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CHAPTER NINE.

THE COMMERCE COURT.

Bec.

200. Commerce Court created; judges of, appointment and designation; expense allowance to judges. 201. Additional circuit judges; appointment and assignment.

202. Officers of the court; clerk, marshal, etc.; salaries, etc.

203. Court to be always open for business; sessions of, to be held in Washington and elsewhere.

204. Marshals to provide rooms for holding court outside of Washington. 205. Assignment of judges to other duty; vacancies, how filled.

206. Powers of court and judges; writs, process, procedure, etc.

207. Jurisdiction of the court. 208. Suits to enjoin, etc., orders of Interstate Commerce Commission to be against United States; restraining orders, when granted without notice.

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275. Qualifications and exemptions of 283. Foreman of grand jury.

jurors.

276. Jurors, how drawn.

284. Grand juries, when summoned. 285. Discharge of grand juries.

277. Jurors, how to be apportioned in the 286. Jurors not to serve more than once a

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289. Circuit courts abolished; records of 294. Laws revised in this act to be con

to be transferred to district courts.

290. Suits pending in circuit courts to be

disposed of in district courts.

291. Powers and duties of circuit courts imposed upon district courts.

strued as continuations of existing laws.

295. Inference of legislative construction not to be drawn by reason of arrangement of sections.

292. References to laws revised in this 296. Act may be designated as "The

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297. Sections, acts, and parts of acts 300. Offenses committed, and penalties, repealed.

298. Repeal not to affect tenure of office,

or salary, or compensation of incumbents, etc.

299. Accrued rights, etc., not affected.

forfeitures, and liabilities incurred, how to be prosecuted and enforced.

301. Date this act shall be effective.

[Act of Mar. 3, 1911; 36 Stat., 1087.]

AN ACT To codify, revise, and amend the laws relating to the judiciary.

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District courts established; appoint

R. S., ss. 551, 552.

s. 1; I Supp., 106.

Stat. L., 682, C.

26 Stat. L., 217, c.

767. 10 July, 1890,

SEC. 1. In each of the districts described in chapter five, there shall be a court called a district court, for which there shall be appointed ment and residence one judge, to be called a district judge; except that in the northern of judges. district of California, the northern district of Illinois, the district 26 June, 1876, 19of Maryland, the district. of Minnesota, the district of Nebraska, the Stat. L., 61, c. 147. district of New Jersey, the eastern district of New York, the northern 22 Feb., 1889, 25 and southern districts of Ohio, the district of Oregon, the eastern and is. 21; I Supp.; western districts of Pennsylvania, and the western district of Wash- 649. 3 July, 1890, ington, there shall be an additional district judge in each, and in the 656, s. 16:1 Supp., southern district of New York, three additional district judges: 28 Stat. Lu, 225, c. Provided, That whenever a vacancy shall occur in the office of the 664, s. 16: 1 Supp., 770. 16 July, 1894, district judge for the district of Maryland, senior in commission, 28 Stat. L., 110, c. such vacancy shall not be filled, and thereafter there shall be but one 200: 4 Feb., 1903, district judge in said district: Provided further, That there shall be 32 Stat. L., 795, c. one judge for the eastern and western districts of South Carolina, 1903, 32, Stat. L., one judge for the eastern and middle districts of Tennessee, and one 1904, 33 Stat. L., judge for the northern and southern districts of Mississippi: Pro- 155, c. 857. vided further, That the district judge for the middle district of 987, Alabama shall continue as heretofore to be a district judge for the L., 993, C. 1427, s. northern district thereof. Every district judge shall reside in the 2, 26 May, 1906. district or one of the districts for which he is appointed, and for c. 2557. 16 June, offending against this provision shall be deemed guilty of a high L., 275, c. 3335. §. misdemeanor. (36 Stat. L., 1087.)

138, s. 14; II Supp.,

402, s. 1. 9 Feb.,

805, c. 527. 1 Apr.,

3 Mar.,

1905, 33 Stat. L., C. 1418. 3 Mar., 1905, 33 Stat.

