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Counties of considerable magnitude. That development is over and the oil nearly exhausted. I am not fully advised as to the oil and gas development in the Big Sandy Valley. Possibly some progress is being made in the development of gas, but it has been several years since there has been a suit in my court growing out of this development. A considerable source of litigation in my court in the mountain sections is now about over, and that is as to land titles. Only a few of such cases are now left on the docket and it is not likely that there will be many in the near future. There is nothing in the condition of things to cause an increase of the civil business. The workmen's compensation act and the Federal employee's liability act have each made serious inroad on the business of this court. The greatest source of litigation in it at present is the insurance business. This is due to the fact that the Supreme Court has recently held that such cases are removable.

What is true of the civil business is also true of the criminal business. It is beginning to decrease and there is every reason to believe that it will continue to decrease. The Jones law has a good deal to do with this. I have thus far held two terms of court this spring, at Jackson and Frankfort. The number of new criminal cases brought at Jackson at the September, 1929, term was 401. At the March term, 1930, it was 240. The number brought at Frankfort at the September term, 1929, was 152. At the March term, 1930, it was 114. The April term of court at Covington is now in session. At the October term 1929, the number of new cases was 163. At the April term 1930 it was 221. This includes about 12 Jamaica ginger cases, many of the defendants in which come from distant points of the country. There has been an increase at Covington since last fall, but the samll number of cases in the fall was unusual. There were 275 cases brought at the April term, 1929; many convictions were had and there was a let-up in the activity of the prohibition force thereafter.

2. More cases were disposed of in each of the four departments of the court's business, to wit, United States criminal, United States civil, private civil, and bankruptcy during the year ending June 30, 1929, than were brought. In all, 120 more cases were disposed of than were brought.

3. The burden of the criminal docket on the court is not to be gathered from the number of trials had. According to the report of the Attorney General during the year ending June 30, 1929, there were 1,219. But in them are included many trials, the necessity for which was caused by the district attorney's impression that he was restricted by the Attorney General in his power to nolle a case. In such cases, a jury was sworn, no evidence was introduced and the jury pursuant to instructions of the court, found the defendant not guilty. More properly, in all of these cases, there should have been a dismissal for want of prosecution, but the district attorney desired the formality of a trial. There was also included many trials of absent defendants. All prosecutions under the national prohibition act, before the Jones law, were misdemeanors. It has long been the practice in the State of Kentucky to try a misdemeanor case in the absence of a defendant where he has given bond for his appearance and has not appeared. This practice has been followed in my court. In most of these cases, the defendants signed and swore to a written plea of guilty before the commissioner and such plea was read before the jury as the only evidence of his guilt. a number of cases, the defendant appeared on the call of the docket, plead not guilty and then absented himself. And practically all of these cases were of an inferior sort and not infrequently the sentence imposed was suspended. I do not have the figures dividing the 1,219 cases tried in the year ending June 30, 1929, amongst these two classes of cases and the contested trials, but I do have them for the calendar year ending December 31, 1929. There were 1,122 cases tried that year. The number of cases tried that should have been nolled or dismissed for want of prosecution was 315. The number of absent defendants tried was 253.

The number of trials where there was contest was 554, less than half of the number of cases tried. Of course, in the matter of trials where there was no contest, but little time was taken in disposing of them. Many of the 554 contested cases were of an inferior kind not infrequently involving the possession of only a small amount of intoxicating liquor, such as a pint or half pint. The prosecuting officers in this district aim to sweep clean and I have not discouraged them. For the most part, all of the contested cases tried were of a simple character and the evidence was brief. There was very little jury challenging; questions as to the competency of the evidence were not often made; the cases were rarely argued and the instructions to the jury were short. Because of these things, but little time was required to try them. This was not due to any effort on the part of the court to shorten the trials, but to the inherent nature of the

cases.

There is some intimation in the brief that possibly the defenses of the accused were not accorded proper deliberation and consideration. There is no basis for any such thought. Whilst the court began early, quit late and kept things moving when in session, it was patient with the hearing of each case, giving it all the time needed or desired. It kept its mind continually on the matter in hand and endeavored to keep the minds of all others there, so that no time would be lost on account of extraneous matters. I have never heard it intimated by any one that proper time and attention has not been given in trials for the protection of the defendants. The only expressions I have ever heard are of stisfaction with the way such matters are handled.

4. The United States civil docket practically takes no time of the court. The largest item on it for the year June 30, 1929, was internal-revenue cases to the number of 161. These were almost exclusively proceedings under section 3450 for the forfeiture of automobiles in which whisky had been deposited or concealed on which the tax had not been paid. There was no defense in any of these cases on the docket, and no trials. Everything went by default.

