The opinion of the court was delivered by: LOVETT
The controlling question for decision in this case is whether the requirement of the Judiciary Act of September 24, 1789,
as amended, requiring judges of District Courts of the United States to "reside in the district * * * for which he is appointed" is applicable to the Chief Justice of the District Court of the United States for the District of Columbia.
The question arises in this way.
Plaintiff charges specifically that in violation of the statute mentioned
the Chief Justice has failed to reside in the Judicial District for which he was appointed, that, therefore, he has never been a de jure but only a de facto judge and has thereby improperly collected a salary from the United States and has, with each collection, committed a fraud against the United States.
Pursuant to the statute, 57 Stat. 608(C), supra, notice of the pendency of the suit was given to the United States and through the Acting Attorney General the United States has declined to enter the suit on the ground that in its opinion the complaint is without merit and here can be no recovery. Laughlin, therefore, proceeds with the suit alone.
In answer to the complaint, defendant has filed a motion to dismiss or, in the alternative, for a summary judgment on the ground that "the complaint fails to state a claim against the defendant upon which relief can be granted." In support of his motion for summary judgment and affidavit has been presented in which defendant concedes that he holds the Office of Chief Justice of the District Court for the District of Columbia and that he resides outside the District of Columbia, in Alexandria, Virginia.
Counsel have been fully heard and memoranda of authorities considered.
Plaintiff objects to the motion to dismiss, saying that the statute, 57 Stat. 608(B), supra, under which the suit is brought states that "* * * such suit * * * shall not be withdrawn or discontinued without the consent, in writing, of the judge of the court and the district attorney * * *." That language, in my opinion, only refers to voluntary dismissals and was intended to discourage the repeated bringing of suits which are without merit but which might be brought merely to satisfy the complainant's personal spleen and desire for revenge, and also to discourage private compromise settlements. The refusal of the Acting Attorney General to enter the suit may be taken as tantamount to the consent of the District Attorney to dismiss the suit. The consent of the Court is obtained if the motion is sustained. The statute will not interfere with the consideration of the motion.
The motion for summary judgment is objected to on the grounds that no answer has been filed. Under the Rules of Civil Procedure, Rule 15(b), 28 U.S.C.A. following section 723c, however, the defendant's supporting affidavit can probably be considered in place of an answer, or, if a formal answer should be required, it may be filed by amendment any time, even after final judgment.
When the original Judiciary Act of 1789 became law, there was, of course, no District Court for the District of Columbia. Indeed, there was no District of Columbia, though the Constitution provided that Congress might create such a district for the seat of the national government. It was not until 1863, 12 Stat. 763, that a court for the District was set up -- first known as the "Supreme Court of the District of Columbia", and it was so known until 1936 (49 Stat. 1921) when the name was changed to District Court. The question, therefore, narrows itself to a consideration of amendatory legislation touching the residence of the judges.
Section 1 of the Judicial Code, 28 U.S.C.A. § 1, defines "District Court" by reference to Chapter 5 of the Judicial Code. Consideration of the definition of "District Court" and "District Judge" shows that this section has no application to the defendant and his fellow justices. Chapter 5, 28 U.S.C.A. § 141 et seq., which establishes the various judicial districts does not include the District of Columbia.
While the District Court for the District of Columbia is similar to the district courts throughout the country for most purposes,
it is not a district court within the meaning of the provision of the Judicial Code involved in this case. The provisions for the establishment of the District of Columbia Court are found, not in the United States Code, but in the code of the District of Columbia, Section 11 -- 301 et seq. ...