34 Stat. L., 202,

1906, 34 Stat. 13. 25 Feb., 1907, 34 Stat. L., 928, c. 1189. 25 Feb., 1907, 1198. 27 Feb., 1907,

This section states in concise language the number of judges in the respective 34 Stat. L., 931, c. judicial districts, and was existing law.

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34 Stat. L., 997, c. Sec. 297, post, p. 148, repeals "all Acts and parts of Acts authorizing the 2073. 2 Mar., 1907, 34 Stat. L., 1253, appointment of United States circuit or district judges, enacted prior c. 2575. 26 Feb., to February first, nineteen hundred and eleven," and Sec. 289, post, p. 146, 1909, 35 Stat. L., abolished the circuit courts. 656, c. 215; 2 Mar., 1909, 35 Stat. L.,

NOTE. The notes in this volume relating to the sources of the following sections and 685, c. 242, s. 1; 2 to changes made in the law by the Judicial Code are taken substantially from the report Mar., 1909, 35 Stat. of the Special Joint Committee on Revision and Codification of the Laws of the United L., 686, c. 243, ss. States, Sixty-first Congress, second session (S. Rept. No. 388, pt. 1), section numbers 1, 3. 24 Feb., 1910, being changed wherever necessary.

36 Stat. L., 201, c.

56. 24 Feb., 1910, 36 Stat. L., 202, c. 57. 25 June, 1910, 36 Stat. L., 838, c. 410. Mo. Pac. Ry. Co. v. Holmes, 155 U. S., 137; Koenigsberger v. Richmond Silver Mining Co., 158 U. S., 41.

Salaries of dis

trict judges.

R. S., s. 554.

SEC. 2. Each of the district judges shall receive a salary of six thousand dollars a year, to be paid in monthly installments. (36

3 Mar., 1881, 21 Stat. L., 1087.)

Stat. L., 412, c.

130; 1 Supp., 320. This section is a reenactment of a provision in the act of Feb. 12, 1903 (32 24 Feb., 1891, 26 Stat. L., 825, c. 547). Stat. L., 783, C.

287; 1 Supp., 896. Section 297, post, p. 147, repeals section 554, Revised Statutes, providing 12 Feb., 1903, 32 for the salaries of district judges. Traveling expenses of district judges are Stat. L., 825, c. 547. provided for in section 259, post, p. 133.

Clerks.

R. S., s. 555.

Deputy clerks.
R. S., s. 558.

66

'The word 'salary' may be defined generally as a fixed annual or periodical payment for services, depending upon the time and not upon the amount of services." (Benedict v. U. S., 176 U. S., 360.)

SEC. 3. A clerk shall be appointed for each district court by the judge thereof, except in cases otherwise provided for by law. [See §§ 67, 68.] (36 Stat. L., 1087.)

This is a reenactment of existing law.

That the power of removal is incident to the power of appointment, see U. S. v. Allred, 155 U. S., 594.

SEC. 4. Except as otherwise specially provided by law, the clerk of the district court for each district may, with the approval of the district judge thereof, appoint such number of deputy clerks as may be deemed necessary by such judge, who may be designated to reside and maintain offices at such places of holding court as the judge may determine. Such deputies may be removed at the pleasure of the clerk appointing them, with the concurrence of the district judge. In case of the death of the clerk, his deputy or deputies shall, unless removed, continue in office and perform the duties of the clerk, in his name, until a clerk is appointed and qualified; and for the default or misfeasances in office of any such deputy, whether in the lifetime of the clerk or after his death, the clerk and his estate and the sureties on his official bond shall be liable; and his executor or administrator shall have such remedy for any such default or misfeasances committed after his death as the clerk would be entitled to if the same had occurred in his lifetime. [See §§ 67, 68.] (36 Stat. L., 1087.)

Section 558, Revised Statutes, repealed by section 297, post, p. 147, authorized the judge to appoint deputy clerks, upon the application of the clerk. Congress having provided in many special cases that the clerk shall appoint the deputies, this section was so revised so as to permit the clerk to appoint the deputies, with the approval of the district judge; and has conferred upon the clerk the power to remove any deputy, with the concurrence of the judge.

A provision was also added that the court may designate the place at which any deputy is to reside and maintain an office.

