80TH CONGRESS HOUSE OF REPRESENTATIVES 1st Session

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REPORT No. 308

REVISION OF TITLE 28, UNITED STATES CODE

APRIL 25, 1947.-Ordered to be printed

Mr. ROBSION, from the Committee on the Judiciary, submitted the following

REPORT

[To accompany H. R. 3214]

The Committee on the Judiciary submits the following report in explanation of the bill (H. R. 3214) to revise, codify, and enact into law title 28 of the United States Code entitled "Judicial Code and Judiciary." and recommends that the bill do pass. The present bill has been substituted for an earlier bill (H. R. 2055) on which hearings were held and contains changes recommended by the subcommittee.

PRELIMINARY STATEMENT

SCOPE OF REVISION

The source material of this revision was the Judicial Code of 1911 constituting, in part, title 28 of the United States Code. To this were ferred without impairing the framework of the official United States Code prepared by the former Committee on Revision of the Laws of the House and enacted by Congress in 1926.

This revision includes all applicable laws in effect March 10, 1947. Before actual revision was begun a scientific plan was assembled.

This included:

1. The complete text of title 28, United States Code, 1940 edition,

and the latest supplement thereto.

2. Pertinent provisions from other titles of the code.

3. Complete text of original acts set out in the Statutes at Large. 4. Applicable constructions by the courts.

5. Notes based upon a careful examination of the Code of Federal Regulations and law reviews.

6. Exhaustive historical notes.

7. Notes on the Rules of Civil Procedure and Rules of Criminal Procedure promulgated by the Supreme Court.

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8. Suggestions from the bench and bar.

Revision, as distinguished from codification, required the substitution of plain language for awkward terms, reconciliation of conflicting laws, repeal of superseded sections, and consolidation of related provisions.

HISTORY OF THE JUDICIAL CODE

The first law establishing the Federal courts and regulating their jurisdiction and procedure was enacted at the first session of the First Congress. This law of September 24, 1789 (ch. 21, 1 Stat. 73), is popularly known as the Judiciary Act of 1789.

This first judicial code was very brief. It comprised only 35 sections. But the Nation itself was small, with a population of only 3,000,000.

From the beginning the body of the law relating to the courts and judicial officers and their procedure developed gradually by unrelated acts, without any real effort to reconcile conflicting provisions of successive enactments. At the outbreak of the Civil War the Statutes at Large numbered 12 volumes. That war and the reconstruction period which followed gave impetus to Federal legislation.

The whole of the expanding body of Federal law was carefully examined by the commissioners empowered by Congress in 1866 to prepare the Revised Statutes of the United States. Obsolete and superseded provisions, which had accumulated during the 88-year period from 1789 to the date of the final approval of the Revised Statutes in 1877, were repealed. Inconsistent provisions were reconciled and all existing laws relating to the courts were analyzed, revised, and consolidated into title XIII, of the Revised Statutes, entitled "The Judiciary," comprising 21 chapters and 564 sections.

The Judicial Code of 1911 was enacted into law by act March 3, 1911 (ch. 231, 36 Stat. 1152), after long and exhaustive study by the same commission that drafted the Criminal Code of 1909.

In preparing the Judicial Code of 1911 the commissioners discarded the analysis and arrangement used in the Revised Statutes. Statutes were revised and consolidated, obsolete laws were repealed and improvements were introduced. The old circuit courts were abolished and their jurisdiction transferred to the district courts.

Thirty-six years have passed since the enactment of the Judicial Code of 1911. That is a longer time than elapsed between the revisions of 1878 and 1911. It comprises a period which witnessed unprecedented changes on the national scene. During those years the population of the United States leaped from 91,000,000 to 140,000,000 and the Nation twice experienced the tremendous social changes that accompany world wars. It is a tribute to Congress and to the draftsmen of the Judicial Code of 1911 that our judicial system has withstood the impact of these terrific changes. However, there is little doubt that the changes of the past 36 years make imperative this revision of the Judicial Code.

STAFF OF EXPERTS ASSEMBLED

The former Committee on Revision of the Laws obtained the services of the West Publishing Co., of St. Paul, Minn., and the Edward Thompson Co., of Brooklyn, N. Y., thus bringing to this undertaking

the combined editorial resources and experiences of the two leading law publishing firms. These are the companies which, under the supervision of that committee, prepared the original United States Code in 1926, and have edited the Code and its supplements for the Congress since that time.

In addition to their staffs of editors, these companies engaged as chief reviser, W. W. Barron, Esq., former Chief of the Appellate Section of the Criminal Division of the Department of Justice and also secured the services of Frank J. Parker, assistant United States attorney for the eastern district of New York.

The former Committee on Revision of the Laws exercised close and constant_supervision over this work through its general counsel, Charles J. Zinn, of the New York and District of Columbia bars, and its special counsel, John F. X. Finn, member of the Law Revision Commission of New York and recognized expert on procedure. The work has been continued and completed under the supervision of the Committee on the Judiciary.

ADVISORY COMMITTEE

An impartial advisory committee composed of outstanding men with years of practical experience at the bar and on the bench materially assisted in the work of revision with their wise counsel and advice. This public-spirited group consisted of Judge Floyed E. Thompson, former chief justice of the Illinois Supreme Court and former president of the Chicago Bar Association; Hon. Justin Miller, former associate justice of the United States Court of Appeals for the District of Columbia; Judge John B. Sanborn, judge of the United States Circuit Court of Appeals for the Eighth Circuit; Hon. Walter P. Armstrong, of the Memphis bar and former president of the American Bar Association; and Hon. John Dickinson, of the Philadelphia bar, former assistant Attorney General of the United States.

