The opinion of the court was delivered by: FOLLMER
The juries, grand and petit, drawn for the said January Term at Lewisburg, were not adjourned sine die, nor did any special term of Court at Lewisburg intervene. On the completion of the work then before the Court, both juries, grand and petit, were excused subject to recall as necessity might arise.
The case was set for trial originally at Lewisburg on April 26, 1948; however, defendants having indicated their inability to be ready for trial on that date, the Court fixed May 3, 1948, since changed to May 10, 1948, at Lewisburg, as the time and place for trial.
Defendants have moved that the trial of this case be had at Scranton, Pennsylvania, in the Middle District of Pennsylvania, and in support thereof have assigned three reasons, which may be briefly summarized as follows:
1. Termination of the January Term at Lewisburg.
2. Inability to secure a fair and impartial trial at Lewisburg.
3. Deprivation of their constitutional right to a trial by a jury of the peers of their vicinage.
The argument that the January Term of Court at Lewisburg has terminated is without merit.
Defendants base their contention on the phraseology of the Act of 1936, as amended by the Act of 1938, 49 Stat. 1271, 52 Stat. 674, which has been incorporated in that portion of the Judicial Code which provides for the establishment of the various terms of court in the three judicial districts of Pennsylvania, all of which pertinent statutes have been codified as one section in 28 U.S.C.A. 184.
The particular statute had reference to the establishment of additional terms of court in the Middle District to be held at Wilkes Barre. This statute contains this proviso:
'Provided, however, That all writs, precepts, and processes shall be returnable to the terms of Scranton and all court papers shall be kept in the clerk's office at Scranton unless otherwise specially ordered by the court, and the terms at Scranton shall not be terminated or affected by the terms herein provided for at Wilkes-Barre.'
It is argued that if the Congress '* * * in passing the above set forth Statute had in mind that the other terms in the Middle District shall not be terminated by the next term at the place designated it would have said so in the Statute as it did for the Scranton Term. Its failure to do so in the same Statute and the same Section of the Judicial Code cannot be construed other than to mean that the term for Lewisburg was terminated and affected by the commencement of the term at Scranton on March 8, 1948,' that the maxim 'expressio unius est exclusio alterius' applied. This does not follow. The statute establishing the Wilkes-Barre term is, as above indicated, a separate and distinct enactment, and did not attempt to change the pre-existing situation, either by way of modification or limitation, as affecting the other then existing terms of court, nor as a matter of fact does the legislative history preceding its enactment evidence any such intention.
The maxim 'expressio unius est exclusio alterius' requires great caution in its application, and in all cases is applicable only under certain conditions. Sutherland, Statutory Construction, Vol. 2, Par. 4917.
Enactments similar to the Wilkes-Barre statute have occasionally furnished ground for the contention, resting on the above maxim, that an intention to alter the general law (here the various statutes covering the establishment of the other seats of Court in the Middle District) was to be inferred from the partial or limited enactment; but the maxim is ...