BIRCH v. STEELE, 165 F. 577

SHELBY, Circuit Judge (after stating the facts as above). A great many questions are directly or indirectly raised by the allegations of the petition and the arguments of counsel, oral and written, but they can all, so far as they are material, be disposed of by the decision of three questions:

(1) Is the statute making the judge of the Middle district also judge of the Northern district still in force?

(3) Does the bankruptcy act of 1898 (Act July 1, 1898, c. 541, 30 Stat. 544 [U. S. Comp. St. 1901, p. 3418]) require the concurrent action of both the judges to make valid orders appointing and removing referees? And, (3) on the facts stated in the petition, should this court superintend and revise the action of the court of bankruptcy in the appointment and removal of referees? 1.' By the act of August 7, 1848, Alabama was divided into three districts, called the Southern, Middle, and Northern districts. Rev. St. § 533 (U. S. Comp. St. 1901, p. 317).

The statutes at first al- . lowed the appointment of only “one District Judge, who shall be District Judge for each of the districts included in the state.” Id. § 553 (U. S. Comp. St. 1901, p. 447). This condition continued until August 3, 1886, when

an act was passed for the appointment of a District Judge for the Southern district, which act provided “that the jurisdiction of the present District Judge for the several districts of Alabama, and his successors, shall hereafter be confined to the Northern and Middle districts of said state.” Act Aug. 3, 1886, c. 843, § 3, 34 Stat. 313 (U. S. Comp. St. 1901, p. 449). Prior to the passage of this act, the Alabama District Judge’s jurisdiction had extended to all three districts. The effect of this act was only to relieve him, and his successors, of jurisdiction in the Southern district.

At the time of the passage of this act providing for the appointment of a judge for the Southern district, Judge John Bruce was the District Judge for the Alabama districts. He continued to exercise jurisdiction in the Middle and Northern districts till his death, when Hon. Thomas G. Jones was, on December 20, 1901, appointed his successor. For brevity, he will he referred to as the first judge. Tic was appointed and commissioned judge of the Middle and Northern districts of Alabama, mid, by the letter of the statute quoted, had jurisdiction in both districts. On February 25, 1907,

an act was passed (Act Feb. 25, 1907, c. 1198, 34 Stat. 931 [U. S. Comp. St. Supp. 1907, p. 187]) providing for the appointment of “a District Judge for the Northern judicial district of Alabama.” On April 10, 1907, Hon. Oscar R. Hundley was appointed District Judge under this act. He will be referred to as the second judge. The act of February 25, 1907, contains no express repeal of the prior act giving the first judge jurisdiction in +he Middle and Northern districts. It contains, in fact, no repealing clause of any kind.

The question, therefore, is, whether the act last passed repeals the prior act by necessary implication.

It has been often held by the Supreme Court that repeals by implication are not favored, and it is the unquestioned rule that, “if it be possible to reconcile two statutes, one will not be held to repeal the other.” The later statute does not repeal the former, “unless the two acts are in irreconcilable conflict, or unless the later statute covers the whole ground occupied by the earlier and is clearly intended as a substitute for it, and the intention of the legislature to repeal must be clear and manifest.” Red Rock v. Henry, 106 U. S. 596, 601, 1 Sup. Ct. 431, 27 L. Ed. 251.

A repeal by necessary implication does not occur when the provisions of both statute can stand together. The first judge, by a plain statute, is given jurisdiction in the Northern district. The later statute authorizes the appointment of a judge for the Northern district. The two statutes may stand together, and are not in irreconcilable conflict, we think, because the first statute causes the first judge to remain the sole judge of the Middle district and to remain a judge of the Northern district, and the second statute makes the second judge a judge of the Northern district.

They each have a field of operation, without conflict. The statutes do not become irreconcilable unless we assume what is not true — that there cannot be two judges of one District Court. When Congress provided for the appointment of a judge of the Southern district, the act provided that the jurisdiction of the judge of the several districts should be confined to the Northern and Middle districts, thereby making it plain that the judge of the Southern district should be the sole judge of that district. But there is nothing of the kind in the act in question.

There is no word or phrase that shows an intention to confine the judge of the Middle and Northern districts to the former district. We cannot interpolate such words by construction. If the last act had provided for the appointment of a judge of the Middle and Northern districts, could it be claimed that Congress had deprived the first judge entirely of jurisdiction? Or, if the first judge had been judge only of the Northern district, and the last act had provided for a judge of the Middle and Northern districts, could it be held that there was a repeal by necessary implication?

If there was irreconcilable conflict in the one case, there would be in the other. There are other considerations besides the letter of the act that lead to the same conclusion. No provision is made for cases already submitted to the first judge, as would probably have been done if his authority was to cease. Congress, on April 14, 1906, passed

an act requiring terms of the courts to be held at Birmingham, in the Northern district, twice each year, on the first Mondays in March and September, and “that said courts shall remain in open session for the transaction of business at least six months in each calendar yc,zx.” Act April 14, 1906, c. 1625, 34 Stat. 114 (U. S. Comp. St. Supp. 1907, p. 105). There are three other places where courts are required to be held twice a year in the Northern district. It will probably be difficult for the second judge to hold all these terms unaided by the first judge.

