but they also involved him and practicing attorney in the state of Wash- as a man. Such a conception of the moral

responsibilities and proprieties, and such a manifestation attending the conduct of a lawyer when acting as judge, cannot well be divorced from the man himself when his character and acts as a lawyer are under investigation. We think the findings we have here considered are sufficient to sustain the judgment of suspension.

There are a number of other findings relating to the solicitation of business on the part of appellant which may or may not involve the barratry statute directly. We have eliminated them from this discussion for the reason that the findings quoted are sufficient to dispose of the appeal, and, as they do not necessarily involve the barratry statute it is unnecessary to examine the constitutionality of that law. The determination of that question is of such importance that it should not be discussed and passed upon except in a case where it becomes necessary to do so in order to determine actual rights.

Appellant contends that the court erred in taxing the costs against him. We find no express legislation in this state authorizing the taxation of costs against either party in disbarment proceedings. "In the absence of express legislation, no costs or disbursements can be recovered by either party, except where the court finds that such proceedings have been instituted in bad faith, when it may order costs against the party who instituted them.” 4 Cyc. 917. In support of the above text the following cases are cited as supporting the taxation of costs by reason of statutory authority, viz. : In re Kirby, 10 S. D. 416, 73 N. W. 908. and In re Wakefield and Wise, 11 Hawaii, 188. Respondents cite the additional case of Ex parte Ditchburn (Or.) 52 Pac. 694. That was a disbarment proceeding instituted by the Attorney General in the Supreme Court, and the order was that the state should recover its costs. The opinion does not disclose what statutory authority there may have been for the recovery of costs, and no question appears to have been raised as to want of authority. The above text from Cyclopedia also cites the following cases, which hold that costs are not recoverable in disbarment proceedings, in the absence of an express statute upon the subject: Morton v. Watson, 60 Neb. 672, 84 N. W. 91; In re Eaton, 7 N. D. 269, 74 N. W. 870. To the same effect is Turner v. Commonwealth (Ky.) 2 Metc. 619. The above cases are all that are cited on this subject by either party to this appeal, and we are satisfied that it is the correct rule not to tax costs against either party in a disbarment proceeding, in the absence of express statutory direction. Such a rule, we believe, is wholesome, and will tend to prevent the hasty and ill-considered initiation of disbarment proceedings, which may not be prompted altogether by a desire to serve the public good. Such proceedings should be prompted by the sole and pure desire to serve the public good,

87 P.-67

and not for the purpose of serving any private end. One is more apt to be controlled by a pure spirit of regard for the public welfare, if there is no prospective compensation in the way of recovery of costs. In the case of In re Eaton, supra, the court said: "In theory, the attorney who prosecutes acts as impartially and disinterestedly as the judge who presides in such a proceeding, and both act wholly for a public object, and that object is the purification of the bar and the protection of the court and the public from the evil consequences sure to result from allowing an unworthy person to exercise the official functions of an attorney at law. The Legislature, whether wisely or not, has not seen fit to provide in this statute for the recovery of either costs or disbursements by either side. * * * In brief, our conclusion is that, on account of the anomalous and wholly unique character of a disbarment proceeding, costs should not be awarded to either party in the proceeding, in the absence of express legislative authority.” It is also true that one is less apt to be discouraged from making proper disclosures as to the conduct of an attorney if he knows he is not chargeable with costs. In Morton v. Watson, supra, the court pertinently remarked: “The parties who signed the information upon which this proceeding was based were not plaintiffs in a case. On the contrary, they were more nearly friends of the court, their action having been evidently actuated by a desire to assist it in an inquiry into the conduct of one of the members of its bar. To designate them as parties to an action, whereby they might be mulcted in costs, should the charges preferred be not sustained, would strongly tend to discourage disclosures of wrongful conduct upon the part of members of the legal profession, and would, therefore, be against sound public policy. At law, costs are the mere creatures of statutes. As there is no law specially providing for taxation of costs in proceedings of this nature, and as the awarding of costs depends upon statute, the lower court was without power to tax them against these informers, who, in the sense employed by the Code, were no parties to the proceedings.”

