In re Steele

• Decision Date: 08 June 1908
• Citation: 161 F. 886
• Parties: In re STEELE.
• Court: U.S. District Court — Northern District of Alabama

161 F. 886

In re STEELE.

United States District Court, N.D. Alabama, Southern Division.

June 8, 1908

See 156 F. 853.

Syllabus by the Court

The act of Congress (Act July 1, 1898, c. 541, Sec. 2, 30 Stat. 545 (U.S. Comp. St. 1901, p. 3420)) creating courts of bankruptcy provides for one court only within the territory prescribed.

Courts of bankruptcy have no jurisdiction outside of their territorial limits as prescribed by the act of Congress creating them.

A United States district judge, even though a judge of the Northern and Middle districts of Alabama, has no jurisdiction, while holding court in the Middle district thereof, to make an order appointing a referee in bankruptcy for the Northern district of Alabama.

A United States district judge, even though a judge of the Northern and Middle districts of Alabama and residing in the Middle district, has no jurisdiction or authority to go into the Northern district, while the judge of the said Northern district is holding court therein, and make an order appointing a referee in bankruptcy and prescribing a rule for the reference of proceedings in bankruptcy to said referee so appointed by him, without the concurrence of the judge of the said Northern district.

Such action by a district judge, even though a judge of both districts, being made without the concurrence of the judge of the Northern district, is coram non judice and void, in so far as the same applies to the Northern district; and the judge of the said Northern district has the right and authority to set aside any order or orders so made.

Sterling A. Wood, for petitioner.

HUNDLEY District Judge.

The matter here presented is upon a sworn petition filed by Nenian L. Steele, a referee in bankruptcy heretofore appointed by this court, calling attention to the fact that the clerk of this court is proceeding, or is about to proceed, to refer one-half of the cases in bankruptcy filed in this court to Alex C. Birch, under and by virtue of what purports to be an order of this court appointing said Birch a referee in bankruptcy, and directing the clerk to make such reference to said Birch. Such appointment and order is averred to be absolutely void, and this court is asked to set the same aside as having been improvidently made. The facts stated in the petition, upon which relief is prayed, are as follows:

'(1) That on the 1st day of November, 1907, petitioner was duly and regularly appointed a referee in bankruptcy for certain counties in this district, and that he thereupon qualified, and has since the said time been such referee, having his office in the city of Birmingham, county of Jefferson, and state of Alabama, and that at this time he is the sole and only referee appointed for said counties of said district by the said court of bankruptcy.

'(2) That on the 1st day of June, 1908, Hon. Thomas G. Jones, a district judge of the United States, residing and presiding in the Middle district of Alabama, went upon the bench in the said city of Birmingham, county of Jefferson, and state of Alabama, and while upon said bench purported to sit as the court of bankruptcy for said Northern district of Alabama, and thereupon entered an alleged order purporting to appoint one Alexander C. Birch a referee in bankruptcy for the identical counties of the said Northern district of Alabama for which petitioner had been appointed previously by this court.

'(3) That the said Hon. Thomas G. Jones was at Montgomery, which was the place of his residence, and which was within the Middle district of Alabama, sitting and holding court in and for the said district until about the hour of half past 6 o'clock p.m., on Sunday, May 31, 1908, and that at said time, on said Sunday, May 31, 1908, the said Hon. Thomas G. Jones took passage on the Louisville & Nashville north-bound train and came to Birmingham, Ala., on the same, arriving at said Birmingham, Ala., at about half past 9 o'clock p.m. on said Sunday night, May 31, 1908, returning to said city of Montgomery, Ala., and to the said Middle district of Alabama, on the next through train on the said Louisville & Nashville Railroad, and which left said Brimingham, Ala., for said Montgomery, Ala., at about half past 8 o'clock a.m. on Monday, June 1, 1908. That the above 11 hours is all the time that Hon. Thomas G. Jones has been within the said Northern district of Alabama since November 5, 1907, when he was within the said district, and remained therein for a similarly short time, and for the purpose of attempting to remove this petitioner from his office as such referee, as set forth in another petition previously filed in this court of bankruptcy.

