The provision of the act of 1891, c. 517, § 3, that no judge
before whom "a cause or question may have been heard or tried" in a
district or circuit court shall sit "on the trial or hearing of
such cause or question" in the circuit court of appeals
disqualifies a judge who has once beards cause upon its merits in
the circuit court from sitting in the circuit court of appeals on
the hearing and decision of any question in the same cause which
involves in any degree matter on which he had occasion to pass in
the circuit court.
The case is stated in the opinion of the Court.
MR. JUSTICE GRAY delivered the opinion of the Court.
This is a writ of certiorari heretofore granted by this Court,
under the Act of March 3, 1891, c. 517, § 6, to review a decree
made by Judge Pardee and Judge Newman in the Circuit Court of
Appeals for the Fifth Circuit upon an appeal to that court from the
Circuit Court of the United States for the Northern District of
Texas.
The leading question presented by the writ of certiorari is
whether Judge Pardee was disqualified to sit at the hearing of that
appeal by the provision of § 3 of that act
"that no justice or judge before whom a cause or question may
have been tried or heard in a district court or existing circuit
court shall sit on the trial or hearing of such cause or question
in the circuit court of appeals."
26 Stat. 827.
If Judge Pardee was so disqualified, the decree in which he took
part, even if not absolutely void, must certainly be set aside and
quashed without regard to its merits.
American
Page 174 U. S. 154
Construction Co. v. Jacksonville Railway, 148 U.
S. 372,
148 U. S.
387.
The material facts bearing upon the question of his
disqualification, as appearing by the record now before this Court,
are as follows:
Upon a bill in equity filed April 2, 1885, in the aforesaid
circuit court of the United States by the Morgan's Louisiana &
Texas Railroad & Steamship Company against the Texas Central
Railway Company to foreclose a mortgage of its railroad and other
property, Judge Pardee, on April 4, 1885, made an order appointing
Benjamin G. Clark and Charles Dillingham joint receivers of the
property, and appointing John G. Winter special master as to all
matters referred or to be referred to him in the cause.
Upon a petition filed in that cause by Dillingham representing
that he had been the active receiver for seventeen months and
praying for an allowance for his services as such, Judge Pardee on
December 4, 1886, made an order
"that the receivers be authorized and directed to place Charles
Dillingham upon the payroll of the receivers for the sum of one
hundred and fifty dollars per month, as an allowance upon his
compensation as receiver in this cause; this allowance to date from
the possession of the receivers, and to continue while Mr.
Dillingham gives his personal attention to the business of the
company, or until the further order of the court."
On April 12, 1887, Judge Pardee made a final decree in the cause
for the foreclosure of the mortgage, for the sale of the mortgaged
property by auction, and for the payment by the purchasers of
"all the indebtedness of the receivers incurred by them in this
cause, including all the expenses and costs of the receivers'
administration of the property, . . . and also the compensation of
the receivers and their solicitors,"
appointing Dillingham and Winter special master commissioners to
make the sale and to execute and deliver a deed to the purchasers,
and reserving the right to any party to the cause, as well as to
the receivers and master commissioners, to apply to the court for
orders necessary to carry that decree into execution. Appeals from
that decree were taken by the Morgan's
Page 174 U. S. 155
Louisiana & Texas Railroad & Steamship Company and by
the Texas Central Railway Company to this Court, which on November
24, 1890, affirmed that decree.
137 U. S. 137 U.S.
171.
Pursuant to that decree, on April 22, 1891, all the property
mortgaged, except some not immediately connected with the railroad,
was sold to Moran, Gold, and McHarg, trustees for bondholders. On
their petition filed in the cause, Judge Pardee on August 28, 1891,
made a decree directing Dillingham and Clark, receivers, to execute
and deliver a deed, and to deliver possession, to the purchasers,
of all the property, real and personal, of the Texas Central
Railway Company in the State of Texas used for and pertaining to
the operation of its railway, and providing
"that nothing in this decree contained is intended to affect, or
shall be construed as affecting, the status of any pending or
undetermined litigation in which said receivers appear as parties;
such litigation shall continue to determination in the name of said
receivers, with the right reserved to said purchasers, should they
be so advised, to appear and join in any such litigation, and
nothing in this decree contained is intended to affect, or shall be
construed as affecting, the receivership of any of the property of
the defendant railway company other than the property so
transferred to said purchasers, possession of which said property
other than that so transferred is retained for further
administration, subject to the orders of this Court,"
and "that said purchasers or said receivers may apply at the
foot of this decree for such other and further relief as may be
just." The property was accordingly delivered to the purchasers in
September, 1891. On November 6, 1891, on like petition of the
purchasers, Judge Pardee made a similar decree, except in directing
the deed to the purchasers to be executed and delivered by
Dillingham and Winter, special master commissioners, and in other
particulars not material to be mentioned.
