this exchange without being convinced of the fact that the principal inducement is, not "to promulgate and enforce among the members correct and high moral principles in the transaction of business," as stated in the articles, but that it is, rather, to prevent competition, along certain lines, among those engaged in the live-stock commission business, and to maintain uniform minimum prices for their services. Thus, by section 11 of rule 9, a commission man or firm is prohibited, under penalty of a fine of not less than $500 nor more than $1,000, from sending a prepaid telegram giving information as to the condition of the markets to a farmer or stockman contemplating the sale or shipment of stock. Another rule prohibits members from doing business with one not a member, who attempts to transact the live-stock commission business at the Kansas City Yards. These and other rules of a like character are, apparently, the main features of this organization, which make a membership therein so valuable. The exchange makes no pretense of giving direct aid to its members in securing business, but leaves that to their own individual efforts. Its profitableness, however, is, no doubt, greatly augmented by reason of the fixing of charges by a combination which is powerful enough to monopolize such services. An organization having such objects is an unlawful combination, which is expressly prohibited by law. Laws 1889, ch. 257. Combinations and associations which are entered into for an illegal restraint of trade are usually organized with great skill, and with a special view to covering up the unlawful purposes by professed designs and objects which are lawful; hence the recognized diffi culties which obstruct the enforcement of all general laws against unlawful trusts and combines. This fact, doubtless, induced the legislature of this State to enact a law which was specially designed to prevent and suppress unlawful combinations of persons engaged in buying or selling live stock for others on commission. Laws, 1891, ch. 158. That act not only makes it unlawful for two or more persons or corporations engaged in such business to enter into any combination for the purpose of regulating the charges to be demanded, but it specially provides: "It shall be unlawful for any person or persons, corporation or corporations, doing business in this State, to be or become a member of any society, association, or corporation whose by-laws provide for and fix the minimum commission for the selling of live stock for others, or whose by-laws prohibit its members from purchasing live stock from persons who are not mem bers of such society, association or corporation." And any one violating its provisions is deemed guilty of a misdemeanor, and subject to severe penalties. The plaintiffs invoke the act to invalidate and nullify the by-laws which they are charged with violating; while the defendants contend that its legal effect is to put the plaintiffs in the position of asking the courts to maintain them in a membership which is a direct violation of the law.

The association of the persons composing the exchange is a voluntary one. Their mutual rights, of whatever nature, are contractual. Any right which the plaintiffs may have to membership is based upon, and grows out of, the contract entered into between them and the exchange, at the time they became members and signed the articles of association. The right to the relief which they ask against the threatened action of their associates is based upon the recognition of this contract, and granting the relief would e the solemn declaration of the law that they must not be deprived of its privileges and benefits. No

only is the entering into such contract relations expressly prohibited by the statute, but the simple act of continuing the relationship is made a misdemeanor, subject to severe penalties. The contract of membership is therefore illegal and void, and no right can grow out of it. Hence it comes to this: A court of equity is asked to assist the plaintiffs in carrying out an illegal contract, so that they may enjoy its fruits, and to aid them in maintaining a position, as members of an organization, which can be done only by a con tinual violation of the law. This will not be done. The law will not allow any effect to an illegal contract, either by enforcing it, or by aiding one to secure benefits accruing from it. Whenever it is necessary for a plaintiff to establish or rely upon any illegal contract, as a basis of his right to relief, the courts will not stop to inquire into the merits of the controversy, but will at once refuse to exercise their jurisdiction in his behalf. The general rule is thus stated by Mr. Pomeroy: "Whenever a contract or other transac tion is illegal, and the parties thereto are, in contemplation of law, in pari delicto, it is a well-settled rule, subject only to a few special exceptions, depending upon other considerations of policy, that a court of equity will not aid a particeps criminis, either by enforcing the contract or obligation while it is yet executory, or by relieving him against it, by setting it aside, or by enabling him to recover the title to prop erty which he has parted with by its means. The principle is thus applied in the same manner when the illegality is merely a malum prohibitum, being in contravention to some positive statute, and when it is a malum in se, as being contrary to public policy or to good morals." Pom. Eq. Jur. § 402. See, also, Mellison v. Allen, 30 Kan. 382, 2 Pac. Rep. 97; WaterSupply Co. v. City of Potwin, 43 Kan. 404, 23 Pac. Rep. 578; Sheldon v. Pruessner, 52 Kan. 579, 35 Pac. Rep. 201; Yount v. Denning, 52 Kan. 629, 35 Pac. Rep. 207; Buchtella v. Stepanek, 53 Kan. 373, 36 Pac. Rep. 749; Woodworth v. Bennett, 43 N. Y. 273; Watson v. Fletcher, 8 Gratt. 1; Griffin v. Piper, 55 Ill. App. 213; Watson v. Murray, 23 N. J. Eq. 257; Spalding v. Preston, 21 Vt. 9; Abbe v. Marr, 14 Cal. 210; Nester v. Brewing Co., 161 Pa. St. 474, 29 Atl. Rep. 102; Rigby v. Connol, 14 Ch. Div. 482; Swaine v. Wilson, 24 Q. B. Div. 252; More v. Bennett, 140 Ill. 69, 29 N. E. Rep. 888; Salt Co. v. Guthrie, 35 Ohio St. 666; Coppell v. Hall, 7 Wall. 542; Armstrong v. Toxler, 11 Wheat. 258; Roby v. West, 4 N. H. 285; Dillon v. Allen, 46 Iowa, 299.

