The Birmingham age-herald. [volume] (Birmingham, Ala.) 1902-1950, 1908-12-02
JUDGES Ant EQUAL
IN This DISTRlCT
CONTINUED FROM PAGE -

one district There is no word or
phrase that shows an intention by Con-
gress to confine the judge of the Middle
and Southern districts TO the former dis
trict and such words cannot be interpo-
lated by construction. If the later act
had provided for a Judge of the Middle
and Northern districts. or if Judge Jones
| had been Judge only of the Northern
district and the later act had provided
for a judge of the Middle and Northern
districts could it be held that there
was a repeal by Implication? If there was
irreconcilable conflict in one case there
would be in the other.
On April IA, 1906, Congress passed an act
requiring terms of the courts to be held
at Birmingham twice each year and that
the courts should remain in open ses-
sion for the transaction of business at
least six months in each calendar year.
There are three other places in the dis
trict where courts are required to be held
twice year. These and other facts lead
the court 10 conclude that inasmuch as
il Will probably be difficult for the sec
ond judge TO hold all these terms I'M
aied by the first judge ii is quite prob
able that it was the intention Of Congress
in providing a judge for the Northern
district not to dispense with the services
of the first judge, whose entire time may
not be required by the work in the
Middle district.
In Northern District
In commenting on the situation in the
Northern district the court remarks:
THE fact that the exercise of authority
by each of the two judges. as shown by
the record, may have caused a condi-
, ton unusual and one likely to be detri-
mental TO the public interest cannot in
fiuence our decision or extend the
authority of this court. Nor does
the condition indicate that Con-
gress would not have intended to
confer jurisdiction on two district
judges in one district We know that
| ii is usual in the federal judicial sys-
tenn to have in a district several judges
of concurrent authority in the several
circuit courts and that one of them
has the power and authority to vacate
the orders of another but such au-
thority causes no embarrassing conflict
and is usually exercised in the public in
terest and under settled rules controlled
by law ana judicial courtesy. Ide V.
Crosby, 104 Fed. $50, and cases there
cited
While it is true that the use of the
words IAN additional Judge" would have
made the meaning of the act palmer, we
cannot assent to the view that the pc
, cullar language OF the bill was used with
studied purpose of excluding Judge
Jones from the Northern district when
that could have been otherwise aecomp-
| lished with more breVity and clearness.
The formula of the act of August ,, 1886.
could have been used confining Judge
Jones and his Successors to the Middle
district; or Judge Hundley could have
been named as the sole judge of the
Northern district. The burden of showing
the repeal rests upon the respondent
Steele, and applying the rule announced
in Red Rock VS.. Henry. the court holds
that the act under which Judge Hundley
was appointed does not repeal the act
under which Judge Jones was appointed
so as to deprive him of jurisdiction in the
Northern district.
Action BY Court, Not Judges.
= It was csntended by counsel for the
petitioner Alex c. Birch, that it requires
thu concurrent action of both judges TO
exercise the administrative power of APP
pointment of a referee to hold office for a
stat,d period and that the same con-
current action of the two judges is re-
CURED to effect the removal of a referee.
The solution of this question depends
on the construction of the bankruptcy act
of 1898 which provides that courts of
bankruptcy shall appoint referees,
each for a term of two years, and may,
in their discretion, remove them because
their services are not needed or for other
cause" Courts of bankruptcy include
the district courts of the United States.
The constitution confers the power on
Congress to vest the authority to appoint
referees in the courts If the statute had