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ary 7, 1907.

tariff act of 1897. Nor was that the purpose | livered to the referee to whom the cause is of its enactment. It was enacted to nulli- referred. fy the effect of the decision of the circuit Bankruptcy -- filing claim - trustee's own court in Mosle v. Bidwell, by which & 20 was

claim. construed to require the payment of duties

3. A trustee in bankruptcy cannot file which had accrued at the time of importa- against the bankrupt estate, nor will the

own tion, notwithstanding a change of rate or delivery of such claim to his attorney, to be that the goods had become exempt from filed with the referee, be deemed the duty before their withdrawal from ware equivalent of a delivery to such referee. house. This construction was contrary to the general understanding of the section and

[No. 116.] the practice of the Department. This, then,

Decided Janu. is our view: The Attorney General having Argued December 6, 1906. construed the proviso of § 50 of the act of 1890 as not restricted to the matter which immediately preceded it, but as of general | O WRIT of Certiorari to the United

States Circuit Court of Appeals for the application, and this construction having second Circuit to review an order reversing been followed by the executive officers an order of the District Court for the charged with the administration of the law, Northern District of New York, which, reCongress adopted the construction by the versing the determination of a referee in enactment of g 33 of the act of 1897 and in- bankruptcy, directed that certain claims tended to make no other change than to re-against the bankrupt estate should be filed quire, as the basis of duty, the weight of as of the date when delivered to the trusthe merchandise at the time of entry, in- tee. Order of the Circuit Court of Appeals stead of its weight at the time of its with-reversed and that of the District Court drawal from warehouse.

modified by refusing the filing of the proof Judgment of the Circuit Court of Appeals of claim of the trustee himself, and as so is therefore reversed and

that of the modified affirmed. Circuit Court is affirmed and the case re

See same case below, 70 C. C. A. 101, 137 manded to the latter court.

Fed. 517.

V.

Mr. Justice Moody took no part in the Statement by Mr. Justice Peckham: decision of this case.

This case comes here upon return to a writ of certiorari, issued by this court to the circuit court of appeals of the second

circuit. It is a proceeding in bankruptcy, J. B. ORCUTT COMPANY, Charles Duncan, and the question involved is one in regard

Charles H. Dauchy Company, and Charles to the sufficiency of the filing of certain Duncan, Trustee, Petitioners,

proofs of claims against the bankrupts' es

tate. CHARLES H. GREEN, et al.

The facts are these: Messrs. Ingalls

Brothers were adjudicated bankrupts in proBankruptcy---validity of general orderfiling claim.

ceedings in the district court of the United 1. The Supreme Court of the United States for the northern district of New States was empowered by the provision of York on the 3d day of December, 1902. the bankrupt act of July 1, 1898 (30 Stat. Soon thereafter one Charles Duncan was apat L. 554, chap. 541, U. S. Comp. Stat. 1901, pointed trustee, and on the 19th day of p. 3434), § 30, that all necessary rules, December, 1902, he duly verified a proof of forms, and orders as to procedure and for claim in his own behalf for $4,171, admitcarrying the act into force and effect shall ting an offset of $327. On the 1st of April, be prescribed, and may be amended from time to time, by that court, to provide by 1903, the J. B. Orcutt Company duly verigeneral orders in bankruptcy No. 21, that fied a proof of claim against the bankrupts” proofs of debt received by any trustee shall estate for $893.68, and in a short time debe delivered to the referee to whom the livered it to the trustee. At the first meetcause is referred.

ing of creditors Charles H. Dauchy ComBankruptcy-filing claim with trustee. pany presented to the referee a defective