While the above are for the most part cases in which the plaintiff sought to recover the fruits and benefits derived from an illegal contract, yet they all involve an application of the same principle. The mere fact that the courts in very few instances have been appealed to, to aid a party in carrying out an illegal contract, or to enable him to enjoy future benefits to be derived therefrom, and that parties to such contracts, with few exceptions, have ventured into court only for the purpose of recovering something already earned, or damages previously sustained, is strong evidence of what the opinion of the legal profession has been upon this question. Our attention has been called to no case, and we know of none, in which a court of equity directed the specific performance of an executory contract which was tainted with illegality, or in which the parties to it were granted any as sistance in carrying it out. Rigby v. Connol, supra, was an action similar to the one at bar, in which the plaintiff sought to restrain the trustees of a trades union from excluding him from membership therein, because of his violation of a rule which, he alleged

was illegal and void. It was held that as the trades union was an unlawful association, for the reason that some of its principal objects were in restraint of trade, the court would not aid the plaintiff in maintaining his membership therein. In the opin ion it is said: "It appears to me that it is clearly an unlawful association. It is an association by which men are not only restrained in trade, but they are bound to do certain acts under a penalty. Take the very act for which this man was expelled. He was expelled because he bound his son apprentice in a shop where the workmen did not belong to this union, but to another union. That is the allegation. And the rule is that any man binding his son in a 'foul shop,' which, as it has been explained to me, includes a shop of this description, where the members employed belong to another union, and not to this union, shall be fined £5, and so on, according to the rules. I see a great number of other stipulations of a character which are not only a restraint in trade, but so much in restraint of trade, limiting the subject of it, that I have no doubt, before this act [legalizing certain trades unions] was passed, these rules would have been altogether illegal; and if nothing in the act, therefore, will assist the plaintiff, he must still be in the position of a member of an illegal association, coming to a court of justice to assist him to enforce his rights under that illegal association." In Spalding v. Preston, supra, Redfield, J., said: "One who sets himself deliberately at work to contravene the fundamental laws of civil governments-that is, the security of life, liberty, or property-forfeits his own right to protection in those respects wherein he was studying to infringe the rights of others. If any member of the body politic, instead of putting his property to honest uses, convert it into an engine to injure the life, liberty, health, morals, peace, or property of others, he thereby forfeits all right to the protection of his bona fide interest in such property before it was put to that use." In Coppell v. Hall, supra, considering the principle involved in such cases, it is said: "In such cases there can be no waiver. The defense is allowed, not for the sake of the defendant, but of the law itself. The principle is indispensable to the purity [of its administration. It will not enforce what it had forbidden and denounced. The maxim, Ex dolo malo non oritur actio,' is limited by no such qualifica tion. The proposition to the contrary strikes us as hardly worthy of serious refutation. Whenever the illegality appears, whether the evidence comes from one side or the other, the disclosure is fatal to the case. Wherever the contamination reaches,

it destroys. The principle to be extracted from all the cases is that the law will not lend support to a claim founded upon its violation." In Roby v. West, supra, the following forcible language is used: "The princi ple that no court shall aid men who found their cause of action upon illegal acts is not only well settled, but a most salutary principle. It is fit and proper that those who make claims which rest upon violations of the law should have no right to be assisted by a court of justice. It is fit and proper that courts should refuse their aid to those who seek to obtain the fruits of an unlawful bargain. It is fit and proper, when parties come into court to litigate claims founded upon illegal contracts, in relation to which they stand in pari delicto, that they should be reviewed and treated in those transactions as outlaws, who have forfeited the protection of the law; and it is fit and proper that they should be left to adjust their unlawful concerns as they can, and enjoy the fruits of their transgressions of the law as they may." The general rule is thus

summarized by the court in the syllabus in Buchtella v. Stepanek, 53 Kan. 373, 36 Pac. Rep. 749: "Where parties purposely engage with equal guilt in illegal, immoral, or fraudulent dealings, the court leaves them where it finds them, and will not lend its aid to either party."

