[29] in this country. This same kind of excuse of the defendant offering to protect the German people is the same kind of excuse offered by the pacifists in this country, who are against the United States, and have the interests of the enemy at heart by defending that thing they call the Kaiser and his darling people. You are the same kind of a man that comes over to this country from Germany to get away from the Kaiser and war. You have become a citizen of this country and lived here as such; and now, when this country is at war with Germany, you seek to undermine the country which gave you protection. You are of the same mind that practically all the German-Americans are in this country, and you call your selves German-Americans. Your hearts are reeking with disloyalty. I know a safeblower, he is a friend of mine, who is making a good soldier in France. He was a bank robber for nine years, that was his business in peace time, and now he is a good soldier, and as between him and this defendant, I prefer the safeblower.' "These defendants further aver that they have at no time defended the Kaiser, but, on the contrary, they have been opposed to an autocracy in Germany and every other country; that Victor L. Berger, defendant herein, editor of the Milwaukee Leader, a Socialist daily paper, Adolph Germer, National Secretary of the Socialist party, William F. Kruse, editor of the Young Socialists' Magazine, a Socialist publication, and J. Louis Engdahl, disapproved the entrance of the United States into this war. "Your petitioners further aver that the defendants Tucker and Engdahl were born in the United States, and were not born in enemy countries, and are not immediate descendants of persons born in enemy countries, but verily believe, because they are impleaded with Berger, Kruse, and Germer, that they as well as Berger, Germer, and Kruse cannot receive a fair and impartial trial, and that the prejudice of said Judge Landis against said [30] Berger, Germer, and Kruse would prejudice the defense of said defendants Tucker and Engdahl, impleaded in this case." The affidavit was accompanied by the certificate of Seymour Stedman, attorney for defendants, that the affidavit and application were made in good faith. The questions certified are as follows: (1) Is the aforesaid affidavit of prejudice sufficient to invoke the operation of the act which provides for the filing of affidavit of prejudice of a judge? (2) Did said Judge Landis have the lawful right to pass upon the sufficiency of the said affidavit of his prejudice, or upon any question arising out of the filing of said affidavit? (3) Upon the filing of the said affidavit of prejudice of said Judge Landis, did the said Judge have lawful right and power to preside as judge on the trial of plaintiffs in error upon said indictment? The basis of the questions is § 21, and the primary question under it is the duty and power of the judge,-whether the filing of an affidavit of personal bias or prejudice compels his retirement from the case, or whether he can exercise a judgment upon the facts affirmed, and determine his qualification against them and the belief based upon them. These alternatives present the contentions in the case. Defendants contend for the first; the United States contends for the second. The assertion of defendants is that the mandate of the section is not subject to the discretion or judgment of the judge. The assertion of the United States is that the motion and its supporting affidavit, like other motions and their supporting evidence, are submitted for decision and the exercise of the judicial judgment upon them. In other words, the action of the affidavit is not "automatic," to quote the Solicitor General, but depends upon the substance and merit of its reasons and the truth of its facts, and upon both the judge has [31] jurisdiction to pass. The issue is, therefore, precise; and, while not in broad compass, is practically of first impression as now presented. In Glasgow v. Moyer, 225 U. S. 420, 56 L. ed. 1147, 32 Sup. Ct. Rep. 753, the section was referred to, but not passed upon. In Ex parte American Steel Barrel Co. 230 U. S. 35, 57 L. ed. 1379, 33 Sup. Ct. Rep. 1007, the phase of the section presented here was not presented. There proceedings in bankruptey had progressed to a decree of adjudication, and the judge who had conducted them was charged by certain creditors with bias and prejudice, based on his rulings in the case. Such use of § 21 was disapproved. "It was never intended," it was said, "to enable a discontented litigant to oust a judge because of adverse rulings made, for such rulings are reviewable otherwise; but to prevent his future action in the pending cause." As pertinent to the comment and to the meaning of § 21, we may say that Judge Chatfield, against whom the affidavit was directed, said that he felt that the intention of § 21 was "to cause a transfer of the case without, statements,-a distinction to which we reference to the merits of the charge of shall presently advert. bias," and he did so immediately, in order, as he said, "that the application of the creditors" might "be considered as speedily as possible by such judge as" might "be designated." Another judge was designated, and, to restrain action by the latter and vacate the orders that he had made, and to command Judge Chatfield to resume jurisdiction, mandamus was sought. It was denied. The case establishes that the bias or prejudice which can be urged against a judge must be based upon something other than rulings in the case. The cases at circuit in which § 21 was considered have not much guidance. They, however, deserve attention. Ex parte N. K. Fairbank Co. 194 Fed. 978, may be considered as expressing power in the presiding judge to pass upon the sufficiency of the facts affirmed. In Ex parte Glasgow, 195 Fed. 780, the question came up [32] upon an application for a writ of habeas corpus, and it appeared that the affidavit of bias was not filed until after trial of the case, and when the court was about to pass upon a motion in arrest of judgment and new trial. It was held that § 21 was not