This advisory committee was ably assisted by Judge John J. Parker, senior circuit judge of the United States Circuit Court of Appeals for the fourth circuit, who rendered valuable service as a judicial consultant. The committee was also assisted by two special consultants each an expert in the field of Federal procedure: Judge Alexander Holtzoff, United States district judge, District Court for the District of Columbia; and Prof. James W. Moore, of Yale University. Besides the invaluable assistance these special consultants were able to render as a result of their years of experience in Federal jurisprudence, they materially assisted in the technical task of singling out for repeal or revision stautory provisions made obsolete by the Federal Rules of Civil Procedure.

JUDICIAL CONFERENCE COMMITTEE

The Judicial Conference Committee on the Revision of the Judicial Code, appointed by Hon. Harlan Fiske Stone, late Chief Justice of the United States, worked in close cooperation in preparation of this bill. This committee consisted of Judge Albert B. Maris, judge of the United States Circuit Court of Appeals for the third circuit; Judge Clarence G. Galston, United States district judge for the eastern district of New York; and Judge William F. Smith, United States district judge for the district of New Jersey. These judges are entitled to high commendation for their unselfish and able assistance.

SUPREME COURT COMMITTEE

The work of revision was greatly facilitated and advanced through the cooperation of a committee of Supreme Court justices appointed by the Chief Justice. This committee consisted of the late Chief Justice Stone and Associate Justices Frankfurter and Douglas. It was most cooperative in the solution of problems of concern to that Court. The afternoon sessions of the advisory committee meetings at Washington on December 5, 1945, and again on April 3, 1946, were honored by visits of this committee.

COMMITTEE MEETINGS

Four times during the course of revision the advisory committee met with the committee of the Judicial Conference, consultants, members of the revision staff and counsel for the former Committee on Revision of the Laws once at Brooklyn, N. Y.; again at Hershey, Pa.; and twice at Washington, D. C. At each meeting the revision staff submitted a draft of the proposed text of this bill, supported by reviser's notes explaining in detail each change and the reasons therefor. This procedure assured careful examination of every section. At each meeting some sections were recommitted to the reviser for further study and each member of both committees and the staffs of consultants and counsel actively cooperated in procuring a final draft acceptable to all. The former Committee on Revision of the Laws had these preliminary drafts printed and distributed to the Federal bench and bar for its criticisms and suggestions.

COOPERATION WITH BENCH AND BAR

When work first began on title 28, letters were mailed to all Federal judges, United States attorneys, deans of law schools, and presidents of bar associations, explaining the revision and asking for suggestions and criticisms. Many letters received by the committee in response contained recommendations for the improvement of the judicial code. These were catalogued, studied and made available to the revision staff. They were invaluable in making possible a thorough revision.

COOPERATION WITH FEDERAL AGENCIES

As the work of the revision progressed, the advice of Government officials was sought regarding problems affecting particular departments or agencies. It was found advisable to submit the text of proposed sections and prepare inquiries concerning them. The officials in charge of the respective department or agency which might be affected by this revision were kept fully informed. Copies of the several drafts were sent to them from time to time.

The committee is especially grateful to the former counsel of the House Committee on the Judiciary, Charles E. Long, Jr., and to the Director of the Administrative Office of the United States Courts, Hon. Henry P. Chandler, and his assistant, Hon. Elmore Whitehurst, each of whom attended several of the advisory committee meetings and cooperated to the fullest. It is also most appreciative of the gracious assistance rendered by Hon. Charles Elmore Cropley and Thomas

E. Waggaman, Clerk and Marshal of the United States Supreme Court, respectively, for arranging accommodations for the advisory committee in the Supreme Court Building and for constructive suggestions regarding the revision.

CLASSIFICATION AND NUMBERING

The first step in revision was the preparation of a preliminary analysis-the framework upon which to build the new title. In drafting this outline the old system of classification was discarded and a modern subject matter arrangement was substituted. The material was divided into six major categories. Part I provides for organization of courts; part II treats of the attorneys and marshals; part III covers court officers and employees; part IV sets forth the provisions on jurisdiction and venue; part V deals with procedure; and part VI takes up particular proceedings.

Within these parts, the subject matter was arranged under appropriate chapter heads. The numbering system adopted makes adequate provisions for future legislation. Chapters were given odd numbers, leaving the even numbers available for related chapters containing future acts. Sufficient section numbers were left between chapters to accommodate such growth.

STYLE

A clear and uniform style was an important aim of this revision. Concise, clear, and direct expressions were preferred to verbose, redundant and circuitous language. This is fully indicated in the reviser's notes in the appendix to this report.

CONSOLIDATION OF SECTIONS

In many instances similar sections were consolidated without making fundamental changes. For example three short sections in chapter 43 consolidate 51 sections of existing law. Section 507 consolidates 14 sections and sections 456 and 553 consolidate 8 sections each.

By such consolidations bulk was reduced and repetitious overlapping provisions telescoped with a resulting improvement of style and substance.

EXAMPLES OF CHANGES IN LAW

The District of Columbia is included as a judicial circuit of the United States in section 41 and as a judicial district in section 88. Under sections 43 and 132 its court of appeals and district court are, in all respects, made equal as to jurisdiction and powers with corresponding courts in other circuits and districts respectively.

The name "United States Court of Appeals" was substituted for "United States Circuit Court of Appeals" as a more accurate descriptive title. See section 43. The title "chief judge" was substituted for "senior judge" with reference both to circuit and district judges as more descriptive of their administrative functions. See sections 45 and 136. Similar nomenclature is used with reference to the Court of Claims, sections 171 and 172; Court of Customs and Patent Appeals, sections 211 and 212; Customs Court, sections 251 and 252; and Tax Court, section 273.