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JUSTICES BROWN, White and PECKHAM, dissenting.

the officers are supposed to be present and in readiness, should the judge appear. Bouvier says (Law Dict.) in giving a definition of the word “court” and the different styles of court, 66 that the one common and essential feature in all courts is a judge or judges—so essential, indeed, that they are even called the court as distinguished from the accessory and subordinate officers.” So, too, in Bacon's Abridgment, a court is defined as an incorporeal political being, which requires for its existence the presence of the judges.

Thus in State v. Judges, 32 La. Ann. 1261, it is said: “The court is an incorporeal political being, which requires for its existence the presence of the judges, or of a competent number of them, and a clerk or a prothonotary, at the time during which and at the place where it is by law authorized to be held, and the performance of some public act indicative of a design to perform the functions of a court.” A similar definition is given in the Lawyers' Tax Cases, 8 Heisk. 650. So in Schoultz v. McPheeters, 79 Ind. 376, discussing the powers of a master commissioner, the court is said to be “a tribunal organized for the purpose of administering justice, and presided over by a judge or judges.” So a court is defined in Mason v. Woerner, 18 Mo. 570, to be a tribunal established for the public administration of justice, and composed of one or more judges, who sit for that purpose at fixed times and places, attended by the proper officers. And in White County v. Gwin, 136 Ind. 562, a court is defined as consisting of persons, officially assembled at a time and place fixed by law for the administration of justice, although a judge alone does not constitute a court.

Gold v. Vermont Central Railroad Co., 19 Vt. 478. But the presence of a judge is indispensable. Hobart v. Hobart, 45 lowa, 503; Levey v. Bigelowo, 6 Ind. App. 677; Michigan Central R. R. v. Northern Indiana R. R., 3 Ind. 245.

In Davis v. Township of Delaware, 41 N. J. Law, 55, where the question arose as to the validity of a verdict taken by a crier in the absence of the judge and clerk, it was held that the verdict so taken was entirely invalid. “It seems a profitless labor to discuss so obvious a proposition.” “No verdict therefore is valid unless given openly in court.” It was held, how


ever, in that case that the record of the court, showing the verdict of the jury to have been returned into the court, imported absolute verity.

So, too, in In re Terrill, Petitioner, 52 Kan. 29. This was a writ of habeas corpus in which the prisoner, convicted of murder, claimed his release, because his trial was had at a time not authorized by law. It appears that the judge was not present at the time and place when the term should have begun, nor for several days afterwards, and after several adjournments the clerk attempted to adjourn the court, until a later day, when the judge appeared and the prisoner was tried. It was held that the failure of the judge to appear and open court upon the day appointed resulted in the loss of the term, and that the proceedings were absolutely void. Said the court: “ There is ample power in a court which has been regularly convened to adjourn to a future time, provided it be not beyond the term; but in the absence of a statute authorizing it, the clerk or other ministerial officer cannot act for the judge in either opening or adjourning court. The clerk is a ministerial officer, and, with

. out statutory authority, can exercise no judicial functions. The opening, holding and adjournment of court are the exercise of judicial power to be performed by the court. To perform the functions of a court, the presence of the officers constituting the court is necessary, and they must be present at the time and place appointed by law.

* To give existence to a court, then, its officers and the time and place of holding it, must be such as are prescribed by law. Hobart v. Hobart, 45 Iowa, 503. There being no authority in law for the clerk to open and adjourn the court, the consequence of the failure of the judge to appear upon the day appointed for holding court was the loss of the term.”

The citation of these authorities, however, appears to be quite unnecessary in view of the express provision of the act of 1887, that no fees for attendance in court shall be payable except for days when the court is opened by the judge for business.

The exhibits to which reference was made in the findings of fact are in the following form:


JUSTICES BROWN, White and PECKHAM, dissenting.

“ Exhibit A.


“United States Circuit Court, District of Kentucky. “May term, Monday, October 15th, A. D. 1894. “ Court met. Present: Hon.

Circuit (or Dis
trict) Judge.
“ Julius C. Lang, Admr.,

The Ches. & Ohio R. R. Co. et al.