A very plausible and ingenious argument is made by the able counsel for plaintiffs, to the effect that a denial of the relief prayed for will keep the defendants in a position where they can enforce their illegal by-laws against members, and thus perpetuate their existence as an unlawful organization; whereas the granting of the relief would be a virtual wiping out of such illegal by-laws, and the exchange, with its members, would be left to conduct its business under valid and lawful rules and regulations. It is contended that the plaintiffs should be aided in resisting the enforcement of the illegal rules, and the defendants given to understand that such regulations and agreements will not be recognized or upheld by the courts. The argument is presented with much force and ability; but, in our opinion, it ignores the vital facts in this case, and calls for an abandonment of well-settled rules of law. We must not lose sight of the nature and object of this action. The plaintiffs' purpose is not to wipe out illegal by-laws; it is to prevent the wiping out of an unlawful membership. They seek to avoid the enforcement, as against them, of rules which, as alleged in their petition, they have been zealous and faithful in living up to and enforc ing against others. If retained as members, they would, no doubt, in the future, as in the past, not deny themselves the opportunity thus afforded to acquire illegal gains. When an association of this character comes before a court of equity, it will not stop to weed out the illegal growths which have fastened themselves upon it, and endeavor to fashion out of it something that is entitled to judicial recognition. It is clear that any order or judgment, whether for the plaintiffs or for the defendants, which the court could render in this case, would not eliminate from the exchange the obnoxious by-laws. So far as this action is concerned, they will remain without change. The organization itself will continue with unimpaired ability to violate the law, and with impunity to trample upon the public interests. A membership therein, after the judgment of this court is rendered, will be as much within the prohibition of the statute as it was before this action was commenced. These parties have, by their voluntary acts, created an organization which the law condemns, and one with which no man can be connected without being answerable to the laws of the State as a criminal. Clearly, the law will not aid them under the circumstances. A court of equity takes them as it finds them, and as it finds them it leaves them, undeserving of aid and assistance in a matter which inheres in, or grows out of, their illegal contracts.

and excluding from a participation in its councils those of its officers who are shown to be corrupt, dishonest, or untrustworthy.' The conclusion of the Idaho Supreme Court, therefore, that had they proceeded in the disbarment "respondent would be deprived of a right granted by the statute, and guaranteed by the constitution" is contrary to the overwhelming weight of authority. The Idaho Supreme Court fails to recognize the clearly defined distinction between indictable offenses committed by an attorney in the course of his professional employment, and those committed in his private capacity, in no wise connected with his professional employment. An examination of the California cases cited by the court and others not cited and evidently not seen, illustrates this. In Tilden's Case, the charge was a moral delinquency wholly disconnected with the oath or duty of the attorney, nor was the charge, which was larceny, alleged to have been committed in violation of his professional obligations. In Stephen's Case, the charge was a fraudulent appropriation of money. The court declined to entertain the charge unless the complainant had shown his good faith in attempting to establish his claim against the attorney by regular proceedings in the proper

court.

5

In Ex parte Tyler, the petitioner applied for a writ of habeas corpus from a judgment of imprisonment for contempt of court in practicing before the court while a judgment of suspension from practice was in force against him. In support of his application, petitioner contended that the court, in originally entertaining disbarment proceedings, had no jurisdiction, and that the judgment was therefore void, for the reason that the charges against him in the disbarment proceedings, to-wit, embezzlement and subornation of perjury, were felonies, and that he could not be convicted of those of fenses except by a jury. The court held that an examination of the proceedings under which the petitioner was suspended, showed that the charges were for the violation of his duties as attorney and counselor, and of unprofessional conduct, and that whether the evidence offered in support of

4 State v. Winton, 11 Or. 456, 5 Pac. Rep. 337. In re Tilden, 25 Pac. Rep. (Cal.) 687 (not officially reported).

6 In re Stephens, 102 Cal. 264, 36 Pac. Rep. 586. 7 107 Cal. 78, 40 Pac. Rep. 33.

The

the charge would have maintained an indictment was immaterial, and the writ was discharged. In State V. Cadwell, the attorney took a decree of court into his possession, and surreptitiously changed and altered it, with the corrupt purpose and intent to defeat the rights of the parties thereto, and to advance his own interests. It was contended that he ought not to be disbarred because it was not shown that he had committed or been convicted of any crime. court held that the question presented was not whether the attorney was guilty of a crime of which he had been or ought to be convicted, but whether under the facts he was fit to practice law and use the license of the court to carry on nefarious practices as an attorney. In State v. Winton,9 the charge was willful deceit, and professional misconconduct and violation of confidence, and objection was raised to the jurisdiction of the court to issue an order to show cause on the ground that the matter charged, although done in a professional character, constituted an indictable offense and could not be tried in a summary manner. The court, through Judge Lord, in an opinion which for its vigorous and exhaustive discussion of this question is unsurpassed, overruled the objection. The court in the subsequent case of State ex rel. Idleman v. Cowing,10 while adhering to State v. Winton, dismissed the information on the ground that the perjury which was denied, if committed at all, was committed in a private capacity, and not in the line of a professional relation. The court said that while it was the better rule to summarily diebar an attorney where the crime charged affected his moral character and fitness to practice, and was admitted or clearly proven, yet where the charge was of a single criminal act, "committed in his private capacity," and the evidence was conflicting, and doubt existed as to his guilt, it was eminently just and proper that the accused should be accorded the right of trial by jury. Mr. Justice Bradley, in Ex parte Wall, supra, very exhaustively reviews all the English and American authorities bearing upon the question under discussion, and clearly recognizes the distinction between acts committed out