We, therefore, conclude that costs in the trial court are not taxable against either party, and that it was such error to tax costs against appellant as calls for relief on appeal. Many witnesses were in attendance, and the costs were necessarily heavy. Ap. pellant was required to appeal to this court to get relief from the erroneous judgment. Being aggrieved by such judgment, he had the clear right of appeal, and the costs there. of must be governed by the appeal statutes. The relief accorded him here is of such a substantial character as entitles him to recover his costs on appeal. Such costs should not, however, be charged against the relators, but against the state, on whose relation, in whose behalf, and for whose benefit alone

the relators acted, and at whose instance the the south, is known as the "main lead” track, erroneous judgment was entered.

and is where the engines from the roundThe judgment is in all respects affirmed, house are run out into the yard for their except as to the recovery of costs below. | trains. On the day of the accident plainThe cause is therefore remanded with in- tiff was called to go out as head brakeman structions to modify the judgment in that on his run to the east about noon. When particular, to the effect that neither party he reached the yards, he found his engine shall recover costs. In taxing appellant's No. 143, standing on the main lead track, costs in this court the costs ordinarily re- headed east. It is the head brakeman's duty coverable on appeal shall be taxed in his to get his engine attached to the train and favor against the state.

pilot it through the yards. When plaintiff

reached his engine, his conductor told him to MOUNT, C. J., and FULLERTON, ROOT, hurry up and get his engine on the train. CROW, and DUNBAR, JJ., concur.

Plaintiff then walked to the east between the main lead and the coal tracks to see if the

switches were set properly. As he came (45 Wash. 92)

opposite the ash pit, the steam was rising ANSON v. NORTHERN PAC. RY. CO.

from it so that he did not notice the switch (Supreme Court of Washington. Dec. 18, 1906.) stand and walked against it, continuing MASTER AND SERVANT-INJURIES TO SERVANT down the track to a point where he could --CONTRIBUTORY NEGLIGENCE.

see the switches were all clear. He then Plaintiff, a freight brakeman, while attending to his duties in the yards before taking

turned to go back to his engine. As he his train out on the main track, and while his turned, he noticed an engine, No. 207, standtrain was standing on a track leading to the

ing on the coal track at the coal bunkers. main track, started to return to his train, passing along between the track on which his train

This engine was also headed east. The plainwas standing and one leading into the round- tiff saw no one around it, nor any steam ishouse. Under the latter track was an ash pit suing from it. He went back as he came, from which steam was rising, and on this track was an engine, standing about 150 feet from the

until he reached the switch stand opposite ash pit. When opposite the ash pit, plaintiff the ash pit, when he stepped over towards stepped over towards this track to avoid a switch the coal track to avoid the switch stand, stand, and was struck by the engine on that track which was backing down without ring

and was immediately struck by engine 207, ing its hell, contrary to a rule of the company.

which was backing down towards the roundPlaintiff saw this engine when he started to re- house. A rule of the company provides that turn to his train, but did not look to see if

the engine bell must be rung when the engine it was coming when he approached the track because the steam would have hidden it. He

is about to move. A hostler was in charge had been a bra keman many years, and was of this engine, whose duty it was to see that familiar with the yard. Held, that the negli.

the bell was rung, and the engine was equipgence of plaintiff would prevent his recovery for injuries resulting from his own and defend

ped with an automatic bell ringing device. ant's negligence.

Plaintiff also offered to prove that it was Appeal from Superior Court, Spokane Coun

the custom of the yards to ring the bell ty; Wm. A. Huneke, Judge.

when an engine was moved. We will con

sider that this was proven ; and it will be U

Action by W. 0. Anson against the Northern Pacific Railway Company and others.

conceded, for the purposes of this case, that Judgment for defendants and plaintiff ap

no warning was given of the movement of peals. Affirmed.

the engine, by bell, whistle, or otherwise.

Plaintiff states in his brief that if Waters, Graves, Kizer & Graves, for appellant. the hostler, had looked, he could not have Edward J. Cannon, for respondents.

failed to see plaintiff walking between the DUNBAR, J. Accepting appellant's state

tracks with his back to the engine, since ment, the accident which occasioned plain

there was no obstruction of any sort there. tiff's injuries occurred in the defendant com

But the testimony of plaintiff we think will pany's yards at Spokane. Spokane is a di

not bear out this proposition. Engine 207, vision terminal point; the company having

when it started, was about 150 feet from the there a large roundhouse and extensive yards

ash pit. Just after plaintiff had turned out in which its trains are made up. Plaintiff

to avoid the switch stand he was struck was a freight brakeman, and was injured

by the corner of 207's tender, thrown down, while making ready to go out on his run. Just

and received the injuries complained of. Upat the door of the roundhouse in the yard

on the close of plaintiff's testimony defendis a turntable. Leading from the turntable

ants challenged the sufficiency of the testito the east are two tracks. The one to the mony, which motion was sustained, and vernorth, under which for quite a distance dict for the defendants was ordered, upon there is an ash pit, lies alongside of the coal

the ground that plaintiff was guilty of such bunkers, and is known as the "coal" or negligence as would bar recovery. Appeal "cinder" track, and is used for taking en- is taken from this judgment. gines into and out of the roundhouse, for the We are unable to distinguish this case in purpose of coaling, watering, and removing any essential particular from the case of ashes from them. The track next to it, to Baker v. Tacoma Eastern Ry. Co. (decided

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