'(4) That the said Hon. Thomas G. Jones on the said June 1, 1908, at about the hour of 8 o'clock a.m., did go to the Government Building in the city of Birmingham, Ala., and did purport to open the court of bankruptcy therein, and that the sole and only business transacted, or attempted to be transacted, or purporting to be transacted, at the said time and place, was the alleged appointment of one Alexander C. Birch as a referee of the court of bankruptcy in and for the said Northern district of Alabama.

'(5) That the first alleged order purports to have been made on 'this 30th day of May, 1908,' when, as matter of fact, the said Hon. Thomas G. Jones was not then within the said Northern district of Alabama, but was at said Montgomery, Ala., for and during said entire day, sitting and holding court for the Middle district of Alabama, and that he had no authority whatsoever as the court of bankruptcy for the Northern district of Alabama to make the said alleged order, and that the same was void and of no force of effect.

'(6) That the second alleged order was made at the time previously stated, on the 1st day of June, 1908, and that at the said time the judge of this court was not at his place of residence, the said city of Birmingham, Ala., but was at the city of Anniston, in the Eastern division of the said district, and was then and there sitting and holding court at the time provided in all respects as required by law, and that the said action of the said Hon. Thomas G. Jones was not known to this court, and was not participated in by the judge of this court, nor was the judge of this court advised that such would be done or attempted, nor was the concurrence of this court asked in the same in any respect whatsoever, and that said alleged order was void and of no force or effect.

'(7) That there is but one court of bankruptcy for the said Northern district of Alabama, and that, under the provisions of the act of Congress relating to bankruptcy, such court of bankruptcy is authorized to '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,' and that the said Alexander C. Birch was not appointed by the said court of bankruptcy for the Northern district of Alabama.

'(8) That in and by the said alleged orders of the said Hon. Thomas G. Jones he has purported to direct the clerk of this court to refer every oddnumbered case in bankruptcy to the said Alexander C. Birch, and, if the interposition of this court is not invoked, that the said odd-numbered cases, which would otherwise be referred to this petitioner, who is entitled to the emoluments thereof, will be referred to the said Alexander C. Birch, and that the said Birch is not a referee of this court in truth and in fact.'

Copies of the orders referred to in the petition are made exhibits thereto.

The fact that such purported order or orders, as above set forth, were made by a United States district judge claiming to be a judge of this court, necessarily surrounds the questions presented with some embarrassment not generally arising in courts of justice, when called upon to modify, revise, or reverse the decisions of other judges or courts. More especially is this the case when the matter has reference to an officer of the court, for whose conduct the judge is at least morally responsible. However this may be, the Constitution and laws of the United States necessarily place the responsibility to act upon all judges to whom parties feeling aggrieved have the right by law to apply. I cannot under my oath of office decline to assume the responsibility which the law places upon me. I cannot delegate my jurisdiction to any other judge. I cannot divide my jurisdiction with any other judge. I cannot, with due respect to the office I hold, decline to act when it is my duty to act; nor can I yield this duty to others, however eminent they may be. I cannot silently permit another to assume the jurisdiction in my court which the law places upon me. The law defines my jurisdiction, the law defines my right and authority, and the law alone shall be the beacon to guide my footsteps in seeking rightfully to determine this matter.

As shown by the facts stated in the petition, an effort is made by the learned judge to create another referee in bankruptcy in this court, without the knowledge or concurrence of the court itself. This is sought to be done, first, by an order purporting to have been made while that learned judge was holding court in another district; and, second, by filing that order, thus purporting to have been made, in this district on Sunday night, May 31, 1908; and then, finally, by entering an order about 8 o'clock Monday morning, June 1 1908, ratifying the making of the previous order in another district. These various efforts at effecting the appointment of a referee and designating the manner in which the business of this court shall be referred to him were all made, or attempted to be made, at a time when the judge of this court was engaged in holding...