St. Paul daily globe., 1896-03-05
JUDGES GILBERT AND HANFORD
REFUSE TO GRANT APPLICA-
TION FOR REMOVAL.
REASONS FOR THE ACTION
ON AN ARGUMENT RECENTLY
MADE.
QUESTION THE ADVISORY ORDER,
Accounting Part of the Rail-
road.

SEATTLE, Wash, March Andrew
F. Burleigh will continue to act as the
receiver OF the Northern Pacific railway
company and its property in Oregon,
Montana, Idaho and Washington, and
draw a salary of $4,000 year.
Judges Gilbert and Hanford this
morning, IN written opinion, and in
no uncertain language, refused to grant
the application OF the Farmers Loan
and Trust company for his removal.
They likewise declined to appoint
Messrs, Bigelow and McHenry, and say
that If this court cannot call those re-
ceiVers to account for their conduct it
Will be without our power to compel
them TO appear il courts within this
state i'll answer to any process, and in
view OF past experience, we are not
willing to appoint as receivers persons
who Will recognize the power OF this
court to control them in the adlninistra-
ton Of their trust"
The motion or the Northern Pacific
Railway company that four receivers,
Messrs, Burleigh, Bigelow, Galloway
and McHenry, be appointed was also
denied. Meanwhile the war Of federal
pCurts Is still on, and Burieigh rules un-
der direction OF this court in the four
states named. The Milwaukee tribunal
is however, recognized in the decision
as the court OF primary administra-
tiCn,
The present action of the Western
Judges Is in effect based on an argu-
ment or the late Judge H. NJ. Herman.
Judge Gilbert wrote the decision. He
takes the position that Justice Fields
order, while making Judge jenkins
court the court Of primary Jurisdiction,
gave this court the right to do what
was necessary to protect creditors and
other affairs in the circuit. To do that
1T is necessary that this court should
nave receiver who was under it and
who would be responsible to it for his
acts. Justice Fields order never pro-
Nided that Jenkins men should be con-
Hrmed as receivers
Judge Herman'S argument maintain
ed that the agreement reached by the
four justices of the supreme court, sit
ting in their circuit. through which the
road ran, was not in the nature of a
supreme court decision, and that Judge
Hanford might stand his ground His
argument apparently touches one phase
or the case not elsewhere discussed
1t is generally conceded that while the
agreement Of the four justices is not
of itself court order, yet each of the
four justices has the power to make
1t so in his own judicial district But
Judge Herman cOntended that for any
of these four justices to override the
former action of a circuit court would
be to assume for himself an appellate
jurisdiction over that court. He says:
In a case in which Justice Harlan and JUS
tice Jackson sat in the circuit court of the
Sixth circuit, those distinguished jurists in a
former opinion held that a circuit court OF
the United States cannot take Jurisdiction OF
a bill whose only purpose is an ancillary re,
ceivershp; that such bill must be dismissed
and an Independent suit commenced in or
der 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 part and parcel
Of the court so appointing them; and the court
had right to know what they were doing
with the property; and it had a right to ask
the receivers to account for all operations per-
formed by them in each jurisdiction.
No one contends that the appointment of a
receiver by one Of the federal Judges in the
Second circuit, namely, New York, could
make that person receiver, by the mere fact
of his appointment in the Seventh, Eighth
courts in said circuits There being no ques-
tion in regard to this proposition, the ap-
pointment of receivers, as declared by the SUI
preme 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
no reason need be given therefor
The trustee and the receivers having vol
UNFAIRLY come into the Ninth circuit and re-
quested and obtained their apontmepnt from
Judge Hanford, he had a right to require
them to account to him for their dongs un
der his appointment. This they refused to do
and rather than account, they rendered theil
designations in order to avoid the account
ing. Their designations were not accepted
and could not be without sanction by the
court of ary irregularities of which they
might have been guilty. Upon their refusal
Judge Hanford removed them, and appoint
ed Mr.. Brrleigh. This within Judge
Hanfords power, he having previously ap
pointed the Oakes receivers.
How the advisory order of the four su
preme judges is to affect this appointment o.
Mr. Burleigh is a matter have been unable
10 discover. No one connected with then
later can for a moment suppose that the foul
judges would undertake to overrule the sol
emn decisions of the supreme court of the
United States; certainly not, sitting as they
were as a mere advisory board and not II
any official capacity. The latest official enun
citation of the supreme court is that 1.-The re
moval or appointment of a receiver rests il
the sound discretion of the court making thu
order and is not revisable here" How this
advisory order is going to affect anything eX
cept the accounting part of the road is
matter which is yet unsolved.
1t would not be very pleasant matter fol
either of the judges recently acting ad
visoIy board to visit the circuits over which
they have been assigned by the supreme cour
TO set aside the order made by the judge:
appointing these receivers There is no ap
pellate jurisdiction conferred upon these ad
/ Visory judges, except by law when they con
stitute a part of the supreme court of the
United States, and the appellate jurisdiction
is vested by the constitution in the supreme
court and not in the members thereof Tht
act of the judges appointing the receivers |,
IF iIIn doc not nf