Birch v. Steele

• Decision Date: 01 December 1908
• Docket Number: 1,869.
• Citation: 165 F. 577
• Parties: BIRCH v. STEELE.
• Court: U.S. Court of Appeals — Fifth Circuit

165 F. 577

BIRCH v. STEELE.

No. 1,869.

United States Court of Appeals, Fifth Circuit.

December 1, 1908

The averments of the petition are as follows:

'(1) Your petitioner avers that on, to wit, the 20th day of December, 1901, the Honorable Thomas G. Jones was appointed, and shortly thereafter was commissioned and confirmed as a United States District Judge for the Northern and Middle districts of Alabama, and duly qualified as such, and ever since has continued to discharge the duties of such office in both of said districts.

'Your petitioner further shows unto the court that on, to wit the 10th day of April, 1907, the Honorable Oscar R Hundley, while the Senate of the United States was not in session, was given a recess appointment as a judge of the Northern district of Alabama, and was duly commissioned as such judge by the President of the United States under the power and authority given him by an act of Congress providing for the appointment of a judge of the Northern district of Alabama, which act of Congress, in substance, provides that the President, by and with the advice of the Senate, shall appoint a judge for the Northern district of Alabama, who shall have all the qualifications of other federal judges, and all the power and authority of such judges in the Northern district of Alabama, and who shall receive the same remuneration, and who shall reside at Birmingham, Ala.

'Your petitioner further shows that the name of the Honorable Oscar R. Hundley was sent to the Senate of the United States for confirmation as United States District Judge when Congress convened in December, 1907, but that the Senate adjourned sine die on May 30, 1908, without action on the confirmation of such nomination; and that Honorable Oscar R. Hundley is now serving as District Judge under the provisions of the act above referred to, under a second recess appointment, which was made by the President, as petitioner is informed and believes, on the 1st day of June, 1908.

'Your petitioner avers that, as a matter of law, the legal effect of the act of Congress heretofore mentioned was to provide extra judicial force in the Northern district of Alabama by placing in said district a judge with equal and coordinate powers and authority with the then judge of the district, and did not otherwise change the authority and jurisdiction of Honorable Thomas G. Jones as judge of said Northern district of Alabama. Your petitioner avers as matter of law that the said act of Congress does not interfere with the jurisdiction of the District Judge of the Northern district who was serving at the time of its enactment, and that at the present time said District Judge is as much a judge in said Northern district as he was at the time of his qualification as such judge.

'(2) Your petitioner further represents and shows unto this honorable court that on the 30th day of May, 1908, he was duly and regularly appointed by the court of bankruptcy for the Northern district of Alabama as a referee in bankruptcy for the following counties, to wit, Jefferson, Walker, Bibb, Blount, Shelby, Fayette, Lamar, and St. Clair, in said Northern district; which order of appointment was made by the Honorable Thomas G. Jones, United States District Judge for the Northern and Middle districts of Alabama, while sitting as the court of bankruptcy for the Northern district of Alabama, at Montgomery, Ala.

Your petitioner avers that said order of appointment was made on Saturday and was mailed to the clerk of the United States District Court at Birmingham, Ala., and was by said clerk filed on Sunday, May 31, 1908. Petitioner has hereto attached a certified copy of said order of appointment, and prays that the same, as 'Exhibit A,' may be considered as a part of this petition for review, with leave to refer thereto as often as may be necessary.

