United States v. Dietrich

• Citation: 126 F. 659
• Parties: UNITED STATES V. DIETRICH.
• Decision Date: 04 January 1904
• Court: U.S. District Court — District of Nebraska

126 F. 659

UNITED STATES V. DIETRICH.

United States Circuit Court, D. Nebraska.

January 4, 1904

W. S Summers, U.S. Atty., and S. R. Rush, Asst. U.S. Atty.

John C Cowin and R. A. Batty, for defendant.

Before VAN DEVANTER, Circuit Judge, and MUNGER, District Judge.

VAN DEVANTER, Circuit Judge (after stating the facts as above).

The question of jurisdiction presents itself in every case, and must be answered by the court, whether propounded by counsel or not. In this case the query arises whether, upon the remission of an indictment from the District Court to the Circuit Court under section 1038, the Circuit Court may try and dispose of the case at a then current term, or must defer such proceedings until the term beginning next after the entry of the order of remission. The pendency of several indictments in like situation as this, and the propriety of determining the question in advance of the trial, have caused us to carefully consider it, although not as yet raised by counsel. Section 1038, Rev.St. (U.S.Comp.St. 1901, p. 723), reads:

'Any District Court may, by order entered on its minutes, remit any indictment pending therein to the next session of the Circuit Court for the same district, when, in the opinion of such District Court, difficult and important questions of law are involved in the case; and thereupon the proceedings in such case shall be the same in the Circuit Court as if such indictment had been originally found and presented therein.'

The query stated will be answered or resolved by ascertaining the true meaning of the word 'session' as here used. It does not have a single fixed and definite meaning, but is variously used in statutes and constitutions. As applied to courts, the senses in which it is used are illustrated by Drew v. Judges, 3 Hen.& M. (Va.) 1, 3 Am.Dec. 639 645; Lipari v. State, 19 Tex.App. 431; In re Gannon, 69 Cal. 541, 545, 11 P. 240; Falltrick v. Sullivan, 119 Cal. 613, 619, 51 P. 947; Bryan v. Pinney (Ariz.) 17 Pac.97; Mansfield v. Mutual, etc., Ins. Co., 63 Conn. 579, 29 A. 137; Commonwealth v. Gove, 151 Mass. 392, 24 N.E. 211; MacNaughton v. South, etc., Co. (C.C.) 19 F. 881; Stefani v. State (Ind.) 24 N.E. 254; McMullan v. United states, 146 U.S. 360, 13 Sup.Ct. 127, 36 L.Ed. 1007; United States v. Pitman, 147 U.S. 669, 13 Sup.Ct. 425, 37 L.Ed. 324. As applied to legislative bodies and other assemblies, the senses in which it is used are illustrated by People v. Auditor, 64 Ill. 82, 87; Williams v. Nashville, 89 Tenn. 494, 15 S.W. 364; People v. Fancher, 50 N.Y. 288, 294; John V. Farwell Co. v. Matheis (C.C.) 48 F. 363; Ravenscraft v. Comm'rs (Idaho) 47 P. 942; Heim v. Brammer (Ind. Sup.) 44 N.E. 638. These cases show that the word is sometimes employed to indicate an actual sitting of a court, legislative body, or other assembly, not interrupted by adjournment; that at other times it is employed to indicate an actual sitting continued by adjournments in ordinary course from day to day, or over Sundays and holidays, but not interrupted by adjournment to a distant day; and that at still other times it is employed as the equivalent of 'term'-- that is to indicate the entire period intervening between the convening of a tribunal or assembly and its final adjournment. The true meaning is ascertained in each instance by reference to the context and the object of the statutory or constitutional provision under consideration.

Lexicographers ascribe to the word the same variety of meaning. The definition given in Abbott's Law Dictionary is:

'A sitting; sometimes used for the time during which any body of persons or tribunal is organized, competent for transaction of its business; in other connections, the time during which it is convened and actually engaged in business. * * * In respect to courts, where 'term' takes the place of 'session' to express the period during which the tribunal is organized and competent for transaction of business, the double meaning of 'session' is less noticeable. It generally imports an actual sitting, but not necessarily; it may be used as equivalent to term.' Black's Law Dictionary gives this definition:

'The sitting of a court, legislature, council, commission, etc., for the transaction of its proper business. Hence, the period of time, within any one day, during which such body is assembled in form, and engaged in the transaction of business, or in a more extended sense, the whole space of time from its first assembling to its prorogation or adjournment sine die.'

Burrill says:

'The sitting of a court; the sitting of justices or judges in court; the time during which a court is held. Frequently used in the plural, 'sessions,' like the word 'sittings."

Bouvier says:

'The time during which a legislative body, a court, or other assembly, sits for the transaction of business; as, a session of Congress, which commences on the day appointed by the Constitution, and ends when Congress finally adjourns before the commencement of the next session; the session of a court, which commences at the day appointed by law, and ends when the court finally rises. A term.'

The Encyclopaedia of Pleading and Practice, vol. 21, pp. 599, 560, says:

'A term of court is a definite and fixed time or season of the year prescribed and set apart for the dispatch of judicial business.

'A session of court is the time during a term in which the court sits for the transaction of business.'

The Century Dictionary includes the following among the word's meanings:

'(2) The sitting together of a body of individuals for the transaction of business; the sitting of a court, academic body, council, legislature, etc., or the actual assembly of the members of these or any similar body for the transaction of business; as, the court is now in session (that is, the members are assembled for business).

'(3) The time, space, or term during which a court, council, legislature, or the like meets daily for business, or transacts business regularly without breaking up. Thus, a session of the legislature commonly means the period from its assembling to its adjournment for the year or season, in contradistinction to its daily sessions during that period. * * * The session of a judicial court is called a 'term."

In McMullan v. United States, supra, it is said by Mr. Justice Harlan, speaking for the court:

'When the court is open by its own order for the transaction of business, it is in session within the meaning of this section (Rev.St. § 829 (U.S.Comp.St. 1901, p. 636). If the court by its own order is closed for all purposes of business for an entire day or for any given number of days, it is not in session on that day or during those days, although the current term has not expired.'

Enough has been said to make it clear that, depending upon the application of established rules of interpretation, the next session of the Circuit Court, within the contemplation of section 1038, is either the actual sitting of that court for the transaction of business occurring next after the entry of the order of remission, or the term of that court beginning next after the entry of that order. Generally, two terms of the Circuit Court are provided for in each district, but in some instances Congress has provided for more than two terms or for only one. There has long been a general practice to substantially continue or prolong each term until the beginning of the next. This is accomplished by adjournments in ordinary course from day to day, or over Sundays and holidays, so long as the prompt, orderly, and convenient dispatch of the business of the court suggests that course, and by...