delivered the opinion of the Court.
These cases exhibit an acute .controversy between the Senior Circuit Judge of the Second 'Circuit and the District Judges of the Southern District of New York respecting the authority of a judge specially assigned to that district — particularly the Senior Circuit . Judge when so assigned — to entertain an application for the appointment of receivers ki a suit in equity.
Among the rules of the District Court for that district was one whereby a particular trust company was designated as a standing receiver in bankruptcy, and effect was given to that rule in all bankruptcy proceedings. There was no such rule respecting receivers- in suits in equity, and the District Judges all regarded themselves as free in appointing such receivers to select any individual or trust company deemed competent and suitable for the particular task. Rut not infrequently they selected as an equity receiver the trust company which was designated by rule as a standing receiver in bankruptcy proceedings. The nature and importance of the equity receiverships for which a trust company was selected are not clearly disclosed in this récord, but it is reasonably apparent that in no instance was the receivership at all comparable in scope or importance with the railroad receivership with which the present litigation is concerned.
In 1930 the Senior Circuit Judge, acting under 28 U.S.C., § 22, and reciting that the public interest required it, assignéd himself to hold at any-time a session or sessions of the District Court for that district, for the pur-' pose of trying causes and entertaining and disposing of any matter which might come before him. :
In June, 1932, at the suggestion of counsel in an intended suit in equity for the appointment of receivers for the Fox Theatres Corporation, the Senior Circuit Judge
This action of the Circuit Judge was followed a few days later by the adoption and promulgation by the District Judges of two new rules, known as 1-a and 11-a, effective July 1, 1932, and apparently designed to limit or restrict the action of assigned judges in that district. These rules will be set forth later on.
August 25, 1932, counsel representing the parties in an intended suit in equity by the American Brake Shoe and Foundry Company against the Interborough Rapid Transit Company, informed, the Senior Circuit Judge that an application for the appointment of receivers would be made in that suit, and laid before him an affidavit, entitled therein, alleging generally that a trust company or other corporation would not be a suitable receiver, and particularly that the defendant company’s complicated and involved daily operations, its enormous staff of operating officials and employees, its contracts and relations with the City of New York, and the use of its facilities by the public, required that the receiver or receivers be a competent individual or individuals who could give constant and undivided attention to the matter. Thereupon the Senior Circuit Judge, conceiving that a District Judge might select a corporate receiver and that this would be unwise and should be prevented,
1
concluded to assign, and did assign, himself to hold a District Court for the Southern District, “ particularly to hear and determine all applications and proceedings” in the intended
The statute referred to in the two assignments provides: “ Sec. 22. The Chief Justice of the United 'States, or the circuit justice of any judicial circuit, or the senior circuit judge thereof, may, if the public interest’requires, designate and assign any circuit judge of a judicial circuit to hold a district court within such circuit... . ."
“ During the period of service of any-:judge designated and assigned under this chapter, he shall have all the powers, and rights, and perform all the duties, of a judge of The district, . - . . to which he has been assigned (excepting the power of appointment to a statutory position or of permanent designation of newspaper or depository of funds).”
The new rules adopted by the District Judges declare:
“ 1-a.. Any judge designated to sit in the District Court ■for the Southern District of New York, shall do such work only as may be assigned to him by the senior district judge.”
“ 11-a. All applications for' the appointment of receivers in equity .causes, in bankruptcy causes and any^ other causes (except a receiver in bankruptcy may be appointed by a ■ referee as provided in the Bankruptcy Rules), shall be made to the judge assigned [meaning assigned by the District Judges in their division of business] to hold the Bankruptcy and Motion Part of the business of the court and to no other judge.”
Immediately after making the assignment last mentioned, the Senior Circuit Judge turned to 28 U.S.C., § 27, which declai.es: (
“ In districts having more than one district judge, the judges may agree upon a division of búsiness and assign- ■ment of cases for trial in said district; but in case they do not so agree., the Senior Circuit Judge of the Circuit in which the district lies shall make all necessary t orders for "the division of business and the assignment of cases for trial in said District”;—
and he th,én made and signed the following order:.
“And whereas, Martin T: Mantón, a Circuit Judge of the Second Judicial Circuit of the United States designated and assigned to hold a District Court iii the-South-ern District of New York in said Circuit, and acting as District Judge for the Southern District of Néw York in this Second Judicial Circuit, does not agree upon the division of business and assignment of cases for trial in the Southern District of New York, as provided in and, pursuant to the, rules of court for the Southern District of New York, heretofore adopted by; the then United States District Judges for the Southern District of New-York; it is hereby • .
