CHAPTER V

UNITED STATES CIRCUIT COURT OF APPEALS AND UNITED

STATES CIRCUIT COURT (Abolished)

We have seen the development of the United States Supreme Court from the early years when, often, there were no cases on the docket, to the time when its docket became crowded and when in many cases the whole country waited with almost breathless expectancy the court's dicta of farreaching influence and importance. Under the provisions made for the appeal of cases from the inferior tribunals, the growth of Federal court procedure has more than kept pace with the increase in population and with the development of closer relations between the States. During the twenty years following the close of the Civil War it became apparent that the court's docket was assuming proportions threatening indeed to the reasonable and due despatch of important cases. Not a little hardship was experienced by litigants whose cases were of such a nature that they could not be advanced for hearing except as a last resort on the plea that they had been frequently passed over in behalf of cases which had been deemed of greater public importance. Thus all classes of litigation suffered much inconvenience, and discontent and impatience were shown by court, counsel and litigants alike.

To relieve the rapidly increasing congestion of court business, Congress, on the third of March, 1891, passed an act to create intermediate tribunals of appellate jurisdiction to which the name of United States Circuit Court of Appeals was given. The original bill as proposed in the House of Representatives provided not only for the abolishment of the Circuit Courts and the assignment of all original jurisdiction to the District Court but it provided that a large part of the Supreme Court docket should be turned over

for disposal by the newly created appellate tribunals. At this time there were more than 1700 cases awaiting disposition on the highest court's docket and it was estimated that four years' work applied to these cases exclusively would be necessary to dispose of them. A joint conference in the Senate and House, however, resulted in none of these things, and the bill passed creating the courts as they are now. Many ingenious suggestions were introduced during the debate. Representative Breckinridge, of Kentucky, thought there was no need of either Circuit Courts or Circuit Courts of Appeals. What he would have was an intermediate Appellate Court sitting in Washington to relieve the Supreme Court directly and at close hand, and to give to the District Courts all original jurisdiction not reserved to the highest court by the Constitution. Circuit Courts he would abolish, and he prophetically declared if the Fifty-first Congress didn't do it some future Congress would. It will be seen that the Sixty-first Congress has done so (1910–1911). Neither the original draft of the House bill nor the alterations proposed by the Senate were satisfactory to both branches of Congress. The original bill was sent to the Senate in 1890. Amendments were made by the higher chamber which were referred to the House Committee on the Judiciary. That Committee reported non-concurrence with the Senate changes and asked that a conference be arranged. This was done and the result of the conference was that the House receded. The conferees of the House were Ezra B. Taylor and L. B. Caswell, and those of the Senate were William M. Evarts, George F. Hoar and James L. Pugh. The conference report as read in the House states:

The effect of the conference is to require the appointment of nine circuit judges, one in each circuit, instead of seventeen, as provided in the House bill, and to create a court of appeals consisting of two circuit judges and the Chief Justice or associate justice of the Supreme Court assigned to the circuit, while the House bill relieved the justice from this duty. The circuit courts retain original jurisdiction for the trial of causes, while the House bill confines original trials to the district courts. No causes now on the calendar of the Supreme Court are to be remanded to the court of appeals, as provided for in the House bill.

Representative Rogers who, for several years, had devoted time and attention to judiciary reform voiced the objections of many to the bill as amended by the Senate when he said on the floor of the House:

A vice of the present organization of the Federal judicial system is that there are eight circuit judges exercising original jurisdiction, and exclusive jurisdiction almost, over the great domain of civil litigation of all classes and kinds. These eight circuit judges are compelled, in the discharge of their duties to gallop all over the country, consuming a large proportion of their time in travel. To illustrate, take the eighth circuit, composed of Nebraska, Minnesota, Iowa, Missouri, Kansas, Arkansas, and North and South Dakota, all this vast domain, extending almost from the Gulf to Canada, is now in one circuit, presided over by a single circuit judge, and of course his time is very largely absorbed in travel, while his duties are discharged by the district judges.