This act requiring six months’ open session, and specially providing for the assignment of other judges, shows that Congress was informed as to the fact that additional judicial force was needed in the Northern district. Under the circumstances, it is quite probable that it was its intention, in providing a judge for the Northern district, not to dispense with the services of the first judge, whose entire time would probably not be required by the work in the Middle district.

The fact that the exercise of authority by each of the two judges, as shown by the record, may have caused a condition unusual and one likely to be detrimental to the public interest, cannot influence our decision or extend the authority of this court. Nor does the condition indicate that Congress would not have intended to confer jurisdiction on two District Judges in one district.

We know that it is usual in the federal judicial system to have in a district several judges of concurrent authority in the several Circuit Courts, and that one of them has the power and authority to vacate the orders of another, but such authority causes no embarrassing conflict, and is usually exercised in the public interest and under settled rules controlled by law and judicial courtesy. Ide v. Crosby (C. C.) 104 Fed. 582, and cases there cited.

Our attention is called to the course of legislation in providing for the appointment of judges, and it is argued that the failure of Con-gt-css to use the words, “an additional judge,” shows the intention that the’ second judge should be the only judge of the Northern district.

Several of such statutes are cited, and the following is quoted as a sample of such legislation: -Be H enacted, etc., that there shall bo in the district of Minnesota ;m additional District Jut hie, who shall lie appointed by the President, by and with •hiu> advice and. eonsonr of the Senate, and shall possess the same rpialiiioations and have the same power and jurisdiction now prescribed by law in respect to the nreseuc District Judge therein.” Act Feb. 4, 1903, c. 402, 32 Stat. 795 (U. S. Comp. St. 1907, p. 183).

It is apparent that the statutes referred to were not intended ^to meet a case like the one provided for by the act in question here. _ The judge to be appointed tinder the act here in question was to be a judge of a named district only, when the existing judge in that district was judge also of another district. That fact may account for the phraseology of the bill, and show7 why the form of the acts referred to could not be wrell followed.

To provide that a second judge was to “possess the same qualifications and have the same power and jurisdiction now prescribed by law in respect to the present District Judge therein” might, be construed to extend the jurisdiction of the second judge to both the districts in which the first judge had jurisdiction. Instead, therefore, of referring to the jurisdiction of the first judge as the measure of the authority of the second judge, there is a general reference to the powers of District Judges in their districts.

We cannot assent to the view that the peculiar language of the bill was used with the studied purpose of excluding the first judge from the Northern district when that could have been otherwise accomplished with more brevity and clearness. The formula of the act of August 2, 1886, could have been used, confining the first judge and his successors to the Middle district, or, the second judge could have been named as the sole judge of the Northern district. It is true, on the other hand, that the use of the words, “an additional judge,” wrould have made the meaning plainer.

But we must remember that the burden of showing the repeal is on the respondent. There was existing a statute giving the first judge jurisdiction in the Northern district, and words of exclusion are required io effect the repeal or withdrawal of that jurisdiction. As no such words are used, and as there is no irreconcilable conflict, there can be no repeal unless the later statute covers the whole ground occupied by the earlier statute and is dearly intended as a substitute for it. As was said in New London N. R. R. Co. v. B. & A. R. R.

Co., 102 Mass. 386, “a later statute, containing provisions, though merely affirmative in form, plainly repugnant to those of a former statute, repeals it as absolutely as by a negative clause.” If it were the law that there could he but one District Judge of a judicial district, it might be successfully contended that the lawful appointment of a second judge excluded the first judge. In that case, only one judge being possible, two statutes, each providing for one judge, would be in conflict, and the last statute would repeal the first. It would cover the whole ground, for only one judge could stand on it.

But when it is conceded that a second judge may be, and frequently is, provided for, it follows that the statute merely providing for the appointment of the second judge is not necessarily a substitute for the statute which provided for the appointment of the first. As there may lawfully be two judges, it takes something more than a provision for the appointment of the second to displace the first. Applying the rulé announced in Red Rock v. Henry, supra, we hold that the later act does not repeal the former. 2.

It is contended by the learned counsel for the petitioner that it requires the “concurrent action of both judges to exercise the administrative power of appointment of a referee to hold office for a stated period”; and that the same concurrent action of the two judges is required to effect the removal of a referee. The solution of the question raised by this contention depends on the construction and meaning of the bankruptcy act of 1898.

