The Birmingham age-herald., 1908-06-09
BIRCH REMOVED BY JUDGE HUNDLEY New Order Entered In the Now
 Famous Case SPECIAL TERM YESTERDAY Judge Hundley Delivers a Long Oral Opinion, Setting Forth Position
 and Reasons for the
 Action Taken.


 from the position of referee in bank raptcy The matter, which has for s0ine tune been the center of much attention, Was brought up yesterday m the form of petition filed by Referees ill Bank ruptcy Nathan L. Steele by Sterling A. Wood. attorney for Mr. Steele. formally presenting the petition to the court. The matter was taken up at a special term of the United States district court yes- terday morning at 10 o'clock, and aftec hearing the petition Judge Oscar R. Hund- ley issued an order removing Mr. Birch, who was appointed referee in bankruptcy on last Monday, June 1, by United States Judge Thomas G. Jones'
 Judge Hundley's opinion was an oral one. 1t follows in full:
 In the District Court of the United
 States, Northern District of Alabama
 Southern Divislon.-l1x parte Nanlan l.. Steele petitioner. In the Court of Bank ruptcy.-In the matter of the petition of Nenian l.. Steele, a referee in bank ruptcy.-Sterlipg A. Wood attorney for petitioner.
 Hundley, district judge. This Is sworn petition filed in this court by Nen- ian l.. Steele, Esq, a referee in bank ruptcy heretofore appointed by this court, calling attention to the fact that the clerk of this court is proceeding, or is | about to proceed, to refer one-hali of the eases in bankruptcy filed in this court to Alex C. Birch, under and by vir- tue of what purports to be an order of this court appointing said Birch a referee in bankruptcy and directing the clerk of this court to make such reference to said Birch. The fact that such purported order orders were made by Hon. .lt1 judge, claiming to be a judge of this court, necessarily surrounds the questions presented with some embarra ssment not generally arising in courts of justice whe.. called upon to modify revise or reverse 1 the decisions of other judges or courts. More especially is this the case when the matter has reference to an officer of a l court, for whose conduct the judge Is at least morally responsible. However this | may be, the constitution and laws of the | United States necessarily place the re- | sponslbllty to act upon all judges, to whom parties feeling aggreVed have right by law to apply, l cannot under my oath of office decline to assume the responsibility. which the law places upon me- 1 cannot delegate my Jurisdiction to any other judge. l cannot, with due re- l spect to the office which l hold, decline l to act when it Is my duty to act; nor 1 can l yield this duty to others, however | eminent they may be- The law defines ! my jurisdictions the law defines my right and authority; and the law alone shall be the beacon to guide my footsteps in | seeking rightfully to determine this mat ter. No consequences personal to myself, either of public or private criticism, shall swerve me from my line of duty in this or in any other matter.
 As shown by the facts stated in the pe- tition. an effort is made by the learned judge to create another referee in bank ruptcy in this court, without the knowl- edge or concurrence of the court itself. This is sought to be done first by an order purporting to have been made while that learned judge was holding court in another district, and second by filing that order thus purporting to have been made, in this district on Sunday night May S1. and then finally. by enter
 ing an order about 8 o'clock, Mondlr morning, June l. ratifying the making of the previous order in another district. These various efforts at perfecting the appointment of a referee and designating the manner in which theb uslness of this court shall be referred to him. were all made or attempted to be made. at a time when the judge of this court was engaged in holding regular term of this court in another division of this district and at a time fixed by law.
 It is unnecessary. so far as the decision of the questions presented by this peti- ton Is concerned, to pass upon the ques- tion of whether or not the learned judge making the orders above referred to- S still q judge of this district. It is un- necessary to decide whether the act of Congress, creating a judge for the North ern District of Alabama and designatins his place of residence as the city of Birmingham in said district. makes h'n the sole judge of this court or not.
 Former Decision.
 The principle in this case is not ma terially different from the case Tn 70 Steele.' reported in 156 Federal Reporter, page S53. The opinion in that case was rendered by the judge of this court on the 9th day of November. 1907. and has remained to this day the law of the case. so far as this district is concerned. That decision has not been overruled ques- toned denied or modified by any judi cial authority. In that case. it was dc cided that the court of banl t'uptcy is not a migratory court with one judge sitting in one place and another judge sitting in another place, but is court, whose domicile and territorial limits are fixed by law. and that both time and place are essential constituents of the organl- zation of such court and further, that in order to constitute such court the of fcer must be present at the time and place appointed by law. It was also heid that any order made by the learned judge. while Holding h's court in the middle district, was coram non judice and absolutely void. insofar as it's bind ing effect upon this court is concerned
 It is evident from reading the order made on the first day of June in tha city of Birmingham that an attempt s made therein to relieve the order made by the learned judge on May 30 from an applica tion of the rule of law settled rnd decided in the Steele case. supra. The act of the learned judge in converting court and entering tho order June l. while the judge of this court was en- gagged in holding q regular tern of ,his court in another 1iv.s ,n hC .his dis