“ Ordered, adjudged and decreed that, for. a period ¿of thirty days beginning with this day, all applications for the appointment of receivers in equity causes in the Southern District of New York may be'made not only to the district judge designated to hear such application 'pursuant to Rule 11-a of the General Rules pf the District Court Tor the Southern District of New York, but also to Martin T. Mantón, Circuit Judge designated to act as District Judge to hold a District Court for the Southern District of New York.” - • ■
That order was filed and entered in the District Court, and on August 26 the American Brake Shoe and Foundry Company filed therein its bill of complaint against the Interborough Rapid Transit Company, togethei with the affidavit before mentioned. The bill disclosed that the plaintiff was a simple contract creditor, suing on its own behalf and on behalf of all other creditors who might choose to join in the suit, and that the defendant was en
The suit plainly was within the jurisdiction of the District Court as a federal court. The parties.were citizens of different states and the amount or value in controversy was in excess of the minimum prescribed in the jurisdictional statute.
Immediately after the bill was filed the defendant appeared and, conformably to a resolution of its -board of directors, answered the bill, admitted the allegations therein, joined in the plaintiff’s prayer and consented to the appointment of receivers.
The receivers took possession of the properties and have since been operating them under orders -made from time to time by the Senior Circuit Judge in that suit.
September 6, the Manhattan Railway Company.- petitioned for leave to intervene as a defendant in the Inter-'" ..borough receivership,suit and.set forth in the petition many facts showing the Manhattan’s serious' financial embarrassment; and alleged that it owned a substantial part of the property held and operated by the Inter-borough Company and included in the- receivership, and that the same was held and operated by the Interborough Company under a lease, from the Manhattan Company. The petition referred to and claimed the benefit of various provisions in the lease defining the obligations of the Interborough Company thereunder,, and pointed but that* in several particulars the Interborough had made default in the performance of its obligations and that these defaults were admitted; by the Interborough’s answer. The petition prayed that the Manhattan Company be made a party defendant in the receivership.suit for the protection of its interests and those of its creditors; that the receiver- ■ ship be extended so -as to embrace the interest of the Manhattan Company, but without prejudicing or impairing
Several committees representing' different groups of creditors, some of the Interborough Company and others of the Manhattan Company, were permitted to intervene and become parties,, and many orders were made relating to the employment of counsel for the receivers and the' conduct of the receivership.
On the return day of the rules to show cause the parties and many others in interest appeared and were heard by the Senior Circuit Judge; but Benjamin F. Johnson and Lillian Boehm, to be mentioned presently, were not among those, who appeared. Both refrained from participating in the hearing or otherwise appearing in the suit. As a result of the hearing, the Senior Circuit Judge, on September 28, made an order or decree continuing the receiverships of the Interborough and Manhattan during the further pendency of the suit.
In the meantime another separate suit for the appointment of receivers of the Manhattan and Interborough companies was commenced, and that suit needs now to be described.
On September 21, Benjamin F. Johnson, a minority shareholder of the Manhattan Corppujiy, filed in. the Dis
On the same day, September 21, Lillian Boehm was given leave, by the District Judge sitting in the motion part of the court, to intervene as a party plaintiff in Johnson’s suit, which she did. She was a stockholder in the Manhattan Company and a secured creditor of the Interborough Company. In her bill of intervention she asserted there was imperative need for the appointment of a receiver to take charge of and to preserve the property of the Interborough Company, continue the operation of its railroad system for the accommodation of the public, and collect and properly appropriate the .fincóme thereof until the final decree; assailed the orders of the Senior Circuit Judge in the American Brake Shoe Company’s suit upon the same grounds that were set forth in Johnson’s bill; and joined in the- prayers of his bill.
Johnson and Boehm both subsequently filed petitions supplemental to their original bills and in these supplements the Senior Circuit Judge’s order of September 28,
In their bills and supplements Johnson and Boehm also complained that the receivers appointed for the Inter-borough and Manhattan companies in the earlier suit of the American Brake Shoe Company had theretofore had, or then had, relations with the Interborough and Manhattan Companies and with particular, groups of the creditors of ohe or the other of those companies which would, tend to prevent them from discharging their duties impartially and with due regard to the rights of all who were parties in interest. Rut there was no claim that either Johnson or Boehm had presented this complaint in the suit wherein the receivers were appointed and in yhich they were acting.