5. I do not have the exact figures as to the number of private civil cases tried before a jury. I do not think that it exceeded 25. Very few of them took more than a day to try and frequently more than one was tried in a day.

6. Less than one-half of my time has been taken in holding court. The rest of it has been spent at my home. I have had ample time to spare in holding court and there is no reason why I should not have given more time to it if it had been needed. No complaint has ever been made by anyone of delinquency in this particular. I have always arranged to try any civil cases where the parties desired trial whether court was in session or not.

one.

II. INJUSTICE TO THE MOUNI AIN PEOPLE 1. As to places of holding court. The mountain section is now served by four places of holding court. They are Jackson in the center, London in the southwestern, Catlettsburg on the northern boarder, and Richmond on the western border.

But one other place of holding court is needed to make conditions ideal so far as this portion of the district is concerned, and that is at Pikeville, at the head of the Big Sandy River in the southeastern end. I have caused it to be known for a number of years that I thought that court should be held at Pikeville and that the designation of it as a place of holding court would meet with my approval. These five places of holding court meet all the reasonable necessities of the mountain section. Railroads and good State roads lead to all of them and render them easy of access from all portions of the mountain section. Busses and many private automobiles as well as railroad trains afford means of travel to and from these place. The railroad trains run with a reasonable degree of speed.

H. R. 5624 provides four places of holding court in the mountain section in addition thereto, making nine places in all serving that section. Hazard is one of these four. It is about 40 miles from Jackson and on the same railroad, to wit, Louisville & Nashville and the same State highway. Pineville is another

It is about 40 miles from London. These two places are likewise on the same railroad, to wit, the Louisville & Nashville, and on the same State highway. At both Jackson and London there is a fine Government building, erected mainly for the purpose of housing the court. The establishment of courts at Hazard and Pineville will amount practically to abandoning the courts at Jackson and London, i. e., to a substitution of Hazard and Pineville as places of holding court for Jackson and London. This is so because there will never be any civil business at either place to amount to anything and the criminal docket at each place will be small

. The business now transacted at them will be transferred substantially to Hazard and Pineville. If it were an original question, court should be at Hazard rather than Jackson and at Pineville rather than London. It was established at Jackson because it was then the terminus of the Louisville & Nashville Railroad, and at London because it was the home of the Congressman from the eleventh district.

Somerset, another one of the new places provided, is about 30 miles to the west of London. It is the county seat of Pulaski County. Up until now, that county and the two counties to the south of it, next to the Tennessee line, to wit, Wayne and McCreary, have been allotted to the Lexington court rather than to that at London. This is so because of want of easy access between those three counties and London. The access between them and Lexington is easy, both by the Cincinnati Southern Railroad and good State highways. A mood State highway is about to be built between London and Somerset affording

easy access to London from those three counties. When this is built, these counties should be allotted to London. The civil business arising from these three counties and the counties taken from the western district is negligible and the criminal business will be small.

Paintsville, the other place, is on the Big Sandy about half way between Catlettsburg and Pikeville. It is on the same railroad, to wit, the Chesapeake & Ohio, and on the same State highway. The civil business arising from the territory contiguous to it will be slight. It is not likely to amount to as much on the average as a single case a year. The criminal docket will be small.

The effect of establishing court at these four additional places will be to bring about insignificant courts at Paintsville, Jackson, London, and Somerset. It is no credit to the United States to have an insignificant court. It will be harmful in two respects. The State of Kentucky has a good prohibition law. The tendency now is quite strong to turn such prosecutions over to the Federal Government. This tendency is one of the reasons why the criminal business in the district court of the eastern district of Kentucky is so large. The establishment of so many Federal courts in the mountain section will increase that tendency if it does not being about a complete surrender on the part of the State courts. These cases will be thrown into the Federal courts to increase the business of those Federal courts. The number of United States commissioners will be increased, and the more cases there are the more fees for themselves.

The other respect in which it will be harmful is that it will affect the character of the jurors in the Federal courts. The wider the field from which persons come, the better jurors will be selected. It is a well-known fact that the jurors in Federal courts are of higher class than those in the State courts. This is so because of the wider field from which the Federal jurors come. Those in the State courts come from a single county. Those in the Federal courts come from 10 or more. The increase of Federal courts lessens the field from which jurors therein come.