The relevant language of the statute is: “Courts of bankruptcy shall * * * 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.” Bankruptcy Act (Act July 1, 1898, c. 541, § 34a, 30 Stat. 555 [U. S, Comp. St. 1901, p. 3435]). Courts of bankruptcy include the District Courts of the United States. Id. § 1, subd. 8. The Constitution confers the power on Congress to vest in the courts the authority to appoint referees. Const, art. 2, §• 2;

article 1, § 8. It must be kept in mind that Congress has not attempted to confer the power to appoint referees on the judge or judges, but it is conferred on the courts of bankruptcy. If the statute conferred the power of appointment on the two judges, a different question would be presented. A United States District Court, which is, under the act, a court of bankruptcy, is a court held by one judge.

There may be by statute, or by assignment of a Circuit Judge, two District Judges with authority to hold the District Court at the same time and in different places in the district designated by law, but at each place where the court is held it is a court held by one judge. No provision is made for two District Judges to sit together and hold the District Court. This is conceded to be true, and is not questioned when the court sits in the discharge of its ordinary judicial' duties as a District Court or as a court of bankruptcy.

We find no word in the statute indicating a different plan of court organization or mode of procedure when the court of bankruptcy sits to appoint or remove a referee. A District Court or a court of bankruptcy may be held for all purposes by one lawful and authorized judge. Where a court is composed of a number of judges, and the power of appointment •of an officer is conferred on such court, the appointment may be made by the court when held by the number of judges required by law to hold the court. Warner v. People, 2 Denio (N. Y.) 272, 43 Am. Dec. 740.

When the power of appointment or reirioval of an ■officer is conferred on a court which may be held by one judge, the power may be exercised by the court so held, although there may be another judge who is also authorized to hold the same court. This follows, we think, from the fact that the power is conferred on the court, and not on the. judge or judges. When a lawful District Court convenes or sits, it can proceed to make the appointment or the removal of a referee just as it proceeds to make other orders.

We have carefully examined the several cases cited oil this point by the learned counsel for the petitioner, and we do not deem them controlling. Where authority is conferred by statute on a hoard of magistrates by a vote of each magistrate to elect a treasurer (Smyth v. Darley, 2 H. L. Cas. 789), or on two overseers of the poor to exercise jointly a designated power (Downing v. Rugar, 21 Wend. [N. Y.] 178, 34 Am. Dec. 223), or on judges, or a majority of them, to fix, at a meeting of the judges, special terms of court (Merchant v.

North, et al., 10 Ohio St. 262), and in similar cases, a different rule from the one we have announced would obtain. The statute in each case must control. Those cases have no application to the case at bar, for, in them, authority conferred on certain individuals or officers collectively is considered. Here, the power and authority in question is conferred on the court, and the requirement of the statute is met when the court exercises the authority. 3. The authority to superintend and revise in matters of law proceedings of the court of bankruptcy is con ferred on this court by

section 21b of the bankruptcy act. The material order sought to be revised in this proceeding is an order removing the petitioner from the office of referee. We have already quoted the statute which authorizes the court of bankruptcy to appoint and remove referees.

By the express terms of the act, the bankruptcy courts “may, in their discretion, remove them because their services are not needed or for other cause.” If the position of the petitioner could he sustained, that the order removing him could not be legally made without the concurrent, action of both the judges, a'case might be presented authorizing the interference of this court. But we have held that position not well taken, and that a valid order of appointment or removal of a referee may be made by the court of bankruptcy held by one judge.

Our conclusion on that question is fatal to the petitioner’s right to relief. The right and power to remove is in the court of bankruptcy, to be exercised at its discretion. We find neither in the statute nor in the adjudged cases an}- authority conferred on this court to control the court of bankruptcy, on the facts alleged in the petition, in the exercise of its discretion in making the order of removal.

Congress, exercising an authority conferred by the Constitution, has vested the power to appoint referees exclusively in the courts of bankruptcy, and, when appointed, tlie referee holds the office at the discretion of the court that appointed liim. It follows, we think, that this court: can have no control over the appointment or removal, nor can it make inquiry into the grounds of removal.

As was said by the Supreme Court in a case involving a similar question: “If the Judge Is chargeable with any abuse of Ms power, this Is not the tribunal to which he is amenable; and as wo have no right to judge upon this matter, or power to afford redress, if any is required, we abstain from expressing any ox>inion upon that part of the case.” In re Hennen, 13 Pet. 230, 260, 10 L. Ed. 138. The petition to superintend and revise is disallowed and dismissed.

An act: providing for a United States judge for tiie Northern judicial district of Alabama. “Be it enacted by the Senate and House of Itepresenfatives of the United States of America in Congress assembled, that the President of the United States, by and with the advice and consent of the Senate, shall appoint a District Judge for the Northern judicial district of Alabama, who shall possess and exercise all the powers conferred by existing law upon the judges of the District Courts of the United States, and who shall possess the same powers and perforin fhe same duties within (he said Northern judicial district of Alabama as are now possessed by and performed by the District Judge of the United States in any judicial districts established, by law, and he shall receive the same compensation now or hereafter prescribed by law in respect to other District Judges of the United States: And provided, that after appointment the judge appointed under this act shall reside at Birmingham, in said district. “Approved, February 25, 1907.”