Fieldcrest Dairies v. City of Chicago

• Decision Date: 15 April 1939
• Docket Number: No. 316.,316.
• Citation: 27 F. Supp. 258
• Parties: FIELDCREST DAIRIES, Inc., v. CITY OF CHICAGO et al.
• Court: U.S. District Court — Northern District of Illinois

27 F. Supp. 258

FIELDCREST DAIRIES, Inc., v. CITY OF CHICAGO et al.

No. 316.

District Court, N. D. Illinois, E. D.

April 15, 1939.

Gariepy & Gariepy, of Chicago, Ill., for plaintiff.

Barnet Hodes, Corp. Counsel, City of Chicago, and Charles P. Horan and Walter V. Schaefer, Asst. Corp. Counsel, City of Chicago, all of Chicago, Ill., for defendants.

WOODWARD, District Judge.

On March 22, 1939 the plaintiff filed a motion in this cause moving the Court for "a change of venue", and with the motion an affidavit of the President of plaintiff corporation was also filed. The Court treats the motion and the affidavit as a disqualifying affidavit filed in attempted compliance with Section 21 of the Judicial Code, 28 U.S.C.A. § 25, which, so far as material, reads as follows: "Whenever a party to any action or proceeding, civil or criminal, shall make and file an affidavit that the judge before whom the action or proceeding is to be tried or heard has a personal bias or prejudice either against him or in favor of any opposite party to the suit, such judge shall proceed no further therein * * *. Every such affidavit shall state the facts and the reasons for the belief that such bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term of the court, or good cause shall be shown for the failure to file it within such time. * * * and no such affidavit shall be filed unless accompanied by a certificate of counsel of record that such affidavit and application are made in good faith."

The principles applicable to an application of this kind are well-settled and, so far as material to this application, may be summarized as follows:

(1) However false, libelous and scurrilous the affidavit and certificate may be, the allegations therein cannot be denied and must be accepted as true.

(2) If in form and substance the affidavit and certificate complied with the statute above quoted and are legally sufficient to give fair support to the charge of bias or prejudice, it is the duty of the judge to retire from the case.

(3) If, on the other hand, the affidavit and certificate are insufficient, it is equally the duty of the judge to proceed.

(4) The attacked judge has the duty to pass upon the sufficiency of the affidavit and certificate.

(5) The affidavit must charge that the judge has a personal bias or prejudice either against affiant or in favor of any opposite party to the suit.

(6) The affidavit must state facts and reasons for the belief that such personal bias or prejudice exists.

(7) "The facts as stated, as relied upon to show personal bias or prejudice, must be sufficient to fairly convince a sane and reasonable mind that such attitude on the part of the attacked judge exists." Benedict v. Seiberling, D.C., 17 F.2d 831, 836 — Judge Killits.

(8) The affidavit must be strictly construed and the terms of the statute strictly followed.

The foregoing principles are settled by a long line of decisions of the Supreme Court, the Circuit Courts of Appeal and of the District Courts. Among the decisions may be cited: Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481; Simmons v. United States, 5 Cir., 89 F.2d 591; Johnson v. United States, D.C., 35 F.2d 355; Ex parte N. K. Fairbank Co., D.C., 194 F. 978; Duncan v. United States, 9 Cir., 48 F.2d 128; Saunders v. Piggly Wiggly Corp., D.C., 1 F.2d 582 and other cases that it is unnecessary to cite.

With these principles in mind let us examine the affidavit. The affiant states that he is President of the Fieldcrest Corporation. The material parts of the affidavit charging a bias and prejudice on the part of the presiding judge are as follows:

"2. Affiant states that the Honorable Charles E. Woodward, before whom the above action is to be tried or heard, has a personal bias or prejudice in favor of the defendants herein, particularly the City of Chicago, and the facts upon which affiant bases said allegation of prejudice are as follows:

"3. The government of the defendant, City of Chicago, is controlled by the Democratic Party, one of whose leaders and controlling persons is Edward J. Kelly, Mayor of the City of Chicago; that the milk ordinance involved in this case was passed during the term of said Edward J. Kelly as Mayor of the City of Chicago and is commonly called, and in fact is so designated by the defendant members of the Board of Health of the City of Chicago and by the City of Chicago itself in the published copies of said ordinance, as the "Mayor Kelly Milk Ordinance" and said members of the Board of Health are appointed by and under the domination, direction, influence and control of said Edward J. Kelly.

"4. That said Edward J. Kelly is candidate for...