2. It is said that many of the jury cases, both civil and criminal, arising in one section are tried in another. By this is meant, no doubt, that many of such cases arising in the mountains are tried in the bluegrass section. As an illustration of this, reference is made to the fact that cases arising in Pulaski County, of which Somerset is the county seat, are tried at Lexington. Such is not the fact. No civil suit against a defendant living in the mountain section can be tried or heard outside of that section without his consent. Section 83 of the Judicial Code expressly provides that a civil case shall be docketed, and, if not so docketed, be transferred to the court nearest the place of the residence of the defendant. This provision of the Judicial Code has been rigidly enforced. No civil suit against such defendant has ever been heard or tried outside of the mountain section except by the consent of the defendant. Frequently defendants have preferred to have their cases heard or tried elsewhere. As to criminal cases, no case arising in the mountain section is ever tried or disposed of elsewhere except in two instances—the defendant is in jail and unable to give bond, or the offense with which he is charged was committed outside of that section. The number of each class is very few. So far as the defendants are concerned, it would be better for them that their cases be tried by a bluegrass jury than a mountain jury—more of them would escape conviction. The mountain jurors understand better the ways of the moonshiner if not of the bootlegger.

This is to be said as to Pulaski County. In the 29 vears I have been on the bench, I recall but a single jury case arising either in Pulaski County or the two counties of Wayne and McCreary to the south of it being tried by a jury. It is true that the criminal cases arising in these three counties are tried at Lexington but not by blue grass jury, as intimated in the brief.

Amongst the counties from which jurors are drawn for Lexington court are these three counties of Pulaski, Wayne, and McCreary. Another mountain county from which jurors are drawn is Menifee, and three other such counties, to wit, Bath, Montgomery, and Clark, adjoining the mountain section and portions thereof are located therein. There are but three of the counties from which such jurors are drawn, to wit, Fayette, Bourbon, and Jessamine which are exclusively blue grass. The only complaint which can be urged by these counties is the distance to Lexington, but the means of access to wit, Cincinnati Southern and State highways are easy. And as stated as soon as the connecting State highway between Somerset and London is constructed, these counties can be allotted to London.

3. It is said that it is grossly unjust and unfair to compel citizens in the Cumberland Valley to travel 250 miles from the border of Virginia, particularly in order to present to the court bankruptcy matters ana common law and criminal cases demanding expedition and where litigants wish to appear before the court. The court referred to is not named. It is likely that it is the court at Covington, where the headquarters are. It is possible that it has reference to the court sitting in chambers at Maysville, 63 miles east of Covington, which is no where near the borders of Indiana.

The trouble with this statement is that no citizen of the Cumberland Valley has ever been compelled, or found it necessary to go to Covington or Maysville, in any bankruptcy, common-law, or criminal case, nor will such condition ever arise in the future. Involuntary bankruptcy cases are docketed at Covington, but there has never been such a case which was contested and called for a jury. If such a case should arise and the defendant should so move, it would be transferred to London for trial. All such cases, as well as voluntary ones, are referred to the referees, and handled by them at their respective offices. The mountain section is well supplied with referees. They are located at Somerset, Barbourville, Whitesburg, and Pikeville. Any common-law or criminal case involving a citizen of Cumberland Valley, if docketed at Covington, would be transferred to London on defendant's motion. It would not be tried elsewhere, except by his consent. It is possible that in a criminal case he may be in jail and unable to give bond and in order to secure an early disposition of the case, it would be transferred to Convington, but not then if he objected. It is possible also that in such a case the offense may have been committed elsewhere, and the circumstances may be such as to call for its disposition at Covington, but no such case has ever arisen. The only case docketed and disposed of at Covington involving citizens of the Cumberland Valley which I can recall was an equity case.

In that case other interests were involved. No objection was made to it being disposed of there, and the circumstances were such that it was the proper place for its disposition. What is here said as to citizens of the Cumberland Valley is true of citizens of every other part of the mountain sections.

4. In conclusion it is said that the recent industrial development, new conditions arising, inconvenience of travel, increased criminal litigation and justice to the people demand the enactment of the proposed bill. There has been no recent industrial development. No new conditions have arisen or are likely to arise in the future. The inconveniences of travel that have heretofore affected the mountain section have been largely done away.with and are rapidly coming to an end. Good State highways are being constructed all through the mountain section and it is reached by three great railway systems, Cheaspeake & Ohio, Louisville & Nashville, and the Cincinnati Southern. The criminal litigation is not increasing. It is decreasing. No injustice has been or will be done these people. Such a claim has never heretofore been put forth.

In conclusion some general considerations may be referred to that favor allowing the eastern district to remain as it is.