In the Johnson suit Johnson and Boehm separately procured, from the District Judge sitting in the motion part of the court, rules requiring the defendants in that suit to show cause on October 4 why orders should not be granted vacating (1) the Senior Circuit Judge’s assignment of himself to sit in the District Court to hear matters in the American Brake Shoe Company’s suit, (2) his division-of-business order directing that applications for the appointment of receivers in equity might be made to. him,, ana (3) his several orders in the American Brake Shoe Company’s suit, including those appointing receivers; and why independent receivers for the Manhattan Company, and likewise for the Interborough Company, should not be appointed in the Johnson suit.
On the return day of these rules to show cause the parties appeared before the District Judge sitting in the
The outcome of the hearing was that the District Judge held that the Senior Circuit Judge’s assignment of himself to the District Court to hear and determine all matters in the American Brake Shoe Company’s suit was void, because, even if empowered by § 22 to make a general assignment of himself to hold the District Court, he was without authority to make a selective assignment, as by designating the cáse which he was to hear or the part of the court in which he was to sit; that his division-of-. business order was void, because under § 27. a failure of the District Judges to agree upon the-division of business is a condition precedent to action on that subject by-the Senior Circuit Judge, and there had been no such failure to agree; that rules 1-a and 11-a of the District Court are valid and operate to limit the jurisdiction of all judges assigned to the District Court, whether they be District Judges'or Circuit Judges, and as the c. ders of the Senior Circuit Judge in' the American Brake Shoe Company’s suit were all made in contravention of those rules they were void; and that these orders could not be supported on the theory that he was a de facto judge, for he was not such but merely an intruder.
2
The District
On appeals to the Circuit Court of Appeals the consolidating decree and the vacating decree were both reversed.3 Johnson and Boehm then separately petitioned this Court for a review on certiorari and the petitions were granted.
Counsel for petitioners, now assume that in' granting the petitions this Court intended to review the decision of the Circuit Court of Appeals on the appeal from the .consolidating decree, as well, as its decision on the appeal from the vacating.decree; but the assumption is without any basis. In the petitions complaint was made of. the reversal of the vacating decree, but not of the reversal of the consolidating decree; and the reasons advanced to obtain a review related only to the reversal of the vacating decree. Plainly the petitions sought a review of the latter, and of it only; and obviously the review granted was not intended to be broader than that sought in the petitions.
In turning to the particular questions presented the Circuit Court of Appeals accurately and concisely observed:
“ The controversy does not touch the substantial relief asked by any of the parties; all acknowledge that the tworailways are in such.financial straits that a court of equity must take over their assets, to prevent their dismemberment by execution, attachment and the like. The plaintiffs, and those who have intervened, [in the Johnson suit] ask for receivers, just as did the parties to the American Brake ,Shoe Company suit. The dispute touches merely who shall be the receivers, and who the judge' to have charge of the receivership.”
One question claiming attention is whether the attack made in the Johnson suit on the orders in the American Brake Shoe Company suit was direct or collateral The suits were distinct, although directed, to the same main end. Johnson purposely brought his suit as a separate and independent suit and Boehm purposely intervened in it as such. Both were invited by the orders in the other suit to appear therein and show cause, if any they had, why the temporary receivership should not be continued. Had they appeared they would have been entitled to object that the judge sitting at the time was acting without authority or in contravention of applicable court rules, and to object that the persons temporarily named as receivers were not suited to the task and ought not to be continued; and had the receivership been continued without giving effect to these objections they would have been entitled to appeal. 4 In thus seeking a correction of errors claimed to have been committed in continuing the receiverships they would have been engaged in a direct attack. But they chose to make the objections in a distinct receivership suit of their own, not on any recognized equitable ground, such as fraud, imposition, or mistake, but on the ground of alleged error. In this they were engaged in’ a collateral attack. That their suit was brought in the
. The District Judge, as shown in his opinion, was in .doubt whether the attack was direct or collateral, but conceived that the doubt could be removed and the attack made direct by ordering a consolidation of the two suits, which he did on his own motion over objections by the parties to the American Brake Shoe Company suit. The. order of consolidation has "since been reversed by the Circuit Court of Appeals; but, quite apart from the rey versal, the consolidation did not alter the nature of ftfte attack. Under the statute, 28 U.S.C., § 734, consolidation is permitted as a matter of convenience and economy in administration, but does not merge the suits into a
Next in order are the questions respecting the Senior Circuit Judge’s assignment of himself to sit in the District Court to hear matters in the American Brake Shoe Company .suit. The. statute, 28 U.S.C., § 22, provides that the Chief Justice, or the Circuit Justice of the circuit, or the Senior Circuit Judge thereof, may, “ if the public interest requires,” designate ánd assign “any circuit judge ” of the circuit to hold a district court therein. The .same authority, to'assign that is given to the Chief Justice And the Circuit Justice, respectively, is also given to the Senior Circuit Judge; and that authority is to assign “ any circuit judge ” of the particular circuit. There are no restrictive words. There can be no-doubt that under this section the Chief Justice may assign the Senior Circuit Judge of the circuit, he being one of the Circuit Judges thereof; and equally there can be no doubt that the Circuit Justice may do the same. -May the Senior Circuit Judge assign himself? The words of the section, taken literally, mean that he may do so; and only by implying restrictive words which are not there can the section be held to mean otherwise. But the real meaning is not reflected alone in the words of the section, for there are other considerations which point to the literal meaning as the time one.
