The Montgomery advertiser., 1908-10-24
aH- "A 4a. COURT HEARS REFEREE CASE Birch-Steele Controversy
 Aired. SID BOWIE OPENED FOR BIRCH Argues Hundley's Appointment of
 Steele Is Null. Declare. Rundiey Did Not Take oath of oaiee At Adjournment of |: Congress--Continued

first consulting or notifying the other judge" Sid Bowie. Friday morning opened the case of Alexander c. Bir"n vs u. l. Steele in the matter of the disputed office of Referee in Bankrupt cy in the court of the United States Tn the Northern District of Alaabma.
 The hearing of this case involved dispute followed closely by the public of Birmingham and Montgomery espe- cially, and its hearing announced Tor Friday morning brought an interesteh audience to the Federal chambers. But one attorney was heard Tn arsun Friday. the court continuing the near ing until Il o'clock this morning. when counsel for the opposing side will De given opportunity.
 MT. Bowie stated in opening the ma tarial facts in the case briefly. He said that on May 30 the events In the case at issue began. On that date Con gress adjourned. it being stated in inc record that the adjournment took place at ll:50 o'clock, which corresponds to i0:50 o'clock central time. the time on which Montgomery and Birmingham are scheduled.
 Until May 30. Hon. o. T. Hundley was a judge of the Northern District of Alabama for the United States. but his continuance in that office was subject to the approval of Congress. At the
  Congress had not confirmed Judge Hundley's appointment to the office. therefore ct 1050 o'clock central time Hundley ceased to be a judge.
 MT. Bowie stated that opposing cour- sel insisted that Hundley was reap pointed immediately on the adjourn ment of Congress. but the records show that at TAO o'clock on June 1 he had not accepted the office by any formal act. In order that he might hold the office such formal action was neces- sary in the taking of the oath ot of- ice. and -four contention is that ne was not a judge until such oath of of flee as Is prescribed by statute had been taken. That he was not judge from the time of adjournment of Con gress until that time when he did take such oath of office"
 Judges Are Equal.
 On the assumption that Judge Jones was equal and coordinate in power and authority in the Northern District with Judge Hundlcy. in t.:e interim be- tween the adjournment of Congress and the taking of. the formal oath of ot- | flee by Judge Hundley, Judge Jones was the only judge of the district, and this fact is of the highest material evidence, | S.. Mir. Bowie.
 Now, If Judge Jones was the only judge. the fact is undisputed by the record that he appointed Alexander c. Birch as the Referee in Bankruptcy Tn the Northern District of Alabama. "On the Sth day of June. Judge Hundley. on hts own motion. without notice to Judge Jones. or without his presence vacated the appointment of l Alexander c. Birch and vacated an- | other of Judge Jones's orders directing a division of the cases In bankruptcy. 30 that one half of such cases should go to Alexander c. Birch and the other half to N. L. Steele.
 ''The question we present for review | is: First: are we correct in the as- sumption that Hundley did not become a judge until he filed his oath of of- flee? Second. can a judge in a district where two exercise the power and au- thority. appoint" Referee or remove him without notice or the pre5' ence of the equal judge,
 | "It required the oath of office to make Hundley a judge of the district, and I base this statement upon the statute which l will read to the court. Judge Jones states that the appointment was made of Alexander c. Birch after the adjournment of Congress on May 30, while the opposing counsel state that he was not, but that he was appointed at time when there were two judges in the Northern District of Alabama having equal power and authority. | Judge Jones states that the appoint ment took place after the adjourn ment of Congress. on his oath. and It Is so In the record.
 The power to remove a Referee in l Bankruptcy Is expressed in the same paragraph Id sentence as is the power to appoint. The Court of Bankruptcy 1 appoints the Referee and removes him whenever there Is sufficient cause. The appointment In question was made by one judge and the removal was made by another when there were two judges in the district with equal power and authority; when one of the judges was not present and who objected to the removal of the Referee. Judge Jones and Judge TIundley were the 1 Court of Bankruptcy on June S. and i the proposition is, can one judge do a thing without the consent or the pres euce of the other judge of equal power and authority7"
 Read Authorities.
 In support of his position Mir Bowie read authorities from the English courts, notably Lord Campbell and Lord Brougham as well as New York decisions In the matter. One Louisiana decision was also read to the court. In all of these 1t was pointed out that when the power as divided among many, action could not be taken with out the presence or the notice to the others having power In the matter.
 There is a universal principle. D said MT Bowie, that unless there is a paramount necessity. others of equal mower and authority must be given an opportunity to vote upon the matter under consideration. Two judges f equal power and dignity must consult each other whether they want to do so or not If they don't, the action of one without the presence and with the op- posltIon of express q opinion of the other, an order is a nullity; and in the case of Hundley his action Is a nullity.'
 'This ia case where court has the no, 9 appoint. Argument IS made t { appointment was made for Bir .am in the Northern Dis. trlct W Judge Jones was in the ter. ritory O. the Middle District and 1t is argued that the judge must be physlc. aliv in the territory affected by the appointment. JEdge Jones states thai inc order issued was a chambers order S+s+es disposes of this matter conclu. s,yely The judges chambers ar, s-berever he chooses to make them.
 can one judge of equal power anC authority with another appoint or re r,ove from office, officers of the court U,tthout first consulting or notifyinG tbA other judge? lou are called upor to exercise no new Jurisprudence bu one which comes well within the pow ar of this court The courts of New l york did not hesitate in the matter