Now, our bill sought to abolish the circuit courts as courts of original jurisdiction and thereby get rid of this evil, and confer all original jurisdiction on the district courts; then add one or more circuit judges to each circuit, and organize with these circuit judges one circuit court of appeals with appellate jurisdiction; but this bill intensifies the evil by assigning two circuit judges to each circuit to do the same kind of service, and gallop all over the country in the old way. To illustrate further the vice of this system, I think I speak within bounds when I say as to the four courts in my own State that no circuit judge or associate justice of the Supreme Court ever in his life, at any one time, spent more than two weeks in the State, and sometimes they do not go there for one, two or three years. The fact is that the whole circuit court system as organized now and as proposed by this bill is vicious and a failure.

Representative Rogers declared that the bill gave no relief to the Supreme Court, which was its primary purpose; on the contrary, that it would probably increase its already over-burdened docket. The bill would also make the Circuit Courts of Appeals, instead of organized, stable and independent tribunals, with one set of judges each, courts whose judges are constantly shifting because no judge can sit in any cause in the Circuit Court of Appeals wherein he had presided in the court below, whether circuit or district. Moreover, he contended, it converts the Supreme Court into an appellate court to try not capital cases only, but criminal cases of almost every class except misdemeanors of the lowest grades.

"If these evils were corrected," he said, "I would, from a sense of profound duty, even at the sacrifice of parting company with my political associates, support and vote for this measure."

Indeed there is reason to believe that opposition to a bill of any description which gave the president the opportunity of appointing a large number of new judges was interposed from party jealousy rather than from any scruples concerning the measure of relief granted to the Supreme Court. Because of the acute need for such relief, many senators and representatives supported the bill regardless of party affiliations, and others because they thought it doubtful if any bill would go through, should the present opportunity be lost.

The bill as finally passed and approved by the president provided for appeals from the District and Circuit Courts direct to the Supreme Court in the following instances only: (a) Where a question of jurisdiction is raised; (b) Final decrees in prize cases; (c) Cases of crime punishable by death; (d) Cases involving the construction or application of the Constitution, but not in cases involving the construction or application of acts of Congress; (e) Cases in which the constitutionality (only) of any law of the United States, or the validity or construction of a treaty, is drawn into question; (f) In cases in which the law of a State is claimed to be in contravention of the Constitution. The bill gave the Court of Appeals jurisdiction to review decisions of the District and Circuit Courts in all other cases, and provided that the judgments of the Court of Appeals shall be final in all cases—(a) in which the jurisdiction is dependent upon the character of the suitors as citizens or aliens; (b) in cases arising under the patent laws; (c) in cases under the revenue laws; (d) in cases under the criminal laws, and (e) in admiralty cases, other than prize. It authorized the Court of Appeals to certify to the Supreme Court questions of law, and the latter tribunal to review the whole case on such certification. It authorized the Supreme Court to require the Court of Appeals to send up for consideration any case

pending therein, and it authorized an appeal in all other cases to the Supreme Court from the Court of Appeals when the matter in controversy exceeded $1,000.

The report of the conference committee was agreed to after the debates, and the speaker and vice president signed the bill after which it was sent to the president and approved (March 3, 1891).

Strictly speaking the United States Circuit Courts of Appeals were courts without judges of their own. There are nine of these tribunals, one in each of the nine circuits into which the country is divided, and any circuit or district judge is eligible to sit. The act creating these courts originally provided that two circuit judges and a Supreme Court justice shall constitute the bench, the latter to be the presiding judge. It is now seldom, however, that a Supreme Court justice has the time to devote to the lower tribunal, and in his absence it is provided that three circuit judges may sit, in which event the senior judge presides. It is of frequent occurrence that at least one district judge is assigned to sit in the absence of a circuit judge, and it has happened, though rarely, that three district judges have made up the Circuit Court of Appeals bench in a sitting, when the senior district judge presides. Such a contingency could have been caused by the absence of the circuit judges or their disqualification due to presiding over a trial of the cause in the Circuit Court. All this possible intermixture of judicial duties has now been eliminated by the abolition of the Circuit Court and the elevation of the circuit judges to be judges of the Circuit Courts of Appeals; thus giving to the intermediate Appellate Court a more distinctive character than it had before. Two judges in the absence of a third may constitute a quorum, and it is less frequent than formerly in the Second Circuit (New York, Vermont, Connecticut) that four judges sit at one time. There were that number of circuit judges in New York when the Circuit Court was abolished and accordingly that number became available for the Circuit Court of Appeals. Most of the other circuits have had only two circuit judges but an addi