Section 22 was first enacted as part of the Judicial Code, effective January 1, 1912, which abolished the old Circuit Courts and transferred their jurisdiction to the District Courts. When the proposed code was pending before the Congress differences of opinion arose over the proposed abolition of the Circuit Courts. There was op
Since the Judicial Code went into effect it has been the practice of most of the Senior Circuit Judges to assign themselves, as well as other Circuit Judges, to sit in District Courts within their circuits whenever they deemed that the public interest required it. The practice was initiated early in 1912 by the then Senior Circuit Judge for the Second Circuit and has been followed by each of his four successors. In the other circuits the Senior. Circuit Judges, with a notable exception
10
adopted that
Early in 1912 the Senior Circuit Judge of the Second Circuit assigned himself to sit in a District Court to' hear matters arising in a specified receivership suit. While he was sitting in that suit an intervener challenged his authority to make the assignment or ■ act under it. A hearing was had on the question, after which the judge in a considered opinion, published at the time,
11
upheld the assignment and denied the motion presenting the chal
The practice of the Senior Circuit Judges here described and the decision just mentioned amounted to a practical construction of the provision in question in keeping with its literal meaning. In 1922, after that construction had prevailed and been acted on for several years, the.provision was reenacted by the Congress as part of an act dealing with other assignments of judges to the District Courts. 12 The reenactment was without any change indicative of a disapproval of the prior construction by the Senior Circuit Judges. In' such ' circumstances, as this Court often has pointed out, reenactment operates as an implied legislative approval of the prior construction— in other words, as a reenactment of the statute as before construed. 13
It is said that § 22 gives no authority for making a selective designation, as by designating the case which the assigned judge is to hear or the part of the court in which he is to sit. To this assent cannot be given. It has no support in the'.words of .the section, is contrary to the plain import of the legislative proceedings before noticed, and is opposed to the settled .practice of the Senior Circuit Judges. Assignments to hear particular cases have been made in all the circuits. Such an assignment was involved in
United States
v.
Gill,
The District Judge did not rule on the part of the attack wherein it was. contended that the assignment was invalid because there was no public interest requiring it; but the Circuit Court of Appeals rejected the Contention on the ground that the recital or finding in the assignfnent that public interest required it is conclusive in this proceeding. Plainly the Circuit Court of Appeals was right. By § 22 the decision as to a requiring public interest is left tp, the one having the power to assign. The duty and the responsibility are with him — as well when he is a Senior Circuit Judge as when he is the Chief Justice or a Circuit Justice. . His'decision that there is a requiring public interest is not open to a collateral attack such as is here presented. 14 And were it so open, no litigant could with any safety submit any matter to an’ assigned judge — a situation which would involve intolerable uncertainty and embarrassment to both public and private interests.
It follows from the views already expressed that there was no jurisdictional infirmity in the Senior Circuit Judge’s orders in the American Brake Shoe Company suit, unless such an infirmity arose from his disregard of rules 1-a and 11-a of the District Court. His status when making the orders was that of a Circuit Judge specially assigned to and sitting in the District Court to hear and determine all applications and proceedings in the suit wherein the orders were made; and his powers and duties
One of the rules disregarded, 1-a, provides that an assigned judge shall “do.such work only ás may be assigned to him by the senior district judged’ In this there is an attempt to invest the senior judge of the district with a discretion to determine what work an assigned judge shall do, and also an attempt to exclude him from any other work. Here the Circuit Judge was sitting in the District Court under an assignment specially designating the work which he was to do. The rule says in effect that this work could not be done by him unless the senior1'judge of the district approved the special designation; and it means that this judge may either approve or disapprove. In short, it attempts to give him a power of veto over the designation and thus to interfere with the work specified. By statute, 28 U.S.C., § 731, the power of the District Courts to make rules is confined to such as are “ not inconsistent with any law of the United States ”; and it obviously would be thus limited even without the statute. 17 Not only does § 22 authorize a special assignment such as is shown here, but § 23 requires the assigned judge to discharge the duties for which hé is so assigned. It is apparent, therefore, that, as applied to such an assignment* the rule operates as an interference with the discharge of those duties and is in that regard inconsistent with §§- 22 and 23 and invalid.
