Circuit judge

“ The action of the judge in the latter act depends upon the question whether or not he deems it advisable that the circuit judge of another circuit shall be called in; in the former it is made the duty of the judge, on the application of either party, to cause the fact to be entered in the records of the court, and to make the order of removal. In the latter act it is also discretionary with the judge requested to hold this circuit. The condition of his own circuit may render it inexpedient, or his refusal unavoidable ”

“ We think the charge of the circuit judge on this subject, in connection with the testimony, was sound, and that it cannot be made much clearer by amplification. The judgment of the circuit court is therefore affirmed. ”

“ The earliest assignments in the Second Circuit were thus limited-not only the one assigning the Senior Circuit Judge already noticed, but also those assigning other Circuit Judges. It is easily conceivable that there may be compelling reason in the public interest to make an assignment for a particular case, or for one of several divisions of the court, or for a limited period such as thirty or sixty days. The section makes the public interest, as found by the assigning authority, the criterion. ”

“ For to do so would be to imply that Congress prohibited some circuit judges from participation in the most important function of the 'court' (the hearing and the decision of appeals) , though allowing all of them to perform the other functions. Such a prohibition as respects the ordinary responsibilities of a judicial office should be inferred only under compelling necessity, since a court usually will consist of all the judges appointed to it. That necessity is not present here. The ambiguity in the statute is doubtless the product of inadvertence. ”

“ Unaffected as the Judiciary Act is by the latest of the three acts mentioned, the law still is that if the suit is commenced against an alien in a State court, he may file a petition for the removal of the same for trial into the next Circuit Court to be held in the district, at the time of entering his appearance in such State court. Non-resident defendants or alien defendants may also remove certain causes from a State court into a Circuit Court for trial, under the intermediate act of Congress, as before explained. ”

“ The circuit court discharged the petitioners upon their own recognizances. It was error to discharge them, and thereby interfere with their trial in the state court. As already indicated, the circuit court, sitting in equity, was without jurisdiction to prohibit the institution or prosecution of these criminal proceedings in the state court. ”

“ The Court has, however, in fact allowed appeals from orders granting and denying pre-indictment motions, [2] and these dispositions have given rise to explanatory dicta that lend support to the rule developed in the Second Circuit. [3] Not only disagreement among the circuits but dubieties within them demand an adjudication based upon searching consideration of such conflicting and confused views regarding a problem of considerable importance in the proper administration of criminal justice. ”

“ They, perhaps, manifest the opinion of the legislature, that the jurisdiction was in the Circuit Courts; but ought, we think, to be construed to give it, if it did not previously exist. Any other construction would destroy the effect of those words. The District Court cannot take cognizance concurrent with the Circuit Courts, unless the Circuit Courts can take cognizance of the same suits. For one body to do a thing concurrently with another, is to act in conjunction with that other; it is equivalent to saying, the one may act together with the other. ”

“ The writ of error was allowed and sealed on June 5, 1891. It is contended that we are without jurisdiction, because, by the act creating the circuit courts of appeals, the court of appeals for the Eighth circuit has alone jurisdiction of this controversy. ”