bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.
'The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.'
Beyond the matters contained in the affidavit the only other ground urged by movant for disqualification of the judge was a statement at the argument that he had presented a complaint against the judge to the Congress of the United States for his impeachment some time ago on grounds similar to those expressed in the present affidavit, on which no action had been taken as yet. The movant orally conceded that he did not contend that the judge had any personal animosity toward him and in fact agreed that he had none toward the judge. His only complaint was that the judge had failed to grant relief for which he has heretofore sued.
The United States Supreme Court has held that in order to challenge a judge sitting in a United States District Court 'The basis of the disqualification is that 'personal bias or prejudice' exists, by reason of which the judge is unable to impartially exercise his functions in the particular case. It is a provision obviously not applicable save in those rare instances in which the affiant is able to state facts which tend to show not merely adverse rulings already made, which may be right or wrong, but facts and reasons which tend to show personal bias or prejudice. It was never intended 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.' Ex parte American Steel Barrel Co., 230 U.S. 35, 43-44, 33 S. Ct. 1007, 1010, 57 L. Ed. 1379.
When confronted with a very similar situation as in this case, Judge Follmer sitting in the District of Delaware in the case of Allen v. DuPont, D.C., 75 F.Supp. 546, said: 'In Berger v. United States, 255 U.S. 22, at page 32, 41 S. Ct. 230, at page 232, 65 L. Ed. 481, the Supreme Court pointed out that '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,' and that 'If he finds it to be legally sufficient then he has no other or further duty to perform than that prescribed in section 20 of the Judicial Code.' In that case it also pointed out (255 U.S.at page 33, 41 S. Ct.at page 233, 65 L. Ed. 481) that 'Of course the reasons and facts for the belief the litigant entertains are an essential part of the affidavit, and must give fair support of the charge of a bent of mind that may prevent or impede impartiality of judgment.' Does the affidavit of the plaintiff here have that character? For the purposes of such consideration the facts alleged must be considered as true. The sole fact or reason alleged here is that the Court has not acceded to plaintiff's request for the appointment of a three judge court and there is no quarrel with that allegation. It is true. This fact is not, however, accompanied by any allegations of any surrounding circumstances which would justify a conclusion or belief of 'personal' bias or prejudice. What may be said as to a ruling in the case certainly applies with even greater force to an 'anticipated' ruling. The 'affidavit' before me is predicated upon that and nothing more. The Supreme Court in the Berger case, supra, reaffirmed the principle of Ex parte American Steel Barrel Co., 230 U.S. 35, 33 S. Ct. 1007, 57 L. Ed. 1379, and stated 'The case (Ex parte American Steel Barrel Co.) establishes that the bias or prejudice which can be urged against a judge must be based upon something other than rulings in the case.' 255 U.S.at page 31, 41 S. Ct.at page 232, 65 L. Ed. 481.' D.C., 75 F.Supp.at pages 548, 549.
See also Cole v. Loew's Inc., D.C., 76 F.Supp. 872.
The mere expression of dissatisfaction upon the part of a litigant demanding the disqualification of a judge may well call for the most meticulous self search upon his part to determine whether he harbors any prejudice against the litigant that may tend to tinge or deflect the stream of unpolluted justice. However, if the only basis for complaint is dissatisfaction with the decision of the judge, and there is no impediment to the unbiased and unprejudiced exercise of the judicial function it must be obvious that it is equally the duty of the judge to exercise his function and not permit the litigant by sheer whim to select the judge before whom he desires to have his case tried. Manifestly the disorganizing effect of such conduct with consequent overburdening of judges with cases not their normal work load cannot be countenanced.
In this instance there is no personal bias, prejudice or feeling upon the part of the judge against the litigant in fact or alleged in the affidavit. The ground for the motion rests only on failure of the plaintiff heretofore to achieve the judgments of the court for which he has sued. Hence it is on this 27th day of June 1950 ordered that the motion of the plaintiff that the judge disqualify himself and withdraw from hearing this case is hereby denied.