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 which impel me to reach a different conclusion than that announced by the 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 ::or establishing the bias or prejudice of the judge which may require him' to abstain from sitting at the trial of a particular case. In some of 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.
The federal statute, now under consideration, had its origin in an amendment to the Judicial Code, introduced in the House of Representatives when the adoption of the Code was under consideration. As adopted in the House, the affidavit was required to set forth the reasons for the belief that personal bias or prejudice existed against the party, or in favor of the opposite party to the suit. (See Cong. Rec., vol. 46, part 3, p. 2626, et seq.)
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. (Sen. Doc., No. 848, 61st Cong., 3d sess.) 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 *38a 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 reason's and facts as should prevent imposition upon the court, axid establish the propriety of the affidavit of disqualification.- “It is not sufficient,’’ said the'latq Mr. Justice Brewer, when a member of the Supreme Court of Kansas, in City of Emporia v. Volmer, 12 Kansas, 627, '' that a prima fade case only be shown, such a case as would require the sustaining of a challenge to a juror. It must be strong enough to overthrow the presumption in favor of the trial-judge’s integrity, and of the clearness of his perceptions.”
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 the case. 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 judgb as a sufficient reason for his disqualification,. leaving the vindication of the. integrity and independence of the judge to the uncertainties and inadéquacy ,of a prosecution for perjury, if it should appear.that the affidavit contains known misstatements.
Notwithstanding the filing of the affidavit, purporting compliance with the statute, the court has a fight to use all reasonable, means to protect itself from imposition. Davis v. Rivers, 49 Iowa, 435. The personal bias or prejudice of 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.
*39The affidavit filed contained a statement of alleged. language of the judge, concerning a German who was. “charged” with making the statements set forth. Upon receiving the affidavit the Judge at once inquired of counsel whether the language ascribed to him was not in fact uttered in connection with the disposition of the case of United States against one Weissensel in sentencing him after conviction'by a jury of a violation of the Espionage Act in the same court. Counsel informed the Judge that such was the fact. The Judge asked counsel for Berger whether he had made any effórt to ascertain the accuracy of the 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 óf an. - offense. Counsel in open court admitted that the offending language was used in passing sentence after conviction' in Weissensel’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 Weissensel. The Judge permitted this stenographic report, sworn to by an experienced stenographer, who made ifc, 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.
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 *40Judge. It shows, as we have already stated, that the utterances of the Judge were after conviction of Weissensel, and were made when he was passing sentence. - It shows that the statement of the Judge concerning German-Americans was quite different from that stated in the affidavit, and referred to the type of man who had. been convicted and- was before him for sentence. The Judge in speaking of the convicted defendant said that he was of the type of man who branded almost the whole German-American population, and that one German-American, such as the defendant, talking such stuff did more damage, to his people than thousands of them could overcome by being good and loyal citizens; and that he, the defendant, was an illustration of the occasional American of German birth whose conduct had done so much to damn the whole ten million in America. While this language might have been more temperate, there does not appear to be in it anything fairly establishing that-the Judge directed his observations at the German people in-., general, but rather that his remarks were aimed at one convicted as was the defendant, of violation-of law.
As I understand the opinion of the court, notwithstanding the admissions of counsel, and the sworn stenographic report bf 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.
*41While, as I have said, in sentencing Weissensel 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.
It does not appear that the trial judge had any acquaintance with any of the defendants, only one of whom was of German birth, or that he had any such, bias or prejudice against any of them as would prevent him from fairly and impartially conducting the trial. To permit an ex parte affidavit to become in effect a final adjudication of the disqualification of a judge when facts are shown, such as are here established, seems to me to.be fraught with much danger to the independent discharge of duties by federal judges, and to open a door to the abusé of the privilege which is intended to be conferred by the statute in question.
In my judgment the questions propounded, in the light of the disclosures of this record, should be answered as to the first: That the affidavit of prejudice, when read in the light of the other disclosures in the record, was insuffi- ‘ cient to meet the requirements of the act. As to the second: That while the judge might have called upon another judge to pass upon the sufficiency of the affidavit, he had jurisdiction to pass upon it himself if he saw fit to do-so. As to the third: That the mere filing of the affidavit did not require the judge to proceed no further with the trial of the defendants upon the accusation against them. .
Me. Justice Pitney concurs in this dissent.