Fullerton v. Government of the Canal Zone

• Decision Date: 30 October 1925
• Docket Number: No. 4521.,4521.
• Citation: 8 F.2d 968
• Parties: FULLERTON v. GOVERNMENT OF THE CANAL ZONE.
• Court: U.S. Court of Appeals — Fifth Circuit

8 F.2d 968 (1925)

FULLERTON v. GOVERNMENT OF THE CANAL ZONE.

No. 4521.

Circuit Court of Appeals, Fifth Circuit.

October 30, 1925.

Chauncey P. Fairman, of Cristobal, Canal Zone, for plaintiff in error.

F. Edward Mitchell, U. S. Dist. Atty., for Canal Zone, of Washington, D. C., J. J. McGuigan, Asst. Dist. Atty., of Balboa Heights, Canal Zone, and Jno. O. Collins, of Ancon, Canal Zone, for the Government of Canal Zone.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

FOSTER, Circuit Judge.

Plaintiff in error, Raymond R. Fullerton, hereafter referred to as defendant, was the constable of the magistrate's court for the division of Cristobal, Canal Zone. An audit of his books disclosed that he had failed to account for and pay over to the proper officer various fines that had been received by him in his official capacity. On demand he made good the shortage. On September 26, 1924, an affidavit was filed in the said magistrate's court, charging defendant with having feloniously appropriated to his own use an additional amount of $91. Defendant was arrested, held to bail, and a hearing was had before the magistrate, at which time he offered to pay the amount he was charged with having embezzled, and subsequently he did so. On October 24, 1924, an information was filed in the Cristobal Division of the District Court, on behalf of the government of the Canal Zone, by one J. O. Collins, purporting to be assistant district attorney for the Canal Zone, charging defendant in apt language with the same offense, to wit, the embezzlement of $91 in United States currency, the property of the Panama Canal, which he had received in his official capacity as constable in liquidation of a fine imposed by the magistrate's court. Defendant appeared with counsel and pleaded not guilty. Thereafter, but on the same day, Collins, as assistant district attorney, moved for a change of venue to the Balboa division of the court. The motion was heard and granted. The case came on for trial in the Balboa division on October 30, 1924. Defendant then moved for a continuance, which was granted to November 12, 1924. On this day counsel for defendant stated verbally that he was not ready, and objected to going to trial in that division at all. Other than this he made no objection to the change of venue, did not take an exception to the order of court, and did not ask that the order be rescinded. Defendant also filed a motion to quash the information on the ground that there was no provision in the law of the Canal Zone for the office of assistant district attorney, and therefore Collins was not such officer, and was without authority to file the information. The motion to quash was overruled, and the trial proceeded, resulting in a verdict of guilty, on which judgment was entered and sentence imposed.

Error is assigned to the action of the court in granting the change of venue. Other errors are also assigned and will be adverted to later.

In 1904, under the authority of the Panama Canal Act (June 28, 1902), a complete system of courts was created, and a Code of Criminal Procedure was adopted by the Isthmian Canal Commission with the approval of the President. Laws of the Canal Zone, Annotated, 1921. Acts Nos. 1 and 15. By Act of Congress of August 24, 1912 (37 Stat. 564, §§ 7, 8 Comp. St. §§ 10043, 10044), magistrate's courts were provided for, and a District Court for the Canal Zone was created with two divisions, one including Balboa, and the other including Cristobal, with one District Judge. Civil and criminal jurisdiction was divided between the magistrate's courts and the District Court, which latter court was given original jurisdiction of all felony cases. The act (section 8) specifically provided that "the rules of practice in such District Court shall be prescribed or amended by order of the President." The same act gave authority to the President to determine the territorial extent of each division of the court.

Pursuant to the authority vested in him by the act of 1912, the President, by executive order dated March 12, 1914 (Executive Orders Relating to the Panama Canal, Annotated, 1921), adopted brief but comprehensive rules of practice to govern the District Court, incorporating therein by reference certain provisions of the existing Canal Zone laws. Section 11 of the order provided that —

"The District Judge may order a change of venue in any case, civil or criminal, when in his opinion that is necessary to an orderly and due administration of justice, or when for any cause it is not practicable to hold a session in the division where the case was originally instituted."

By Act of September 21, 1922 (Comp. St. Ann. Supp. 1923, §§ 10043, 10044), Congress enlarged the jurisdiction of the District Court and again vested authority in the President to prescribe, amend, or repeal rules of practice for the court.

The Act of August 24, 1912 (Comp. St. § 10038), also provides that —

"All laws, orders, regulations, and ordinances adopted and promulgated in the Canal Zone by order of the President for the government and sanitation of the Canal Zone and the construction of the Panama Canal are hereby ratified and confirmed as valid and binding until Congress shall otherwise provide."

Section 164, Code of Criminal Procedure of the Canal Zone provides for a change of venue in a criminal case from one district to another on the application of the defendant only, and to that extent might seem to be in conflict with section 11 above quoted.

Defendant relies on said section 164 in urging the illegality of the order of the District Judge in this case, and contends that said section is kept in force by reason of the provisions of the Act of August 24, 1912, continuing all laws of the Canal Zone until Congress shall otherwise provide. It is quite evident, however, that Congress intended to continue only such laws as were applicable to changed conditions. The District Court created by the act was not in existence when the Code of Criminal Procedure was adopted, and of course the Code was not intended to apply to that court. Furthermore, the provision for a change of venue provided for by the Code of Criminal Procedure was from one court to another and not from one division to another of the same court. By vesting the President with authority to prescribe rules of practice for the District Court, Congress expressly deprived the existing rules of practice intended for other and different courts of any efficacy whatever, unless subsequently adopted by him.

Defendant further contends that section 11 of the order providing for a change of venue is not a rule of practice, and the President was therefore without authority to establish the rule set out in section 11 of the Executive Order above referred to. With this contention we cannot agree. There is but one District Court in the Canal Zone. For the convenience of litigants, Congress divided the court into two divisions, but left it to the President to say what territory should be included in each division, provided Balboa was included in one division and Cristobal in the other. The provision for a change of venue from one division of the court to another is as much a rule of practice as a provision for the granting of a new trial or an order prescribing the form of pleadings, delays for answer, or the time in which an appeal may be taken. Section 11 of the Executive Order relating to a change of venue was well within the authority of the President to make. In the courts of the United States the authority to adopt rules of practice in admiralty, in equity, and in bankruptcy is delegated to the Supreme Court. In adopting laws to govern the Canal Zone, Congress could delegate to the President authority to make rules of practice in the District Court.

It follows that the District Judge had the right to grant a change of venue in the exercise of sound judicial discretion, either on the application of the government or the defendant.

As bearing upon the exercise of discretion by the District Judge, at the hearing on the motion for a change of venue...