applicable at such stage of the proceedings. Henry v. Speer, 120 C. C. A. 207, 201 Fed. 869, was a petition for mandamus to require an affidavit of bias against District Judge Speer, to be certified to the senior circuit judge, that the latter might determine its sufficiency, and to restrain Judge Speer from exercising jurisdiction of the case. The writ was refused on the ground that the affidavit did not conform to § 21, in that it omitted to charge "personal" bias, a charge of such bias, it was held, being a necessary condition. The court (circuit court of appeals for the fifth circuit), by Judge Meek, said: "Upon the making and filing by a party of an affidavit under the provisions of § 21, of necessity there is imposed upon the judge the duty of examining the affidavit to determine whether or not it is the affidavit specified and required by the statute, and to determine its legal sufficiency. If he finds it to be legally sufficient, then he has no other or further duty to perform than that prescribed in § 20 of the Judicial Code. He is relieved from the delicate and trying duty of deciding upon the question of his own disqualification." This comment sustains defendants' view of § 21, and marks a distinction between determining the legal sufficiency of the affidavit and passing upon the truth of its The cases (one being excepted), to the extent they go, militate against the contention of the government, and they have confirmation in the words of the section. Their declaration is that "whenever a party to any action or proceeding, civil or criminal, shall make and file an affidavit that the judge before whom the action or proceeding is to be tried or heard has a personal bias or prejudice [33] either against him or in favor of any opposite party to the suit, such judge shall proceed no further therein, but another judge shall be designated to hear such matter." There is no ambiguity in the declaration, and seemingly nothing upon which construction can be exerted,-nothing to qualify or temper its words or effect. It is clear in its permission and direction. It permits an affidavit of personal bias or prejudice to be filed, and upon its filing, if it be accompanied by certificate of counsel, directs an immediate cessation of action by the judge whose bias or prejudice is averred, and, in his stead, the designation of another judge. And there is purpose in the conjunction; its elements are complements of each other. The exclusion of one judge is emphasized by the requirement of the designation of another. But it is said that there is modification of the absolutism of the quoted declaration in the succeeding provision that the "affidavit shall state the facts and reasons for the belief" of the existence of the bias or prejudice. It is urged that the purpose of the requirement is to submit the reality and sufficiency of the facts to the judgment of the judge, and their support of the averment or belief of the affiant. It is in effect urged that the requirement can have no other purpose; that it is idle else, giving an automatism to the affidavit which overrides everything. But this is a misunderstanding of the requirement. It has other and less extensive use, as pointed out by Judge Meek in Henry v. Speer, supra. It is a precaution against abuse, removes the averments and belief from the irresponsibility of unsupported opinion, and adds to the certificate of counsel the supplementary aid of the penalties attached to perjury. Nor do we think that this view gives room for frivolous affidavits. Of course, the reasons and facts for the belief the litigant entertains are an essential part of the affidavit, and must give fair support to the charge of a bent of mind that may prevent or impede [34] impartiality of judgment. The affidavit of defendants has that character. The facts and reasons it states are not frivolous or fanciful, but substantial and formidable, and they have relation to the attitude of Judge Landis's mind toward defendants. It is, however, said that the assertion and the facts are stated on information and belief, and that hence the affidavit is wholly insufficient, § 21 requiring facts to be stated, "and not merely belief." The contention is that "the court is expected to act on the affidavit itself," and that, therefore, "the act of Congress requires facts,-not opinions, beliefs, rumors, or gossip." Ex parte American Steel Barrel Co. 230 U. S. 35, 57 L. ed. 1379, 33 Sup. Ct. Rep. 1007, is cited for the contention. We do not know what counsel means by "opinions, beliefs, rumors, or gossip." The belief of a party the section makes of concern, and if opinion be nearer to or farther from persuasion than belief, both are of influence, and universally regarded as of influence, in the affairs of men, and determinative of their conduct; and it is not strange that § 21 should so regard them. We may concede that § 21 is not fulfilled by the assertion of "rumors or gossip," but such disparagement cannot be applied to the affidavit in this case. Its statement has definite time and place and character, and the value of averments on information and belief in the procedure of the law is recognized. To refuse their application to § 21 would be arbitrary and make its remedy unavailable in many, if not in most, cases. The section permits only the affidavit of a party, and Ex parte American Steel Barrel Co. supra, decides that it must be based upon facts antedating the trial, not those occurring during the trial. In the present case the information was of a definite incident, and its time and place were given. Besides, it cannot be the assumption of § 21 that the bias or prejudice of a judge in a particular case would be known by everybody, and necessarily, therefore, to deny to a party [35] the use of information received from others is to deny to him at times the benefit of the section. We are of opinion, therefore, that an affidavit upon information and belief satisfies the section, and that, upon its filing, if it show the objectionable inclination or disposition of the judge, which we have said is an essential condition, it is his duty to "proceed