The words "except as otherwise specially provided," at the beginning of the section, are added for the reason that in a number of the sections in chapter 5 there are provisions specially requiring deputy clerks to be appointed at certain places of holding court.

That a deputy may do every act which his principal might do, see Confiscation Cases, 20 Wall., 111. That this section does not provide for the powers and duties of deputy clerks, see U. S. v. Erwin, 37 Fed., 475.

Criers and bailiffs.

R. S., s. 715. 3 Mar.,

SEC. 5. The district court for each district may appoint a crier for the court; and the marshal may appoint such number of persons, not exceeding five, as the judge may determine, to wait upon the stat. L. 1047, grand and other juries, and for other necessary purposes. (36 Stat. 831. L., 1088.)

This section states existing law except for the reference to the authority of circuit courts to appoint criers, in view of those courts being abolished by section 289, post, p. 146.

SEC. 6. The records of a district court shall be kept at the place where the court is held. When it is held at more than one place in any district and the place of keeping the records is not specially provided by law, they shall be kept at either of the places of holding the court which may be designated by the district judge. (36 Stat. L., 1088.)

This section is a reenactment of existing law.

SEC. 7. No action, suit, proceeding, or process in any district court shall abate or be rendered invalid by reason of any act changing the time of holding such court, but the same shall be deemed to be returnable to, pending, and triable in the terms established next after the return day thereof. (36 Stat. L., 1088.)

This section makes no change in existing law.

Records,

kept.

R. S., s. 562.

31 c.

where

1 Comp. Dec., 313.

Effect of altering terms.

R. S., s. 573.

1 Comp. Dec., 321.

new

SEC. 8. When the trial or hearing of any cause, civil or criminal, continued by Trials not disin a district court has been commenced and is in progress before a term. jury or the court, it shall not be stayed or discontinued by the ar- R. S., s. 746. rival of the time fixed by law for another session of said court; but the court may proceed therein and bring it to a conclusion in the same manner and with the same effect as if another stated term of the court had not intervened. (36 Stat. L., 1088.)

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The only material change made in existing law by this section consists in the omission of the words 'circuit or" before the words "district court," the circuit courts being abolished by section 289, p. 146.

On the trial of an indictment, when but three jurors had been sworn before the term ended, it was held that the trial "had been commenced and was in progress." (U. S. v. Loughery, 13 Blatch., 267; 26 Fed. Cas., No. 15631.)

Courts always open as courts of ad

R. S., s. 574.

SEC. 9. The district courts, as courts of admiralty and as courts of equity, shall be deemed always open for the purpose of filing any miralty and equity. pleading, of issuing and returning mesne and final process, and of making and directing all interlocutory motions, orders, rules, and other proceedings preparatory to the hearing, upon their merits, of all causes pending therein. Any district judge may, upon reasonable notice to the parties, make, direct, and award, at chambers or in the clerk's office, and in vacation as well as in term, all such process, commissions, orders, rules, and other proceedings, whenever the same are not grantable of course, according to the rules and practice of the court. (36 Stat. L., 1088.)

The words "so far as equity jurisdiction has been conferred upon them," are omitted in view of the fact that the jurisdiction of the circuit courts is transferred to the district courts by this code, chapter 2, p. 9, and sections 289, 291, page 146.

"The existence of a term does not depend upon the fact that any business is transacted thereat, nor does any general order of continuance of itself close the term." (McDowell v. United States, 159 U. S., 596.)

Proceedings are inoperative and void when held on a day other than thať provided by law for the holding of a term of court. (McGlashan v. U. S., 71 Fed., 434.)

A session of the court is held whenever business is transacted by the judge between its regular terms. (Butler v. U. S., 87 Fed., 655.)

This section is little more than a recognition of the inherent and ancient powers of a chancellor exercising the powers of equity judges in matters of equitable cognizance, and a Federal circuit judge had authority at chambers to make an order appointing a receiver in a pending cause. (Horn v. Pere Marquette R. Co., 151 Fed., 626.)

See Equity Rule No. 1, November 4, 1912, 226 U. S., 649, 198 Fed. XIX.

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