The other rule which was disregarded, 11-a, provides, that all applications for the appointment of receivers in
What has been said1 shows that the collateral attack cannot succeed and that the decree of the Circuit Court of Appeals must be affirmed.. But in the interest of right judicial administration, and to avoid any misapprehension as to what is here decided, something more needs to be said. -
The possession of power, is one thing; the propriety of its exercise in particular circumstances is quite a different thing. This is true of the power of a Senior Circuit Judge to assign himself to sit in a particular case in a District Court. In its very nature this power is one which should be sparingly exercised, and then only in special exigencies and with commensurate care and discretion. The occasions are rare in which the' matter cannot be referred to the Chief Justice or the Circuit Justice and committed to his consideration and judgment. A receivership is not grantable as of course, but only for reasons strongly appealing to the judge to whom the application is made. When large properties are involved a receivership usually involves widely conflicting interests and presents questions fraught with difficulty and exceptional delicacy. This was tfue of the receivership here in question. Jt involved properties, estimated to approximate $500,000,000 in value, which were held and used by a public carrier em
n . Decree affirmed.
Notes
See
American Brake Shoe & Foundry Co.
v.
Interborough Rapid Transit Co.,
28 U.S.C., §
227; Christian
v.
R. Hoe & Co.,
63 F. (2d) 218;
Mitchell
v.
Lay,
48 F. (2d) 79, 84, 85; Kingsport Press v.
Brief English Systems,
54 F. (2d) 497;
Pacific Northwest Packing Co.
v.
Allen,
Cohen
v.
Portland Lodge,
Central Republic Bank v. Caldwell, 58 F. (2d) 721, 729.
1 Freeman on Judgments, 5th ed., §§ 305-308, 315; Vanfleet on Collateral Attack, §§ 2, 3.
Dowell
v.
Applegate,
Toledo, St. L. & K. C. R. Co.
v.
Continental Trust Co.,
Congressional Record, Vol. 45, part 4, pp. 3547, 3999, 4000; Vol. 46, part 1, pp. 302, 303; Vol. 46, part 1, p. 840; Vol. 46, part 3, p. 2138; Vol. 46, part 3, pp. 4003, 4004; Vol. 46, part 4, p. 4006.
Circuit Judge Walter H. Sanborn was long the Senior Circuit Judge of the Eighth Circuit and during much of that period the Justice delivering this opinion was the Circuit Justice for that
In 1912 Judge Sanborn was requested by the other Circuit Judges in that circuit and by the District Judge who was specially concerned, to take charge of an important railroad receivership suit in one of the districts within the circuit. Judge Sanborn indicated that he would be willing to undertake the service if he were assigned thereto by the' Chief Justice or the Circuit Justice, but that he was quite unwilling to assign himself to the District Court for the purpose, because such an assignment would have a personal side approaching impropriety. One of the Circuit Judges and the District Judge of the particular district then applied to the Circuit Justice to make an assignment of Judge Sanborn, which was done. Judge Sanborn’s indisposition to assign. himself continued; and in like circumstani'es he was assigned by the Circuit Justice to District Courts in that circuit on twelve different occasions in the years 1912 to 1923, each assignment being limited to a particular year but otherwise general. The receiverships of the Wabash Railroad and the St. Louis & San Francisco Railroad were among the matters which came before Judge Sanborn under those assignments.
Judge Sanborn’s successor as Senior Circuit Judge accepted and conformed to the general practice.
Pennsylvania Steel Co.
v.
New York City Ry. Co.,
Act of Sept. 14, 1922, c. 306, 42 Stat. 837.
Old Colony R. Co.
v. Commissioner,
People
v.
Ballard,
Wallace
v.
Anderson,
High on Extraordinary Legal Remedies, 3d ed,,' § 604.
Washington-Southern Navigation Co.
v.
Baltimore & Philadelphia Steamboat Co.,
See
Appleton v. Smith, 1
Fed. Cas. No. 498, p. 1075;
Cole Silver Mining
Co. v.
Virginia & G. H. Water Co.,
6 Fed. Cas. No. 2990, pp. 72, 74;
Hadden
v.
Natchaug Silk Co.,