no further" in the case. And in this there is no serious detriment to the administration of justice, nor inconvenience worthy of mention; for of what concern is it to a judge to preside in a particular case? of what concern to other parties to have him so preside? and any serious delay of trial is avoided by the requirement that the affidavit must be filed not less than ten days before the commencement of the term. Our interpretation of § 21 has, therefore, no deterring consequences, and we cannot relieve from its imperative conditions upon a dread or prophecy that they may be abusively used. They can only be so used by making a false affidavit; and a charge of, and the penalties of, perjury, restrain from that, perjury in him who makes the affidavit, connivance therein of counsel, thereby subjecting him to disbarment. And upon what inducement and for what achievement? No other than trying the case by one judge rather than another, neither party nor counsel having voice or influence in the designation of that other; and the section, in its care, permits but "one such affidavit." But if we concede, out of deference to judgments that we respect, a foundation for the dread, a possibility to to the prophecy, we must conclude Congress was aware of them and considered that there were countervailing benefits. At any rate, we can only deal with it as it is expressed, and enforce it according to its expressions. Nor is it our function to approve or disapprove it; but we may say that its solicitude is that the tribunals of the [36] country shall not only be impartial in the controversies submitted to them, but shall give assurance that they are impartial,-free, to use the words of the section, from any "bias or prejudice" that might disturb the normal course of impartial judgment. And to accomplish this end the section withdraws from the presiding judge a decision upon the truth of the matters alleged. Its explicit declaration is that, upon the making and filing of the affidavit, the judge against whom it is directed "shall proceed no further therein, but another judge shall be designated in the manner prescribed in § 23 to hear such matter." And the reason is easy to divine. To commit to the judge a decision upon the truth of the facts gives chance for the evil against which the seetion is directed. The remedy by appeal is inadequate. It comes after the trial, and if prejudice exist, it has worked its evil, and a judgment of it in a reviewing tribunal is precarious. It goes there fortified by presumptions, and nothing 1920. BERGER v. UNITED STATES. can be more elusive of estimate or decision than disposition of a mind in which there is a personal ingredient. After overruling the motion of plaintiffs for his displacement, Judge Landis permitted to be filed a stenographic report of the incident and language upon which the motion was based. We, however, have not discussed it, because, under our interpretation of § 21, it is excluded from consideration We come, then, to the questions certified, and to the first we answer Yes; that is, that the affidavit of prejudice is sufficient to invoke the operation of the act. To the second we answer that, to the extent we have indicated, Judge Landis had a lawful right to pass upon the sufficiency of the affidavit. To the third, we answer No; that is, that Judge Landis had no lawful right or power to preside as judge on the trial of defendants upon the indictment. So ordered. When the bill came before the Senate, the section was amended so as to require the facts, and the reasons for the belief that bias or prejudice existed, to be set forth, and the affidavit is required to be accompanied by a certificate of counsel of record that it and the application are made in good faith. Senate Document, No. 848, 61st Congress, 3d Session. It is thus apparent that the section, in the form in which it finally became part of the Judicial Code, intended that the bias or prejudice which should disqualify [38] a judge should be personal against the objecting party, and that it should be established by an affidavit which should set forth the reasons and facts upon which the charge of bias or prejudice was based. The evident purpose of this requirement was to require a showing of such reasons and facts as would prevent imposition upon the court, and establish the propriety of the affidavit of disqualification. "It is not sufficient," said the late Mr. Justice Brewer, when a member of the supreme court of Kansas, in Emporia v. Volmer, 12 Kan. 627, "that a prima facie case only be shown,-such a case as would require the sustaining of a challenge to It must be strong enough to [37] Mr. Justice Day, dissenting: As this case is to settle the practice for this and similar cases which may arise in the Federal courts, and as the opinion does not consider some aspects of the record, I venture to state the reasons a juror. which impel me to reach a different con-overthrow the presumption in favor of clusion than that announced by the the trial judge's integrity and of the clearness of his perceptions." majority. An examination shows that statutes exist in a number of states, covering the subject under consideration. These statutes vary in character and in the requirements for establishing the bias or prejudice of the judge which may require him to abstain from sitting at the trial of a particular case. I accept the opinion of the majority that the judge, under the requirements of this statute, may pass upon the sufficiency of the affidavit, subject to a review of his decision by an appellate court, and if it be sufficient to show personal bias and prejudice, the judge should not try In some of the case. them an affidavit of belief of prejudice, or that a fair trial cannot be had before a particular judge, is sufficient to disqualify him. Other statutes require supporting affidavits and the certificate of counsel, and provide for a hearing on the matter of disqualification. In some states the matter is required to be heard before another judge. But I am unable to agree that, in cases of the character now under consideration, the statement of the