The Birmingham age-herald., 1907-11-10

eide that question for two reasons: lirsr. neither Judge Jones nor this court has the power to decide it, and second, the question Is not in reality involved in the case at issue. Conceding, therefore, for the purpose of this decision only, that there are two judges of the Northern dis trict of Alabama, each with equal and concurrent authority, we have two ques- tions and two only presented for de- termination in this proceeding. First can one of these district judges sitting in bankruptcy within the Northern dis trict of Alabama, and while the other district judge is absent from the district make a valid and binding appointment of referee in bankruptcy without the concurrence of the other judge? Second, if the judge who is in the district makes such appointment, while the other judge is absent from the district can the ab- sent judge come into the district while the judge making the order is holding court therein, and set aside the appoint ment without notice to and without the concurrence of the other judge?
 The appointment of this petitioner was made under the authority afforded by sections 34 and 37 of the bankruptcy law. That appointment was made without ref erence, or regard to any other referees in bankrutpcty, and was made because the business of the court demanded the appointment. The authority of the court
  confined in number only within the discre- tion of the court itself. This is clear ly authorized by section 37 of the bank ruptcy law, which is as follows
 Such number of referees shall be ap- pointed as may be necessary to assist in expeditiously transacting the bankruptcy business pending in the various courts of bankruptcy"
 Acting under this authority some weeks since, l appointed W. c. McMillian, Esq, referee in bankruptcy at Taladega, and had an order entered reappointlng H. D. MeCarty. Esq, q referee in bankruptcy at Anniston, he being a former appointee of Judge Jones. Although it has been some weeks since those appointments were made they have so far remained unchallenged by Judge Jones upon the grounds as stated in his opinion, that the federal statute confides the appointment of referees to the courts instead of to the judges, and concludes with the final declaration that "the power and author ity are given to the court and not to the judges It is true that the authority is conferred by the bankruptcy law upon the courts and this necessarily brings us to the consideration of the question of what is the court.
 Definition of Court.
 The word court originally meant only a yard, palace or garden and according to Cowell 1t meant "the house where the king remained with his retinue: also the place where justice was adminis- tered.' (Anderson's Law Dctionary) So in early history the court meant the place where the king was domciled, because the king was actually the fountain and dis penser of justice The earlier courts were merely assemblages in the court yard of the baron or of the king himself by those whose duty it was to appear times nr idea of the place predominating as the designation of a court caused Blackstone to adopt Coke's definition that "A court is place where justice is judicially ad- ministered." G Blackstone's Commen- tares 24) Indeed the supreme court of Alabama in eX parte Branch & Co.,, 63 Alabama, page 3S4. adopted the defni- ton that a court is "A place where jus tice is administered" This definition has been held to be too narrow, and the definition given by a majority of judicial decisions is, that "A court is a tribunal duly constituted and present at the time and place fixed by law for judicial investi- gation and determination of controver- sies." Century Dictionary. volume 2, page 1912, and Sth A. and E. Encyc. of Law page 22.) court is also held to be An incorporeal being, which requires for its existence the presence of the judge"
 Eight A. and E. Encyc. of Law, page 2. State vs. Judges. 32. La. Ann. 1261 Lawyers Tax Cases, 8 Ieisk. (Tenn.) 650 Mason vs. Woerner IS Mo. 570. Hobart vs. Hobart, 4o Iowa. 503. Matter of Terrill 52 Kan. 29 (S c. Am. St. Rep. 327)
 It has been further held that "the court is not the judge or judges as in- dividuals, but only when at the proper time and place they exercise judicial powers"
 Court and Judge.
 l fail to find a single case or authority wherein the judge is held to be the court. or part of the court, while absent from the territory prescribed by law within which the court is required to be held. A statement of the law in question is tersely made and discussed by the late Chief Justice Brickell in the case of Branch X Co.,, supra. The bankruptcy act itself defines, in section 1 thereof, what is meant by. the word "court'' in the following language: Court shall mean the court of bankruptcy, in which the proceedings are pending and may in- clude the referee" At the time I ap- pointed this petitioner were the proceed ings pending in Huntsville in the North ern district. or were they pending in the Middle distrcit, where Judge Jones was. in fact, at that time? Was 1t intended by Congress that the court of bankruptcy should be divided court with one judge sitting in one district and another judge sitting at the same time without the district? Does the court follow the judge. or does the judge follow the court? If the court follows the judge, and two judges are sitting at the same time in .lxf 4 -Arto xxr1,tn jttle ha