The decision in this case rests upon the statement by the Judge that he was "disqualified to sit and try said cause by reason of having previously formed an opinion." In this, Judge Andrews evinced a spirit of the utmost fairness and scrupulous impartiality.

Had the opinion been limited to that conclusion, I would have concurred in it. I concur in the conclusion.

In the language of one of my distinguished predecessors on the Bench, "where we part company," is on the meaning and effect of the words "made known" as used in the statute, which determine when a Circuit Judge shall direct the State's Attorney to make a motion to disbar an attorney.

These words describe a state of mind much stronger and more fixed than that where only an opinion is formed.

It is repugnant to the Anglo-Saxon idea of fair and impartial trials to require or permit a judge to sit and determine the guilt or innocence of an attorney on a charge of dishonesty or other practices condemned by the statute, when such misconduct has been "made known" to him.

The term "made known," is stronger than "made to appear," yet it has been held that the latter imports a duty on the part of a judge to examine into the truth of the facts alleged, to ascertain their existence, and "to receive evidence upon the point by affidavits, or by depositions, or by means of an oral examination of witnesses in *Page 394 the presence of the court." Malone v. Richmond D. R. Co., 35 Fed. Rep. 625.

Since such a thorough examination and investigation is required by the words "made to appear," I cannot escape the conclusion that when a statute requires a matter to be"made known" to a judge before he acts, a like, if not a more thorough, investigation must be made by him, and when he does so, he is to a degree convinced of the guilt of the attorney and incompetent to try him, where he has to pass upon the fact of his guilt or innocence.

It can hardly be contended, yet that seems to be the effect of the decision of the court, that the term "made known" as used in the disbarment statute, means something less than "made to appear," and something less than "a full assurance and belief, to the exclusion of doubt and uncertainty."

In the case of Bowers v. Atchison, T. S. F. R. Co.,82 Kan. 95, 107 Pac. Rep. 777, the court held that the word "know," used in a rule requiring a brakeman who had given a signal to the engineer, to "know" that it had been seen, understood and obeyed, does not necessarily import absolute knowledge of a fact, which actually exists, but it means the full assurance and belief to the exclusion of doubt or uncertainty of a reasonable and prudent man based upon convincing evidence addressed to his intelligence or senses. See also Southern Ry. Co. v. Bryan, 125 Ala. 297, 28 South. Rep. 445; DeVaughn v. Harris, 103 Ga. 102, 29 S.E. Rep. 613.

It is not clear from the opinion, what degree of knowledge of the guilt of the attorney, the Circuit Judge must have before he directs the State Attorney to make a motion for disbarment.

He must act before disbarment proceedings can be instituted. *Page 395

The question presented, but which seems undecided by the opinion, is, shall a Circuit Judge pursue his investigation far enough to convince himself with reasonable certainty of the guilt of the offending attorney — in which event he would be clearly disqualified; — or should he direct proceedings to be instituted upon a light and cursory examination, or upon the affidavit of a person in whose integrity he did not have confidence?

The contention that if the Circuit Judge pursues his investigation to the point of convincing himself of the guilt of the accused so as to disqualify himself, he could not then order the State Attorney to institute proceedings, is not tenable, because, until he instructs the State Attorney to act, there is no cause pending in which he is disqualified. The Judge institutes the proceedings.

When it has been "made known" to the Circuit Judge as a result of his investigation, that the attorney is guilty of any of the practices condemned by the statute, he records and gives expression to that opinion by directing the State Attorney to institute proceedings, and from that instant his disqualification begins.

The discussion of this question, however, may be purely academic, as each Circuit Judge will have to decide for himself whether he will subject attorneys to the humiliation and stigma of answering in disbarment proceedings upon a cursory examination that does not satisfy him of the attorney's guilt — which seems unthinkable; or whether he will investigate sufficiently to become convinced of his guilt, and in that event, no doubt, the Circuit Judge would, in a spirit of fairness, disqualify himself. *Page 396