affidavit, however unfounded, must be accepted by the judge as a sufficient reason for his disqualification, leaving the vindication of the integrity and independence of the judge to the uncertainties and inadequacy of a prosecution for perjury if it should appear that the affidavit contains known misstatements. The Federal statute, now under conNotwithstanding the filing of the affisideration, had its origin in an amendment to the Judicial Code, introduced in davit purporting compliance with the the House of Representatives when the statute, the court has a right to use all adoption of the Code was under consider- reasonable means to protect itself from ation. As adopted in the House, the imposition. Davis v. Rivers, 49 Iowa, affidavit was required to set forth the 435. The personal bias or prejudice of reasons for the belief that personal bias or prejudice existed against the party, or in favor of the opposite party to the suit. See Congressional Record, vol. 46, part 3, pp. 2626 et seq. the judge against the defendants in this case is said to be established by language imputed to the judge as his utterances concerning the attitude of the German people during the progress of the war. 487 T [39] The affidavit filed contained a defendant, said that he was of the type statement of alleged language of the of man who branded almost the whole judge, concerning a German who was American-German population; and that "charged" with making the statements one German-American, such as the deset forth. Upon receiving the af- fendant, talking such stuff, did more damfidavit the judge at once required of age to his people than thousands of them counsel whether the language ascribed could overcome by being good and loyal to him was not in fact uttered in citizens; and that he, the defendant, was connection with the disposition of the an illustration of the occasional American case of United States against one Weis- of German birth whose conduct had done sensell, in sentencing him after con- so much to damn the whole ten million viction by a jury of a violation of the in America. While this language might Espionage Act [40 Stat. at L. 217, chap. have been more temperate, there does not 30, Comp. Stat. § 10,212a, Fed. Stat. appear to be in it anything fairly estabAnno. Supp. 1918, p. 120] in the same lishing that the judge directed his obsercourt. Counsel informed the judge that vations at the German people in general, such was the fact. The judge asked coun- but rather that his remarks were aimed sel for Berger whether he had made any at one convicted, as was the defendant, of effort to ascertain the accuracy of the violation of law. statement alleged to have been made by the court. Counsel replied that he had not. It would seem incredible that any judge could have made such statements concerning a defendant not yet tried in his court, in advance of trial, and upon a mere charge of an offense. Counsel in open court admitted that the offending language was used in passing sentence after conviction in Weissensell's case. Moreover, upon the affidavit being filed, and after this admission of counsel, the district attorney offered in evidence a transcript of what took place and what was in fact said upon the sentencing of Weissensell. The judge permitted this stenographic report, sworn to by an experienced stenographer, who made it, to be a true and correct report of the statements made and the proceedings had, to be put into the record, saying that the truth should be shown of record in connection with the falsity, although he was of opinion that the facts stated in the affidavit failed to establish bias or prejudice against the defendants which would disqualify him from sitting at the trial. As I understand the opinion of the court, notwithstanding the admissions of counsel, and the sworn stenographic report of what took place, the affidavit must be accepted, and if it discloses matters which, if true, would tend to establish bias and prejudice, the same must be given effect and the judge be disqualified. It does not seem to me that this conclusion comports with the requirements of the statute that reasons and facts must be set forth for the consideration of the judge. It places the Federal courts at the mercy of defendants who are willing to make affidavits as to what took place at previous trials in the court, which the knowledge of the judge, and the uncontradicted testimony of an official report, may show to be untrue, and in many districts may greatly retard the trial of criminal causes. [41] While, as I have said, in sentencing Weissensell the judge might have been more temperate in his observations, I am unable to find that the statements of the affidavit, when read in connection with the admissions of counsel, and the established facts as to what took place, as gathered from the stenographic report, showed such evidence of personal bias or prejudice against the defendants as required the judge, upon the mere filing of this affidavit, to permit its misleading statements to be placed of record, and to proceed no further with the case. This stenographic report, sent up with the certificate, and made part of it, and which there is no reason to believe fails to state accurately what took place, is in marked contrast with statements of the affidavit which the defendants made when seeking the disqualification of the [40] judge. It shows, as we have already stated, that the utterances of the judge were after conviction of Weissensell, It does not appear that the trial judge and were made when he was passing had any acquaintance with any of the sentence. It shows that the state- defendants, only one of whom was of ment of the judge concerning German- German birth, or that he had any such Americans was quite different from bias or prejudice against any of them that stated in the affidavit, and re- as would prevent him from fairly and ferred to the type of man who had been impartially conducting the trial. To perconvicted and was before him for sentence. mit an ex parte affidavit to become in The judge, in speaking of the convicted effect a final adjudication of the disquali |