The Montgomery advertiser., 1908-12-04


 thority by each of the two judges, as condition unusual and one likely to pc detrimental to the public interest esnnot ss influence our decision or extend the condition indicate that Congress would not have intended to confer ju- [isdietl2n on two District Judges in in the Federal Judicial system to have in district several judges of con- current authority in the several Cir sba SSst nn,. courts: and that one of them has m orders of another. but such author ity causes no embarrassing conflict, and is usually exercised in the public trofled by law and judicial courtesy. there cited.
 of legislation in providing for the ap- pointment # judges, and 1t Is argued that the failure of Congress to use the words, %an additional judge" shows should be the only judge of the North ern Dlstrict. Several of such statutes are cited, and the following Is quoted as 8 sample of such lsgislation: ., be in the district of Minnesota an ad- dittonal District Judge, who shall be appointed by the President. by and with tions and have the same power and Jnrlsdiction now prescribed by law in fSsPPefa fSPsfSs so shs stIf pressRt District Judge
 Not Pertinent.
 ..It is apparent that the statutes referred to were not intended to meet a ease like the one provided for by the act in question here. The judge gnestion was to be a judge. of a named district only, when the existing judge Tn that district was judge also of an- 3 oener district: The fact may. account show why the form of the acts referred to could not be we'll followed To pro- vloe that second judge was to pos now prescribed by law in respect to inc present District Judge therein might be construed to extend the Jurisdiction of the second judge to both the dis- risdiction. Instead. therefore, of re- ferring to the Jurisdiction of the first judge as the measure of the authority oe peeerens sne second judge; there Is a general Judges in their districts. We cannot as- sent to the view that the peculiar lan- guage of the bill was used with the studied purpose of excluding the first judge from the northern district when that could have been otherwise ac- complished with more brevity and clearness. The formula of the act Of @AN9A0t %B AccUt COufu nave been used, confining the first judge and his sue cessors to the middle district; or, the second judge could have been named as the sole judge of the northern dis trict. It Is true. on the other hand, that the use of the words, "an addi- ttonal judge" would have made the meaning plainer. But we must remem- Der that the burden of showing the repeal Is on the respondent.
 There was existing a statue giving the first ilIdRa Hfarfedir4snu In ha northern district, and words of ex- clusion are required to effect the re- peal or withdrawal of that jurisdic tion. As no such words are used. and as there Is no irreconcilable conflict, there can be no repeal unless the later statute covers the whole ground oc- cupied by the earlier statute and is clearly intended as a substitute. for R. Co. vs. B. and A. R. R. Co. 102 Mass. 386 "a later statute, contain ing provisions, though merely affirma- tive In form plainly repugnant to those of a former statute. repeals it as absolutely as by a negative clause" If 1t were the law that there could be but one district judge of a Judicial district. 1t might be successfully con- tended that the lawful appointment Of a second judge excluded the first judge. In that case. only one judge being possible, two statutes, each pro- vidIng for one judge, would be in con fliet. and the last statute would re- peal the first It would cover the whole ground, for only one judge could stand on It. But when 1t is con ceded that a second judge may be. and frequently Is. provided for, it follows that the statute merely providing for the appointment of the second judge is not necessarily a substitute for the statute which provided for the ap- pointment of the first. As there may lawfully be two judges. 1t takes some thing more than a provision for the