'Your petitioner avers that at the time said order of appointment was made, the Senate of the United States had adjourned sine die without having confirmed the nomination of the said Honorable Oscar R. Hundley, who, as heretofore shown, was serving as a United States District Judge in the Northern district of Alabama under a recess appointment, and petitioner avers that as matter of law the said Honorable Oscar R. Hundley ceased to be a judge on the adjournment of the Senate without having confirmed his nomination, and that he could not again exercise the functions of his office until he qualified under a second recess appointment, and that the said Honorable Oscar R. Hundley did not qualify under his second recess appointment until June 1, 1908, all of which appears as matter of record in said District Court. Your petitioner avers that his said appointment as referee in bankruptcy was made by the Honorable Thomas G. Jones, United States District Judge for the Northern and Middle districts of Alabama, between the adjournment of Congress on the night of May 30, 1908, and the qualification of Honorable Oscar R. Hundley on June 1, 1908, under his second recess appointment, and that in said interim the Honorable Thomas G. Jones was the sole judge of both the Northern and Middle districts of Alabama, and as such was authorized to hold the court of bankruptcy to make administrative orders to be entered therein anywhere within the bounds of either district. Petitioner avers that courts of bankruptcy do not, under the act of bankruptcy, have any regular terms, and that it is not necessary, in order to give validity to an order made by a judge, that a clerk and marshal be present, or that the same be made in open court, but that the judge may convene the court at any time and anywhere within the territorial bounds of his jurisdiction. Petitioner avers that it has been the unchallenged custom and practice for the judge of the Northern and Middle districts to try and determine any case which could be disposed of without the intervention of a jury, or to make any order irrespective of the fact whether he happened to be in the district in which the litigation arose, provided he was at the time within the bounds of one of the districts. Petitioner avers that this practice has prevailed ever since the creation of the Northern and Middle districts, and that hundreds of thousands of dollars have been involved in cases which have been disposed of under this practice, and that such rule of practice has by long custom and usage become a rule of property.

'(3) Your petitioner further represents and shows unto this honorable court that on, to wit, the 1st day of June, 1908, the said Honorable Thomas G. Jones, being personally present and sitting as the court of bankruptcy of the Northern district of Alabama, at Birmingham, Ala., the court having been formally opened, made and entered an order reaffirming the appointment of your petitioner as a referee in bankruptcy made on the 30th day of May, 1908. The said order above referred to likewise directed the clerk of the District Court for the Northern district of Alabama to refer each odd-numbered case in bankruptcy, filed in the counties in which your petitioner was given jurisdiction, to your petitioner as a referee in bankruptcy. The intent and purpose of said order was to give to your petitioner every other case filed in bankruptcy, the even-numbered cases going to N. L. Steele, who is serving as a referee in bankruptcy in said jurisdiction under an order of appointment made by Honorable Oscar R. Hundley, a District Judge, which order was revoked shortly after the same was made by Honorable Thomas G. Jones, a District Judge, because made without his consent, which order of revocation was afterwards set aside by Honorable Oscar R. Hundley. A copy of the order referring the odd-numbered cases to your petitioner and reaffirming petitioner's appointment is hereto attached, and marked 'Exhibit B,' and prayed to be taken as a part hereof. Petitioner avers that he qualified as a referee in bankruptcy under said appointment by taking the oath of office as required by law, as appears from Exhibit C, and by filing bond in the sum of $2,000, as provided for in said order, which bond was duly approved by the said Honorable Thomas G. Jones, as District Judge, as appears from Exhibit D.

'(4) Your petitioner further represents and shows unto this honorable court that on, to wit, the 8th day of June 1908, N. L. Steele, who is the respondent to this petition for review, filed a petition in the District Court of the United States for the Northern district of Alabama, in bankruptcy, alleging, in substance, that he is a referee in bankruptcy in the same jurisdiction covered by your petitioner's appointment, and that he holds such office under an appointment by Honorable Oscar R. Hundley, United States District Judge, Northern district of Alabama; and that one-half of the cases in bankruptcy filed in said jurisdiction, which otherwise would be referred to him as referee in bankruptcy under a general order of the court, were about to be referred as they were filed to your petitioner by the clerk of the United States District Court, and that such references were to be made to your petitioner under an order of Honorable Thomas G. Jones, 'claiming to be a United States judge in the Northern district of Alabama,' and that the order made by the said Honorable Thomas G. Jones appointing your petitioner a referee in bankruptcy was improvidently made, in that the said Honorable Thomas G. Jones was in the Middle district of Alabama when such order of appointment was made; and that the order reaffirming such appointment and ordering a reference to your petitioner of one-half of the cases to be filed was likewise improvidently made, and that the said Honorable Thomas G. Jones did not have the authority or power to make such order. A certified copy...