The Birmingham age-herald., 1908-06-29

that the bankruptcy law also provided
 for only one judge of the bankruptcy
 court in each judicial district. A differ ent construction from this might be made
 perhaps in districts where there is ere
 ated "an additional judge" required to
 possess "the same powers and perform
 the same duties and receive the same
 salary as the present district judge of
 said district" as is the case in five of the
 judicial districts In the United States;
 but upon thls question l express no opin- ion. Such, however, is not the case here,
 where the powers and duties of the judge
 of this court are not limited to the powers
 and duties conferred upon any other judge
 in this district, but are coequal and CO., existent with those of 'the judges of the
 district courts of the United States Act of February 25. 1907 supra. Hence
 the power of the judge of this court Of
 bankruptcy must be coequal and eoexist-
 ent with the powers and duties Of the
 judges created under the general pro-
 vision, under which "a district judge IS
 appointed for each district" Fed. Stat
 Ann. D. 216 supra In so far as the
 district courts of the United States are
 referred to in the bankruptcy law, it is
 plain that not alone Is there created one
 court of bankrupty, and one only, for
 each district but there is only one judge
 provided for each district. The court of
 bankruptcy is frequently mentioned in
 the law, and so is the judge, and with
 out exception where ever judge is re-
 ferred to, it is always as "the judge
 The singular noun Is used, and never the
 plural Under Chapter " of the Act,
 which is devoted to "courts and court procedure" it is provided, Q) that the
 judge" shall direct the process; CD, the
 judge" shall determine the issues pre-
 sented by the pleadings; C) the judge
 shall make the adjudication or dismiss
 the petition; (4) "the judge shall refer the
 case to the referee unless he is absent from the district or the division in which
 the petition is pending; (5) "the judge may cause the trustee to proceed With the administration of the estatei ana so
 on throughout the whole act, wherever It Is necessary to refer to the judge of the
 court of bankruptcy. Clearly, if It were
 intended that there should be more than one judge of the court of bankruptcy. reference would have been made to any of the judges" or "the judges rather
 than the judge" Or, if 1t were the intention of Congress to confer jurisdfc-
 ton in certain cases upon more than one , judge, the statutes would have read "the judge or judges"
 The first alleged order made by the
 learned judge, appointing Birch referee, was made dl hOnlBOHl fAid',
 In the Middle judicial district while the learned judge was presiding as
 judge of the court of that district, and while the judge of this court was pre- siding in the Northern district. In 50 far therefore as concerns the queS- ton here presented, 1t Is immaterial l whether there is one or two Judges or
 the bankrupt court for the North ern
 district of Alabama. It may be ad- mitted then for the purposes of this decision, that the court is composed of two judges with equal Jurisdiction and authority. As above stated, the
 territorial limits of the court of bank 1 ruptcy are strictly defined by the statute whenever reference Is made l thereto. The limits are also strictly defined with relation to the appoint
 ment of referees. Section 34 of the 1 act of Congress relating to bankruptcy provides as follows
 Section 34. Courts of bankruptcy
 shall within the territorial limits of
 which they respectively have jurisdic-
 tion, CD appoint referees, and
 may in their discretion, remove them because their services are not needed or | for other cause"
 It is too plain to require argument, that the "court' must appoint the
 referee, and not "the judge" This was
 admitted by the learned judge himself
 at the time he made the alleged order ] removing Referee Steele from office In November last It was decided in the Steele case, supra, that time and place is an essential element of all courts, and more especially is this the case where the territorial limits of the court
 are prescribed by statute, as is the case here. Can 1t be contended serious l ly, that, while holding the court of the Middle district in Montgomery, the learned judge was, either in fact or in law, the court of bankruptcy for the Northern district? Says the court in ex parte Gardner, 39 Pac 570, 22 Nev. 2S0, "A judge alone does not consti- ute a court. Proceedings at another time or place or in another manner than specified by law, though in the personal presence and under the direc-
 ton of the judge, are coram non judice and void." In the case of Johnston ys.
 Hunter, 50 W. Va. 52, 40 s. E. AS, l. is held that, 'sthe proceedings of court
 at a time and place other than that prescribed by law are void. It is not the act of a court at all." See also on this point White County Commission
 CTS vs. Gwin, 36 N. b. 237-242, l36 Ind. | 562, 22 L. R. A. 402, and In re Steele, 156 Fed. S53. In the case of People
 
 75, 1t was held, that "a court is d
 tribunal organized according to law, and sitting at fixed times and places for the administration of justice, not
 an individual holding judicial of | flee"
 Again, the bankruptcy law tsectlon l. subdivision ID prescribes that, !" Court shall mean the court of bankruptcy l in which the proceedings are pending" Were the proceedings pending in the Northern district, where the judge of this court was holding at the time
 regular term of this court, or were
 they pending in the Middle district? If they were pending in the Middle dis trict, then the learned judge was hold 1 ing two courts in different districts at
 one and the same time. By what stat ute, rule of law, or judicial decision can this be sustained or justified? 1 confess I have searched the books in
 vain for an answer. The conclusion,
 therefore, is inevitable, that this order. l or alleged order, complained of was l absolutely void. But it may be con-
 tended, that the filing of this order, or
 alleged order, with the clerk of the 1 court for the Northern district of Ala l bama on Sunday night gave life and | legal effect thereto. The mere filing 1 of a paper cannot add life or validity ], to a void and illegal act To hold otherwise, would be to clothe the clerk who filed it with judicial power.
 | I now come to the consideration If l the furhter action of the learned judga 1 in proceeding to the government build ing in the city of Birmingham on the | morning of June 1 at about o'clock,