42 P.(2d) 776

#### In re ZINN.

No. 4006.

Supreme Court of New Mexico.

March 21, 1935.

*162Edward R. Wright, of Santa Fe, presenting tbe charges by court appointment.

J. O. Seth, of Santa Fe, H. M. Dow, of Roswell, and Fred E. Wilson, of Albuquerque, Cor respondent.

PER CURIAM.

The respondent, a member of tbe bar of this state, was complained of before tbe grievance committee of tbe board of commissioners of tbe state bar for professional misconduct. Tbe grievance committee, having heal'd the complaint, reported to tbe board of commissioners of tbe state bar tbe belief of its members that reasonable cause existed for tbe filing of formal charges based upon such complaint.

Acting upon said report, tbe board of commissioners of the state bar directed tbe preparation and filing of said charges with this court. This was done in due course. Thereupon we referred tbe matter to tbe board of commissioners of tbe state bar as referees to bear tbe charges, make findings of fact and conclusions of law thereon, and report tbe same to this court for consideration and disposition. See In re Zinn, 38 N. M. 449, 34 P. (2d) 1097.

Tbe matter was beard before seven of *he nine members of said board of commissioners! two having been relieved of duty in this behalf upon tbe suggestion of their disqualification, and is now before us upon tbe report of tbe aforesaid referees, reading as follows:

“Report of Commissioners of State Bar.

“Tbe Board of Commissioners of tbe State Bar of tbe State of New Mexico, to whom this matter was referred as Referees by tbe Supreme Court of tbe State of New Mexico, respectfully report as follows:

“That this cause came on for bearing before tbe Board on tbe 14th day of March, A. D., 1935; tbe prosecution being represented by E. R. Wright, Esq., and tbe Respondent being present in person and being represented by J. O. Seth, Esq. and H. M. Dow, Esq.; and both tbe prosecution and respondent having produced their evidence and rested, tbe Board finds tbe facts as follows, to-wit:

“Findings of Fact

“1. Tbe Respondent, A. D. Zinn, is a member of tbe Bar of tbe State of New Mexico.

“2. On tbe 17th day of June, 1932, tbe respondent being then Special Assistant Ta'x Attorney employed by tbe State Tax Commission, and having charge of tbe collection of delinquent taxes for tbe County of McKinley, received the sum of five hundred dollars from one H. D. Williams, who was then delinquent in tbe payment of taxes, on personal property, by him owing in the sum of approximately sixteen hundred dollars, as shown by tbe tax rolls of McKinley County; and said sum of money was so received by respondent with instructions that tbe same should be *163applied on the payment of taxes owing by said Williams.

“3. That said sum of money was so received by respondent pursuant to an arrangement theretofore made by and between respondent and one G. W. Kerner, acting as the agent of said H. L. Williams that said sum of money should be deposited with respondent, and that the said Williams should institute suit for the correction and reduction of the amount of taxes by him owing, it being then admitted by respondent that the tax assessed against said Williams was excessive and discriminatory.

“4. That respondent had theretofore issued and had levied upon the property of said Williams a distraint warrant; and had agreed with said Kerner that said distraint warrant should be released upon the payment of said sum of five hundred dollars; and that upon the payment of said sum of five hundred dollars as aforesaid, said distraint warrant was released by respondent.

“5. That immediately after the receipt of said sum of five hundred dollars by respondent from the said H. U. Williams, respondent remitted said sum of money to E. E. Hutton & Company of Hollywood, California, a brokerage house dealing in stocks listed upon the stock exchange, and had said money by said brokerage firm credited to the account of respondent A. L. Zinn and his wife, Lucille E. Zinn; and thereby commingled the said sum of money so received by him from said H. L. Williams with his own funds.

“6. That thereafter the respondent us»d the money hold in said account by said brokerage firm, including the said sum of five hundred dollars received from the said H. L. Williams, in trading in stocks.

“7. That at the time of the arrangement between respondent and the said Kerner, representing the said Williams, for the payment of said sum of five hundred dollars, the said Kerner promised respondent that the said Williams would within sixty days institute suit for said tax adjustment.

“8. That thereafter and on the 9th day of September, 1932, respondent after a conference with the said Kerner, who was then still representing the said H. L. Williams, issued a second distraint warrant upon the property of the said H. L. Williams and delivered same to the said Kerner, who promised to deliver it to a deputy sheriff for service; but that said distraint warrant was never in fact served and no property of the said H. L. Williams was distrained by virtue thereof; and that at a later date, said disti*aint warrant was returned to the office of respondent in Gallup; New Mexico.

