The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1896-02-25
IN SEATTLE MARCH 3.
The Northern Pacific Case Will
Be Heard.
JUDGE GILBERT ON THE BENCH.
Much Speculation a. 60 Whether Jsn-
kins' Appointments, Bigelow and
McHenry VIII BE Confirmed.


Tuesday for the hearing or the application
for a change OF receivers in the Northern
Pacific railroad case. Judge Gilbert. OF
Portland. will sit here at that time. and
The case VIII be heard before him He
has been for some time in San Francisco
in attendance upon the circuit court OF
appeals, Of which he Is . member. and
Judge Hanford's order refers TO his du-
ties there as having prevented his hear
ing this case sooner.
No one can forecast with any certainty
what course viii be taken In the case next
Tuesday. That IL viii decide the question
OF A F. Burletgh's rece!ve-ship seems
probable Many suppose thai Judge Gil
hert VIII order formal compliance with
Justice Fields order. which Is still on file
in the United States court clerks office
In Seattle, recognizing the United States
court for the Eastern district OF Wiscon-
sin as the court OF primary jurisdiction.
and confirming Nsssrs. Bigslow and Nc
Henry. Judge Jenkins appointees. as re-
ceivers for the road.
But II Is possible that other applica-
tons may come before Judge Gilbert, and
indeed the language OF Judge Hanford's
order rather implies that there viii be. IL
will certainly bring about soLae interest
ing Developments IL Judge Gilbert should
decide TO stand by the former action Of
Judge Herman, OF Spokane, lust before
his death, published long argument. in
which he maintained that the agreement
reached by the four justices OF the SUI
irene court was not in the nature OF q
supreme court decision. and that Judge
Hanford might stand his ground His
argument apparently touches one phase
OF the case not elsewhere discussed. 1t
is generally conceded that while the agree
-nent OF the four justices Is not of itself
a court order, vet each Of the four JUS
tees has the power 10 make IL so In his
own judicial district But Judge Her
man contends that for any one OF these
four Justices 10 override the former ac-
ton OF circuit court would be TO assume
for himself an appellate jurisdiction over
that court. He says:
an a case IN which Mr.. Justice Harlan
and Mr.. Justice jackson sat in the circuit
court Of the Sixth circuit, those distin-
e1iished jurists in a former opinion held
that circuit court Of the United States
cannot take jurisdiction of a bill whose
only purpose Is an ancillary receivership;
that such a bill must be dismissed and an
independent suit commenced in order to
invoke the jurisdiction OF the United
States circuit court Of another circuit.
''The receivers, when they came through
each Jurisdiction and were appointed by
the courts in such jurisdictions. were a
part and parcel OF the court 50 appointing
them: and the court had right, after ap-
pointing the receivers. to know what they
were doing with the property; and Il had
a right 10 ask the receivers to account for
all operations performed by them in each
Jurisdiction.
mo one contends, nor ever has con-
tended. that the appointy nent OF a receiver
by one of the Federal judges in the Sec
ond circuit, namely New York. could make
that person receiver. by the mere fact Of
his appointment, in the Seventh, Eighth
and Ninth circuits. without due action by
the circuit courts in said circuits being
first taken thereon. There being no ques-
ton in regard to this proposition, the ap-
pointment of receivers as declared by the
supreme court of the United States, must
be discretionary with the judge OF each
court. The judges therefore appointing
receivers have a right TO remove them
whenever, in their Judgment. II Is advis-
able so to do. and no reason need be given
therefor.
The trustee and the receivers having
voluntarily come into the Ninth circuit.
and requested and obtained their appoint
ment from Judge Hanford. he had a right
to require them to account to him for
their doings under his appointment. This
they refused to do. and rather than ac-
count. which In itself was reflection on
their actions, they rendered their resigna-
tons in order 10 avoid the accounting.
Their designations were not accepted by
the court, and could not be without a
sanction by the court OF any Irregularities
of which they might have been guilty.
Upon their refusal, Judge Hanford re-
moved them. which he had a right TO do.
and appointed Mr.. Burleigh. This was
within Judge Hanford's power. he having
previously appointed the Cakes receivers.
How the advisory order OF the four SUI
preme Judges IS 70 affect this appointment
of Mr.. Burleigh IS a matter i have been
unable TO discover. No one connected with
the matter can for a moment suppose that
the four judges would undertake to over
rule the solemn decisions OF the supreme
court of the United States; certainly not.
sitting as they were as a mere advisory
board. and not In any official capacity. The
latest official enunciation OF the supreme
court land in fact the doctrine has never
been questioned by any court OF last resorD
Is that the removal or appointment or
receiver rests IN the sound discretion Of the
court making the order. and Is not revisaele
here ia U. s. 5t0-4s. The supreme court
OF this state has also held this same doc
frine. How this advisory order is going 10
affect anything except the accounting part
OF the road IS matter which is yet. IN my
Judgment. unsolved.
1T would not be a very pleasant matter
for either OF the Judges recently acting as
an advisory board 10 visit the circuits over
which they have been assigned by the SUI
prerne court 20 set aside the order made by
the Judges appointing these receivers.
There is no appellate Jurisdiction conferred
upon these advisory judges. except by law
when they constitute part OF the supreme
court of the United States, and the appel
late Jurisdiction Is vested by the const!tu-
ton and laws OF the United States In the
suDrArne court court, and not IN the
members thereof The act OF the judges
amounting the receivers Is the act OF each
circuit court, not OF any judge thereof IS
a Judge. As these orders are not revisable
hv the supreme court. being discretionary.
there IS no way in my Judgment. after the
orders have been made and the term OF
the court iapses after such order, fer any
review TO be Rad whatever by any appel
late trfbunsl or co-or3tnats Judge. TO set
aside the action OF a court OF the United
S,ates''
Mr. RrfrIefgh IS sim In en-. East and u
ne ia here at all next Tuesday. win have
- move promptly. as he had not left New
York last night
AS Judge Hanford'. order IS particuis -
Is interesting Just now II is here given in
fun:
..rhs Farmers Loan and Trust Com
many vs. the Northern Pacific Railroad
Csrnnauv. Tire above named complain
ant having heretofore. by So attorneys,
sfr. Sooner and Mr.. Flanders. made ap-
plscation 20 Hon William z Gilbert. one
az the Judges o. this court. az San Fran
leo =, remove from office Mr.. Andrew
= rsurfeigh. receiver therein, and 10 con-
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