The physical conformation of the State is such that it is not possible to divide the State into three districts of substantially the same size, in point of business. It can not be so divided by running lines from the Ohio River to the Tennessee line. This is so because of its width in the eastern end and its narrowing toward the western end, with Louisville near the center. What the bill does is to take a few counties from the western district and practically divide the eastern district. Each of these two districts will be inferior in point of business to the western district. The taking of those counties from the western district gives but little relief to that district. They naturally belong to the western district and according to my information do not desire to be detached from it. The eastern district, as it now exists, is composed of the mountains and the blue grass in almost equal proportions. They are welded together by that district and should not be separated. To set the mountains off to themselves smacks of provincialism. The district has an attractive center at Lexington from which point State highways and railroads radiate to all points of the district and Congress has appropriated three quarters of a million dollars to the construction of a Federal building there.

In the year 1907 there was extensive night riding in the blue grass section: because of the grievance of the farmers at the low price of tobacco. A criminal prosecution under the Sherman Antitrust Act, growing out of the troubles, was instituted in my court and several civil suits for damages by aggrieved parties were brought in my court. The feeling throughout that section was so high that I felt constrained to summon a grand and petit jury from the mountain section, where they had no feeling on the subject. The prosecution and those :suits resulted in conviction and judgments. An appeal was taken in the criminal case, in which the conviction was affirmed. (Steers v. United States, 192 Fed.) This put an end to the night riding.

Of the four heads of the four departments, three of them, the district attorney, clerk, and marshal, come from the mountains. I alone came from the blue grass. The clerk is my appointee. He was born in Perry County and later removed to London, where he served as United States commissioner and deputy clerk. He is a mountain boy who has made good. This bill takes from him the clerkship of a fine district. The services of the district attorney have been valuable, particularly at Covington and Newport. The Department of Justice has seen fit to center the prosecutions growing out of the distribution and sale of deleterious Jamaica ginger throughout the country, which has afflicted so many persons, at Covington, in this district, and these prosecutions will be han-dled by him. Had the district been divided, the Government would have been deprived of his services in the blue grass section of the district. A consideration which strongly favors the keeping of the district intact is that it affords a wider field from which to obtain the heads of the four departments of the court, the judge, the district attorney, the clerk, and the marshal, and tends to bring about the selection of better men for each of the positions. The district as it is affords an opportunity for distinction to mountain men that they could not have in case of division.

It is true that I have some sentiment in the matter, but this is not what is leading me to oppose this measure. It is because I view it--and I am in a position to judge as to this—that there is no public necessity for it, and its enactment will be a backward step. I have no desire to monopolize the judgship of the district. It has been suggested that a judge be provided for the whole State who will lighten the burden of the judges of both districts. This is entirely agreeable to me. It is also agreeable to me that a junior judge be provided for the eastern district if this should be deemed best by Congress; nor have I any objection to the designation of additional courts in the district. What I have said on the subject is simply my judgment in reference thereto. The thing that I am unalterably opposed to is the division of the district. Perhaps it is somewhat presumptious on my part to speak of what is agreeable to me or to what I object or am opposed to, as the matter is for Congress to determine. I mean merely to convey my feelings and convictions on the subject.

A. M. J. Cochran, United States District Judge, Eastern District of Kentucky. APRIL 17, 1930.

BRIEF IN FAVOR OF AMENDMENT OFFERED BY MR. WALKER

Committee on the Judiciary:

The effect of this amendment is to take Garrard, Lincoln and Casey Counties out of the southern district and place them in the eastern district. I think this will help the bill, because there is admittedly more business in the southern district than there is in the eastern. Therefore this addition to the eastern district will help to equalize the business between the two districts. The main purpose of this change, however, is to establish a court at Danville. Danville is in Boyle County, and Casey, Garrard, Lincoln, Mercer, Marion, and Washington counties adjoin Boyle. The county seat of each of these counties are connected with Danville by improved hard surfaced highways, over which busses run several times a day. From the standpoint of distance Danville is more convenient to adjoining counties than any other city in the State. It is only 12 miles from Lancaster, the county seat of Garrard, 10 miles from Stanford, the county seat of Lincoln, 29 miles from Liberty, the county seat of Casey, 30 miles from Lebanon, the county seat of Marion, 25 miles from Springfield, the county seat of Washington, and 10 miles from Harrodsburg, the county seat of Mercer.

It will thus be seen that Danville, is within from 30 minutes to 1 hour's drive, in an automobile, of six county seats, representing six counties, and Boyle makes the seventh, that would be convenienced by this court at Danville. These counties are thickly populated and Danville is a city of about 8,000, and has .splendid accommodations for court. A good courthouse and good hotels. Respectfully submitted:

Lewis L. WALKER.

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