“9. That on the 15th day of September, 1934, the said Williams sent a second sum of five hundred dollars to respondent with instructions that said money should be applied either on the taxes by him owing or upon a judgment which respondent had theretofore obtained in a civil action against the said Williams.

“10. That immediately after the receipt of said last sum of five hundred dollars, respondent transmitted said sum of money to the E. E. Hutton & Company, the said brokerage firm, and had the same credited to the ac*164count of respondent, A. U. Zinn, and liis wife, Uucille E. Zinn, and thereby commingled said money with his own funds.

“11. That all money placed by respondent with the said E. F. Hutton & Company, including the one thousand dollars received from H. U. Williams, as well as his own money, was in a joint account of respondent, A. U. Zinn, and his wife, Uucille E. Zinn, pursuant to a contract entered into by and between said Zinn and the said company, a copy of which said contract is in evidence as Exhibit 1-a to the deposition of Al Esswein, Jr.

“12. That thereafter respondent used the f uhds in said account with the said E. F. Hutton & Company, including the said second sum of five hundred.dollars received from said ¿I. U. Williams,-in trading in stocks.

“13. That respondent continued to hold all of said money so received from the said H. U. Williams as aforesaid until the 31st day of January, 1934, when he remitted the sum of one thousand dollars to the Clerk of the District Court of McKinley 'County, New Mexico, suit for the adjustment of taxes having been instituted by the said H. U. Williams in the month of May, 1933, without the knowledge of respondent, who first learned that suit had been instituted a day or two before he remitted said money to said District Court Clerk.

“14. That at all times while respondent had the moneys so received by him as aforesaid from the said H. U. Williams commingled with his own' funds, he was financially able to respond to any demand which might have been made upon him by said Williams for the sum of one thousand dollars.

“15. That on the 30th day of December, 1932, respondent advised J. D. Mell, Esq., Special Tax Attorney for the State Tax Commission, residing at Santa Fe, New Mexico, that he was holding the sum of one thousand dollars of money belonging to Williams subject to the payment of such taxes as should be required by any order of Court made for the adjustment thereof, and for the payment of certain other claims in respondent’s hands if there should be any excess above that required for the payment of taxes; and that he expressed the desire that said Mell should take charge of the matter by conference with Williams or the agent of Williams so that respondent could dispose of the money belonging to Williams so held by him.

“16. That respondent, in so commingling the money belonging to Williams with his own,„ acted without fraudulent intent to deprive said Williams of his money, but at no time made disclosure as to how said money was being held.

“17. There is no substantial evidence in the record in support of any other charge or charges made against respondent in the citation issued by the Grievance Committee of the Board of State Bar Commissioners.

“Conclusions of Uaw.

“From the foregoing findings of fact , the Board concludes as a matter of law:

“1. That respondent received the money in question as a trust fund.

*165“2. That respondent violated his duties as a member of the Bar when he commingled said funds with his own. * * *

“Por a further report the Board files herewith all depositions, together with all exhibits received at the hearing, and report that stenographic notes have been taken of all oral testimony which can be transcribed at any time the Court should so order.

“Respectfully submitted this 15th day of March, A. D. 1935.”

Counsel appointed by us to present said charges and counsel for the respondent have appeared before us and argued the effect of the findings and conclusions so filed. Upon these unchallenged findings and conclusions, which we confirm, it now becomes our duty to pass judgment.

It is our judgment, from the foregoing, that the respondent, A. L. Zinn, should be, and he is hereby, severely reprimanded, and that he should pay the costs of this proceeding which are hereby taxed against him in the sum of $423.49, and it is so ordered.

We desire in closing this opinion to express to Hon. Edward R. Wright of Santa Pe, an honored member of the bar of New Mexico, the appreciation of this court for the fair, able, and conscientious manner in which, under appointment of the court, he has performed the unpleasant duty which we imposed upon him of prosecuting the charges of professional misconduct against the aforesaid respondent.

It is also proper to say that our referees, selected by the bar of this state as members of the board of commissioners of the state bar, have performed in a manner befitting the profession to which they belong the high, although unpleasant, • duty imposed upon them under our order of appointment. We extend to them the appreciation of the court for the services rendered.

SADLER, O. J., HUDSPETH, BIOKLEY, and WATSON, JJ., and HARRY P. OWEN, District Judge.