The Birmingham age-herald. [volume] (Birmingham, Ala.) 1902-1950, 1908-12-02
Birch Petition Is Dismissed In
New Orleans
HARMONY RESTS ON JUDGES
Judge Shelby Renders Opinion That
Jones and Hundley Have Concur
rent Jurisdiction In Northern
Alabama District

New Orleans. December 1.-(speeiaL)-
The controversy between Judge Thomas
c. Jones and Judge Oscar r. Hundley
with respect to the appointment of ref
cree in bankruptcy at Birmingham In
volving the question of the jurisdiction
of these judges and the authority of
Judge Jones to act as a court of bank
ruptcy in the Northern district of Ala
bama, has been determined by an opinion
rendered here today by Circuit Judge
David d. Shelby. speaking for the United
States circuit court of appeals.
The court decides first, that the statute
making the judge of the Middle district
also judge of the Northern district is still
in force and Judges Jones and Humid
ley have concurrent jurisdiction in the
Northern district.
Second the bankruptcy act does not re-
quire concurrent action by both judges
to make valid orders appointing or re-
moving referees.
Third, That this court has no jurisdic-
ton to revise action of court of bank
ruptcy appointing or removing referees,
-
Birch seeking revocation of Judge Humid
leys order annullng the order of Judge
Jones appointing him referee is dismissed.
The clash of jurisdiction between the
two federal judges in Alabama is unique,
and seems to be the outgrowth of diff
ferent constructions placed by them upon
the act of Congress under which Judge
Hundley was appointed
The dispute in the case just decided had
its origin in the appointment by Judge
Jones on June l this year OF Alexander
C. Birch as referee in bankruptcy FOR
the Southern division of the Northern dis
trict of Alabama, with directions for the
assignment to him of one-half of the
bankruptcy cases on the Birmingham
docket. Nenian L. Steele. who had been
previously appointed a referee in bank
ruptcy by Judge Hundley for the same
district and who was serving as such at
the time, made an application to Judge
Hundley to revoke the order of Judge
Jones appointing Birch. and on June
Judge Hundley entered such an order
holding that the action of Judge Jones
was without authority, force or effect.
Questions at Issue.
The questions at issue were presented
to the court of appeals by the petition of
facts of the controversy and sought a
revocation Of the order of Judge Humid
ley revoking the order of Judge Jones.
Shortly thereafter Nenian l.. Steele the
respondent, moved to dismiss the petition
of Alexander C. Birch, alleging that the
court had no jurisdiction to superintend
and revise such matters and was without
authority to grant the relief prayed for.
The case was ably argued by counsel for
the respective parties during the recent
term at Montgomery, and was submitted
on the merits and the motion to dismiss
The material questions involved are
stated at the outset by the court to be:
o. Is the statute making the judge of
the Middle district also Judge of the
Northern district still in force? e. Does
the bankruptcy act of 1896 require the
concurrent action of both judges to make
valid orders appointing and removing ref
erees? g. On the facts stated in the
petition should this court superintend and
revise the action of the court of bank
ruptcy in the appointment and removal
of referees?
1. BY the act of August Z, 1s4S. Alabama
was divided into three districts, the
Southern, Middle and Northern, which
were presided over by one judge till Au-
gust 2, 1886, at which time Judge Toul-
min was appointed judge OF the Southern
district. and the jurisdiction of Judge
Bruce was expressly confined to the
Northern and Middle districts. Upon the
death of Judge Bruce. Hon Thomas G..
Jones was on December 20, 1901 appointed
his successor. On February Is. 1907 an
act was passed by Congress providing for
the appointment of district Judge for
the Northern judicial district of Ala
bama, but containing no repeating clause
of any kind affecting the Jurisdiction OF
Judge Jones. Under this act, Hon. Oscar
r. Hundley was appointed a district
Judge on April 10, 1907 Judge Hundley
questioned the authority OF Judge Jones
to act as a Judge in the Northern dis
trict, holding. in effect, that he alone con-
stituted the "court of bankruptcy" in that
district and had the power to appoint ref
rees in bankruptcy therein that, by inn
plication. the act under which he was
appointed Judge confined the Jurisdiction
of Judge Jones to the Middle district. In
discussing this point the court says: 'It
has been often said by the supreme court
that repeals by implication are not fav-
ored. and it is the unquestioned rule that
1T It he possible to reconcile two statutes,
one will not be held to repeal the other"
The later statute does not repeal the for
mer "unless the two acts are in irrecon-
cllable conflict or unless the later statute
covers the whole ground occupied by
the earlier and is clearly intended
a substitute for it, and the intention OF
the legislature to repeal must be clear
and manifest" Red Rock VS.. Henry 106
U. 5. Sol. repeal by necessary implicaA
ton does not occur when the provisions
Of both statutes can stand together, as
they may do in this case Neither do the
statutes become irreconcilable unless that
is assumed. which is not true. that
there cannot be two judges of
CONTINUED ON PAGE 81