The Birmingham age-herald., 1908-08-07
JONES AGAIN ACTS IN REFEREE MATTER Renders Long Opinion Setting
 Forth Contention EXPLAINS HIS AUTHORITY Maintains That Whole Question De- bends on Whether There Are One
 Or Two Judges For North
 ern District.
EXPLAINS HIS AUTHORITY

 "growing out of a mere administrative matter, as to which both we, (Judge Jones and Judge Hundley) have joint auth ority, in the appointment of a referee at Birmingham, justifies the filing of a more extended opinion than h eretofore given as to the law which governs the case" Judge Thomas G. Jones has filed a lengthy opinion in the case involving the appointment of a referee in bankruptcy at Birmingham a copy of which was received by Nal Charles J. Allison. clerk of the United States court here, yesterday.
 The opinion is another chapter in the controversy between Judge Jones and Judge 0. R. Hundley. Three times has Judge Jones appointed Alex c. Birch referee in bankruptcy and each time Judge Hundley has busted him in favor of N. L. Steele. Out of this matter grew the dispute, which. by the way, has been carried to the United States court of appeals of the Fifth district.
 Judge Jones explains his authority and action in the matter as follows;
 'If my colleague be the sole district judge of the Northern district, there can be no room for disputation here. If. however, there be two judges they have equal, and in some matters, joint right and authority, and each judge IS legally and morally bound to respect the rights of the other. My colleague declares any expression Of opinion here upon that question would be more dictum.' No known definition of dic- tum supports that view. Wheth CT there be one or two judges of the Northern district Is the question that lies at the very threshold of the case. No Judg- ments can be rendered as to the legal jty of the appointments and removals here at issue, without first ascertain ing what judges had a right to parti- cipate in the making of those orders, and any judgment as to their validity or invalidty inevitably involves con clusion and judgment on that point Both opinions in ex parte Steele pro ceed on the hypothesis that there are two district judges of the North ern dis trict.
 .sThe power of appointment in this case Is joint power relating to an administrative matter, which can only be exercised lawfully with the consent of the majority of those in whom the power is reposed. The physical power of a single judge while holding court alone to enter orders at will does not carry with it the legal right to usurp the power of the absent judge. On direct attack at least, the courts or ders as to the appointment or removal of an officer are illegal, when 1t is participated in the act, contrary to tho will of the other judge, who was will ing and able to act.
 "The rightfulness or legality of such an appointment or removal made by district judge when sitting alone, against the wishes of the circuit judges could not be excused or justified on any legal theory that the physical power of the district judge at such time to usurp the legal prerogative which the law vests in the other judges. carried with the legal power to do so. When a court is held to make an ap- pointment, all the judges having right to participate must have notice and opportunity to attend and vote. Otherwise the appointment will be in valid, and when made by a court pre- sided over by only one of two judges who disregards the wishes of the other the appointment is a nullity, since there was no quorum to act upon the matter. -
 "The paramount question is, how ever, whether there are two district judges or only one for the Northern district. To properly answer this ques- tion requires an examination of the prior laws constituting courtg and judges of the Northern district, the terms of the later law providing for the appointment of "a judge for the Northern district and if the language of the statute leaves the intent in doubt, to consider the evil wh ich called forth the later statute, and what con struction best remedies the evil it was designed to cure"