“This cause coming on to be heard upon the motion of the Chesapeake and Ohio Railway Company for writ of certiorari and for a rehearing upon the motion to remand, the court hav. ing considered said motion and the affidavit filed herein, and the original petition for removal herein having been exhibited to the court, and being now duly advised, it is ordered that the clerk of the Kenton Circuit Court at Independence, Ky., be, and he hereby is, directed and ordered to make and transmit to the clerk of the United States Circuit Court for the District of Kentucky, at Covington, Kentucky, a true and correct trainscript of the papers and proceedings in this case. The order remanding the case is now set aside and a rehearing of the inotion to remand is hereby granted and is set for Saturday, October 20th, A. D. 1894, at 10 o'clock A. M. in chambers, at Cincinnati, Ohio.

“It is now ordered that court stand adjourned until Friday, November 2nd, A. D. 1894."

(The others are in form like unto this.)

It will thus be seen that, while the form of the journal entry showed an exact compliance with the law, the findings of fact show that it was a mere form, and that the facts found by the court were wholly inconsistent with the proceedings as they appear upon the journal, and were presented to the accounting officers. The form shows that the court met. It did not meet. That the circuit or district judge was present. He was not present. That a certain cause in each case came on to be beard and that an order was made in such cause, none of which took place at the time or place indicated; but the order was made


and transmitted by mail to the clerk. The final entry is that the court stands adjourned until a definite day, when the actual fact was that the day to which adjournment was made was left blank, and when another such order, decree or proceeding was received to be entered, such blank was filled with the date on which it was received, and another entry similar to the above, opening and adjourning the court to a blank day, was made. From the nature and character of business transacted on the days on which the court was opened and adjourned as aforesaid, it appears that with scarcely an exception they were orders which might have been made and which in fact were made in chambers. While the judge in each case directed the order to be entered, he did not direct the court to be opened for that purpose.

Now, while as before stated, if the court be properly opened, no business need be done to entitle the officers to their attendance fees, and when authority to do so is given by statute, the clerk or marshal may open the court and adjourn it, we know of no authority under which a clerk may open court at his own will, when he may have some order to enter; nor do we know of any authority under which even a judge may open court without his personal presence, unless specially authorized to do so by statute. Under the practice pursued in this case the court might be opened every day in the year, provided some excuse be found in the shape of an order signed by a judge, though the work actually done in court might not have occupied ten days during the entire year.

The opening of a court is a solemn judicial act, and must be performed by the judge in person, unless special authority is given by statute for its performance by a subordinate officer. No such authority is found in this case. It is true that in United States v. Pitman, 147 U. S. 669, it was held that the officers were entitled to their attendance while waiting for the judge to appear. We said in that case that the court shoul. I be deemed actually in session within the meaning of the law, not only when the judge is present in person, but when, in obedience to an order of the judge directing its adjournment to a certain day, the officers are present upon that day, and the


journal is opened by the clerk, and the court is adjourned to another day by further direction of the judge.” This, however, was said with particular reference to the case under consideration, and is no authority for the practice pursued in this case, since the court was not opened in obedience to any order from the judge.

Great stress is laid in the opinion of the court upon the practice of the departments in this connection, and upon the finding that the present appellee in every account rendered by him since 1882 has charged for services similar to those set out in the account here in suit, and that such accounts were uniformly allowed and paid up to June 30, 1893. An inspection of the entries in this case will show the weight to be attached to this practice of the departments. When it appears upon the journal that the court met, that the judge was present, that an order was made in court, and that the court adjourned to a specific date, how are the accounting officers of the Treasury to know that such was not the fact? The practice of the departments to pay these bills might have continued for a century without anything to show that they were apprised of the actual facts appearing in the findings, and no inference can be drawn from such practice. Had it appeared that in such cases the facts set forth in these findings bad been called to the attention of the accounting officers the rule would be different; but we fail to see how the practice could afford any justification for these charges. A practice like this is liable to throw one's notions of differences of form and substance into sad confusion. Fictions in pleading were long, and still are, tolerated in many cases, but we know of no definition of the word “fiction" which authorizes journal entries like this, based upon the findings shown in this case. Had the facts been actually stated in connection with these entries, we imagine the practice of the department would have been so quickly changed that no argument based upon it could have been made.

Petitioner in his brief claims his attendance under sections 574 and 638, fully set forth in the opinion of the court, which, construed together, declare that courts of admiralty and equity “shall be deemed always open" for the purpose of filing any

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