Dillingham afterwards, and until April, 1895, continued to draw
and pay to himself the sum of $150 a month, and returned quarterly
accounts to the master, crediting himself with those sums. On
August 25, 1891, he presented a petition, entitled in the cause, to
the master, praying him to
Page 174 U. S. 156
"make to him such an allowance for his services as receiver in
the above-entitled cause, from the date of his appointment until
his discharge, as to said master may seem just and proper."
About the same time, a compromise was made between him and the
purchasers pursuant to which he was paid, in addition to the
allowance of $150 a month for the past, the sum of $20,000 for
services as receiver, and he signed a paper, entitled in the cause,
acknowledging that he had received from them the sum of $20,000 "in
full of my fees and charges as receiver of the Texas Central
Railway Company, as per agreement." At the hearings before the
master upon Dillingham's accounts, it was contested between him and
the purchasers whether he was entitled to $150 monthly since the
compromise. The master reported that he was, and exceptions by the
purchasers to his report were referred on April 8, 1895, by order
of Judge McCormick, to Abner S. Lathrop, as special master, who, by
his report, filed September 26, 1896, found that Dillingham was
entitled to the monthly allowance of $150 until April, 1893, but
was not entitled to it from April, 1893, to April, 1895. That
report, on exceptions taken by the purchasers and by Dillingham,
was confirmed by decree of Judge Swayne on December 5, 1896, and
from that decree Dillingham took an appeal to the circuit court of
appeals.
All the proceedings above stated were filed in, and entitled of,
the cause of
Morgan's Louisiana & Texas Railroad &
Steamship Company against the Texas Central Railway
Company.
The appeal of Dillingham was heard in the circuit court of
appeals by Judge Pardee and Judge Newman, who, for reasons stated
in their opinion, delivered by Judge Newman, sustained Dillingham's
exceptions to the master's report, reversed the decree of Judge
Swayne, and remanded the cause to the circuit court, "with
instructions to overrule and discharge the motions attacking the
receiver's accounts." 52 U.S.App. 425, 432. Moran, Gold, and
McHarg, the purchasing trustees, thereupon applied for and obtained
this writ of certiorari. 169 U.S. 737.
The intention of congress in enacting that no judge before
Page 174 U. S. 157
whom "a cause or question may have been tried or heard" in a
district or circuit court "shall sit on the trial or hearing of
such cause or question" in the circuit court of appeals manifestly
was to require that court to be constituted of judges uncommitted
and uninfluenced by having expressed or formed an opinion in the
court of the first instance. Whatever may be thought of the policy
of this enactment, it is not for the judiciary to disregard or to
fritter away the positive prohibition of the legislature.
The enactment, alike by its language and by its purpose, is not
restricted to the case of a judge's sitting on a direct appeal from
his own decree upon a whole cause, or upon a single question. A
judge who has sat at the hearing below of a whole cause at any
stage thereof is undoubtedly disqualified to sit in the circuit
court of appeals at the hearing of the whole cause at the same or
at any later stage. And as "a cause," in its usual and natural
meaning, includes all questions that have arisen or may arise in
it, there is strong reason for holding that a judge who has once
heard the cause, either upon the law or upon the facts, in the
court of first instance, is thenceforth disqualified to take part,
in the circuit court of appeals at the hearing and decision of the
cause, or of any question arising therein. But however that may be,
a judge who has once heard the cause upon its merits in the court
of first instance is certainly disqualified from sitting in the
circuit court of appeals on the hearing and decision of any
question in the same cause which involves in any degree matter upon
which he had occasion to pass in the lower court.
In the present case, all the decrees and orders of Judge Pardee
in the circuit court, as well as the decree of Judge Swayne, from
which the appeal in question was taken, were made in, and entitled
of, the original cause of the bill in equity to foreclose the
mortgage of the Texas Central Railway Company. The order appointing
Dillingham and Clark receivers upon the filing of the bill, the
order allowing Dillingham, for his services as receiver, the sum of
$150 a month from his taking possession, and "while he gives his
personal attention to the business of the company, or until the
further order of the
Page 174 U. S. 158
court," the final decree of foreclosure and sale, and the
decrees for delivery of possession to the purchasers, were all made
by Judge Pardee, and the appeal, in the hearing and decision of
which he took part, from the decree of another judge concerning the
compensation of Dillingham as receiver, involved a consideration of
the scope and effect of his own order allowing that receiver a
certain sum monthly.
The necessary conclusion is that Judge Pardee was incompetent to
sit on the appeal in question, and the decree in which he
participated was not made by a court constituted as required by
law, and therefore this Court, without considering whether that
decree was or was not erroneous in other respects, orders the
Decree of the circuit court of appeals to be set aside and
quashed, and the case remanded to that court, to be there heard and
determined according to law by a bench of competent
judges.