8 40 Pac. Rep. 176 (Mont. 1895).

9 11 Or. 456, 5 Pac. Rep. 337. 10 38 Pac. Rep. 1090 (Or. 1895).

side the professional relation, and those committed by virtue of it. In that case, the lower court had summarily disbarred an attorney for advising and encouraging mob violence, and on mandamus to compel the lower court to reverse the order, it was strenuously contended, that when a crime was charged against an attorney for which he may be indicted, and the truth of the charge was denied, disbarment would not lie, especially if the act charged was not committed in a professional capacity. The court considered that under such circumstances of outrage, and open defiance of the laws, the lower court properly exercised its summary power of removal. On mandamus to compel the lower court to vacate an order disbarring relator for abstracting a subpoena, and tampering with a decree of court after it had received the sanction of the judge's signature, though the relator's misconduct was without any bad motive or fraudulent design, it was contended that the charge of abstracting the subpoena could not be urged as a ground for disbarment, because, if the charge was true, it was a criminal offense, but the court thought the rule well sustained, that where the charges were for misconduct in the practice, though such misconduct amount to an indictable offense, the court would proceed in disbarment without any regard to a previous criminal prosecution. "The court does not proceed in such cases upon the theory of punishing the attorney, but it investigates the question of professional delinquency to determine the fitness of the attorney to be intrusted with the conduct of causes, and the administration of law." It will thus be seen from examination of the authorities, that where an attorney is charged with a violation of his professional obligations, either to his client or the court, or with professional delinquency in matters pertaining peculiarly to the relations between him and his client, it is no defense to a disbarment proceeding that the misconduct may render him liable to a criminal prosecution. The courts have almost uniformly exercised their summary power of removal, notwithstanding the charges may form a basis for an indictment. This is an inherent power residing in all courts; and while it may sometimes be true,

11 State v. Finley (Fla.), 11 South. Rep. 500; In re Shepard (Mich.), 67 N. W. Rep. 971.

that for an offense committed by an attorney in his private capacity, the courts will remand the charges to the proper tribunal for trial by jury, yet, as we have seen, the rule is not an inflexible one. The opinion of the Idaho court in the Tipton case, shows that the charge was "a direct, unequivocal charge that the respondent accepted and received a bribe while he was the regularly qualified and acting city attorney of Boise City; that it was given to him to influence his action, as such attorney, in favor of the parties giv. ing it." The case, therefore, properly falls within the distinction drawn in the decisions heretofore cited, and the power to have proceeded summarily, is sustained by an imposing array of authorities. The decision is also squarely in the teeth of one of its former adjudications.12 In Badger's Case, the charge was that he did corruptly instigate, suborn, and persuade one Abbott to falsely and fraudulently personate and represent herself to be one Wing. He was summarily disbarred. For aught that appears to the contrary, the suborner of a perjury was as much entitled to a trial by jury as the venal attorney who accepted a bribe. Why the court in view of its decision on a charge of subornation of perjury, should in defiance of that decision which is in line with the uniform adjudications of other courts, stand palsied at a crime, which, to-day is threatening free government, does not appear from the record. Where the misconduct charged against an attorney is indictable, but in no manner connected with his professional employment, and the misconduct is not admitted, there has been son'e diversity of practice among the courts. In some cases the courts have held that where the misconduct is of such gross character as to gravely affect his standing, they will exercise their summary power of removal. In other cases it is held that there must be regular criminal proceedings instituted, before the court will proceed to strike from the roll.13

12 In re Badger, 35 Pac. Rep. 839, 38 Cent. L. J. 411. 18 See Ex parte Wall, 107 U. S. 265, where all the English and American authorities bearing on the question are collated and discussed. See, also, State v. Winton, 11 Or. 456, 5 Pac. Rep. 337; In re Shepard (Mich.), 67 N. W. Rep. 971. In the latter case the charge was unprofessional conduct in attempting to stifle evidence of the commission of a crime. The court declined to discuss the attorney's right to trial by jury, saying that the control of admission to the bar was confined to the courts, and that juries had nothing to do with it, and that it was the uniform