The morning call., 1895-01-11
PHILBROOk WAS RASH
And 80 He Well Deserved His
Sentence.
SAYS THE CHIEF JUSTICE.
An Opinion That Was Not Filed With
the Others.
WHY DIDN'T PHILBRO0K RETRACT?
His Explanation That He Did Not Know
His Error Until Told by a
Brother Lawyer.
Why DIDN'T PHILBRO0k RETRiCT?

ings taken before the Supreme Court for
the disbarment of Attorney Horace w.
Philbrook The opinion concurs with
that delivered on Saturday last by the
other Justices. the Chief Justice deciding
that Philbrook's sentence was a ust one.
The opinion in question not having been
filed with The others, and some days elaps-
ing prior to its filing, it was the opinion OF
a good many that dissenting opinion was
about to be filed by the Chief Justice.
Such was not the case, however. Although
holding slightly different views from his
associates on some points, in the main he
agrees with the propositions advanced by
them. His Honor says:
My views Of this case differ In some particu-
lars from those of my associates.
1t was not because of MIR. Philbr0ok's assault
upon member OF this court-gross and unjus-
titled as l deemed 1t 10 be-that joined In the
order citing him to show cause. So far as that
part OF his of eIse was concerted. should
have waited until the final determination of the
appeal in Rankin VS.. Newman before deciding
what, IL any, action 1t was necessary or proper
TO take
But. as is clearly shown in the opinion of The
eourt-Mr. Phbrook did not confne himself
to an assault upon Justice Harrison in his char
as ADVISER and participant In the settlement OF
the executor with the surviving partners. He
went much further; he distinctly threatened
the other members OF the court Win public
infamy and disgrace If they did not decide the
cause OF Rankin VS.. Newman IN MS favor.
TINS he did. not only In the express terms OF
That part OF his brief set forth IN the citation.
but Indirectly and by every sort OF implication
through page after page of that portion of his
brief 10 which his attention was directed by. the
reference To said pages.
In his long and carefully prepared answer IN
writing Mr.. PhibroOk makes no retraetiOn or
qualification of this Objectionable language,
but on the contrary distinctly reavows every
thing he has said.
he claims, and 1 fully concede the claim,
that II Justice OF this court has been party,
or attorney, or witness, IN any other manner,
so connected with a cause which is on apDe al
here, as justly TO subject him 10 criticism.
counsel Charged with the prese ntation of such
case must be allowed the same freedom OF
crltisclsm as in the case of any other person.
Bu the logic OF this proposition is that the
fact that such party or witness is member OF
this court is wholly Irrelevant; it has nothing
10 do with the case. Mr.. Phlbrook, however,
does not hold himself bound by The logic of
his proposition. He does not criticize Justice
Ha.rison's conduct as attorney for Levlnson's
executor the same as il he were not a member
of the court, but apparently because he is men,
Der OF the count he asSais him with the bltlerest
lnYectlye, Tor The purpose OF giving point and
force TO the proposition TO which his whole
argument tends, that we cannot affirm the
order OF the Superior Court without making
ourselves participants OF the fraud which he
charges. and thereby giving all men reason TO
know that the courts OF the country are cor
rupt.
In this consists the offense OF whlch,si
my opinion, the court was compelled TO take
cOgniZance on its own motion-a step to which
may say We resOrted with great reluctance.
The law which in such cases makes US the
judges OF offenses against the court places us
In an extremely delicate and invldious posi-
ton, but 1t leaves US no alternative except TO
allow the court and the people OF the State, In
whose name and by whose authority il acts, tG
be lnsulted with impunity or TO exercise the
authority conferred by law for the purpose of
compelling attorneys TO "malntan the respect
due TO courts and Justices and judicial Off.
GERS"
III an attorney were to approach court Or
Judge with the offer OF bTibe TO decide a cause
IN his favor, or If he were to menace Judge
with personal violence or pecuniaIy loss II be
decided against him, 1t cannot be doubted hat
all men would c2ncede the propriety OF depriy-
ing him OF bis privileges as an attorney, and II
This Is so II cannot be denied that some penalty
is incurred by an attorney who re-enforces his
argument by announcing to the court with
endless repe titlOn, that an adverse cison Will
make the Judges participants OF fraud and
sharers in the infamy OF the perpetrators
The Chief Justice remarks that the
opinion of the court rendered on Saturday
last sets forth all these propositions of
fact, and that Mr.. Phiibrook himself, by
his iardy disclaimer made III the course of
his oral argument, seemed to admit the
iustco of those views. But he made no
disclaimer or retractlOn in his written
answer TO the citation, which remained a
public record of the court. On the con-
trary. be therein deliberately reaffirmed
and Insisted upon the pr0Drlety OF every
word contained 10 his brief.
he claims. of course, never to have UNDER
stood until his attention was called 10 il by a
brother attorney during recess of he court
n m ln&r hnTn ha n nGa of h
that he was charged with having menaced the
Judges with any dsagreea5le consequences 10
themselves In case OF an adverse decision. He
asks US 10 believe that, with one OF the most
offensive passages OF his brief set before his
eyes In the terms OF the citation, and with ten
days for the careful reconsideration which he
says In bis answer he has given TO the matter,
lie never saw what is patent TO The observation
of every on else
IL is difficult 10 credit Sir. Philbrook with
such simplicity OF understanding, but il may be
true that he has become so blinded By his ant
mostly against Jus ice Harrison and so domi-
mated by the belief that tile "Secrel transaction
of September 6, $780," as he terms 1t, was
gross and wicked fraud that he has lost the ca
pacily of regarding any other aspect OF the
case. Indeed bis conduct during the hearing OF
the citation would seem TO Indicate that this is
so.
Philbrook's peculiar semi pology or re-
traction is here referred 10 as taxing place
abruptly aud in the middle OF the proceed
to be wholly insufficient" In conclusion
his Honor remarks:
The proposition of law for which Mr.. Phil
brook contends, viz: that Notwithstanding
such settlement may have been entirely free
from fraud ID fact II must be held fraudulent IN
lava constructive fraud-becausc advised
and witnessed by gent man VINO was then
candidate for the Supreme bench. is one which
III Is open Tor him 10 argue, and since it is in
voved In the appeal of Rank In VS.. Newman
express no opinion concerning IL.
1t appears from Mr. Phibr0Ok's own show
ing that at the time Of the settlement neither
lie nor Ills clients, the mother and sisters of
Leyinson were claiming or had ever suggested
that the articles OF partnership were invalid.
On the contrary, they were then and afterward
asserting Their validity nd claiming under
Lhem Nor did they then claim or suggest that
the inventory made in pursuance OF the said
articles was false or incorrect in any particular,
except In the omission of the item OF the good
viii, the ole controversy being merely as TO
The proper construction of an agreement, then
conceded TO be valid and binding, with refer
euce TO tile single question whether or not Ii
embraced or excluded the "good will"
AS 10 this matter the difference between
them was open. express and well understood,
and there is not the slightest reason to SUPP pose
that Judge HarrisOn's opinion was less honest
or less SOUND than that OF Mr.. PhilbrOOk. Mr..
Philbrook. Ind ed, Is not entirely consistent
with himself m unlass I hay