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

made. the learned judge handed down a written opinion. in which he said;
 Where there are more district Judges than one in a district, which is fre- quently the case, the majority of the judges constitute the court, and they alone have authority to speak for the court in the matter of the appointment of a permanent officer of the court though, when one judge Is absent and noth ing is said in the minutes as to the wishes of the other, it is legally presumed that the order speak the will of both.
 "One judge cannot make an appoint ment unless he Is the sole judge Of the district. If there be another judge, as is the case here. where both are of equal authority. and neither judge Is an associate judge-one judge cannot, without the consent of the other judge, properly make an appointment to which his colleague objects and thus, in a collateral way, attack the author ity of his colleague.
 "The judge whose Jurisdiction thus attacked must by silence and in- action waive or abandon his jurisdic- tion in the district or defend it, and 1t seems to me that the most proper way to deal with the revoked order is to pursue the course which has been taken"
 Regardles sof the conclusions reached in this opinion, and applying-in thls particular case, and only in so far as this particular case is concerned-this dellverance of the learned judge him self, if for no other reason, l am justified in revoking and annulling ths alleged order or orders appointing Alex c. Birch a referee in bankruptcy of this court. Adopting the language of the learned judge expressed in that same opinion:
 Each judge must act upon his own convictions of the law. NO fault can be found with either in this respect"
 With the exception of a short term of court held by me In the state # Florida, have been almost continu- ously upon the bench in this district since my appointment and quaufiea- ton on the 10th day of April, 1907. The learned judge has not held court single day in this district during that time, nor has he tried a single case Ills only presence in the district was to order the removal of Nenian L. Steele, Esquire, a referee In bank ruptey appointed by me, AS set forth aDOVe, ana 10 attempt Io Illdhe liiS aP pointment of Alex C. Birch as referee by entering the orders complained )f in this petition. On assuming the duties of my office, found the dockets of every division of my district great ly crowded, and, save in the Southern division, l have, by persistent Work, succeeded in catching up with the busl- ness of the court in all its branches. The business of the court of bank ruptcy in the southern division of this district is large and important. The referee in bankruptcy, under the bank ruptcy law, may be part of the court itself. In order therefore, properly and promptly to dispose of this large amount of important business, it is absolutely essential that the referee should not be a person hostile or of fensive in any way to the court. It s also essential to the orderly and speedy transaction of the business of the court that the orders made by me shall re- main as made. If the learned judge can leave his district and court and come into my district. as may suit his purpose or desire, and change, without my Knowledge or consent, orders and rules in bankruptcy made by me, then the public business will be seriously disturbed; and I cannot and shall not
 
 be done, when my attention Is directed thereto in due form. If the learned judge is permitted by me to come with : in my district and make an order. which requires one-half of the bank ruptcy cases to be referred by the clerk of my court to such person as may suit his fancy, and that too even when am in the division, which order is in direct conflict with the very letter of section IS of the bankruptcy law then I must confess myself utterly i'm potent to discharge the duties which the law imposes upon me. Whether the learned judge Is a judge of this dis trict or not is immaterial as concerns the question here presented. at least, while I am within the district and he is without the district, my decress and orders are supreme, subject only to re- view by an appellate court; and the law confers upon me the power to set aside any orders in bankruptcy made by him in this district, whether they are valid or void.
 The clerk will enter the order, now file, upon the minutes of this court. and he must proceed without delay to refer all such matters as are designated by the order to Nenian l.. Steele, Esquire, the referee in bankruptcy of this court for the Southern division of the Norther district of Alabama; ex- cept when am within this division, when the same will be referred by me- as provided by section IS of the act of Congress establishing a uniform system of bankruptcy throughout the JTnited States.