2. The presentation and delivery of proof of claim against said bankrupts for proof of claim to the trustee in bankruptcy $3,335.67, which was returned by the referee within a year after the adjudication is a to said company for correction. Prior to sufficient filing within the meaning of the bankrupt act of July 1, 1898, § 57,1 when January 23, 1903, the Dauchy Company duly read in connection with general orders in verified another proof of claim in the same bankruptcy No. 21, providing that proofs amount, prepared by Henry W. Smith, the of debt received by any trustee shall be de- attorney for the trustee, who had volunteered to prepare the same so as to comply claims, and that neither the referee nor the with the rules, and on or about March 15, court had any discretionary power to per1903, the Dauchy Company delivered this mit either of said proofs of claims to be proof of claim to the trustee. Prior to June filed, either nunc pro tunc or otherwise. An 1, 1903, the trustee delivered all three order denying the relief asked was duly claims to said Henry W. Smith, with direc-entered. tions to file the same with the referee, The referee then certified for review by which the attorney promised to do. In this the district court the question whether his he failed. When the attorney Smith re- decision was correct in refusing the relief ceived these claims from the trustee he stated by the claimants. handed them to a clerk in his office, direct- The district court directed that the claims ing him to put them with the papers in this of the petitioning creditors should be filed proceeding, and shortly after told the clerk as of the date when delivered to the trustee. to file the proofs of the claim with the Charles H. Green, one of the creditors of referee. The clerk neglected to do so, and the bankrupts, thereupon appealed from the some time afterwards, upon being asked in order of the district court reversing the deregard to it, said that he would do so im- termination made by the referee, to the mediately. This was before the expiration United States circuit court of appeals for of the year after the adjudication. But he the second circuit, and in his appeal, in view again failed to make the filing. The Dauchy of the position of the trustee and his refusal proof, which had been left with the at- himself to act in the matter, Green asked torney, is lost and cannot be found, after that he might be permitted to prosecute diligent search made by the attorney for the appeal for himself and the other creditit in his office. The other two claims, the ors. The district court thereupon allowed Orcutt Company and Duncan's own claim, the appeal and cited the respondents to apwere found in a package of papers relating pear in the circuit court of appeals. That to another bankruptcy proceeding. Another court, having heard the case argued, reproof of claim, for the same amount, was versed the decision of the district court, and made by the Dauchy Company April 2, affirmed that of the referee. A brief 1904, and, with the Duncan and Orcutt memorandum was filed by the court, in proofs, was presented to the referee for which it was stated that the referee had filing, each proof being accompanied by a given a very full examination of the quespetition, dated April 2, 1904, for leave to tion of law involved, and that the court confile each of said claims nunc pro tunc as of curred in his interpretation of the statute, a date prior to December 3, 1903, or for such and that his opinion might be printed as a other or further relief as might be just and supplement to the memorandum of the proper. Smith was not the attorney for any court. of the claimants, and his failure to file with the referee was not by virtue of any in- Messrs. Reginald S. Huidekoper, Charles structions to withhold such claims from Cowles Tucker, and J. Miller Kenyon for filing, nor was it known on the part of any petitioners. of the claimants that he had failed to file Messrs. Herbert D. Bailey and Frank H. them until more than a year after the ad- Deal for respondents. judication.

1 U. S. Comp. St. 1901, p. 3443.

Upon the presentation of these claims Mr. Justice Peckham, after making the with the petition, other creditors of the foregoing statement, delivered the opinion bankrupts objected to the granting of the of the court: relief asked in the petition, upon the ground The question in this case resolves itself that the claims had not been seasonably into one of the sufficiency of the presentapresented to the court, and were barred tion of proofs of claims of the creditors under the provisions of g 57n of the bank- named in the foregoing statement. They ruptcy act. [30 Stat. at L. 561, chap. 541, were, in reality, presented and delivered to U. S. Comp. Stat. 1901, p. 3444.]

the trustee in bankruptcy before the exUpon the hearing of the petition for leave piration of one year after adjudication, but to file these proofs of claim, the referee to there was no actual filing of the claims with whom the case had been referred denied the the referee until after the expiration of that petition, under the objection of other time, when the attempt to file them with creditors, on the ground that, one year hav- the petition was made as above stated. ing expired subsequent to the adjudication The question turns upon the construction of bankruptcy and prior to the filing of the of some of the subdivisions of the 57th several petitions and the presentation there- section of the bankruptcy act, together with with to the referee, the referee had no the 21st general order in bankruptcy, the power to permit the filing of said proofs of I last part of which reads: "Proofs of debt received by any trustee shall be delivered ) in the statute and the general order above to the referee to whom the cause is re- mentioned. ferred.”

The general orders of this court are proSubsection a of § 57 provides that “proof vided for by § 30 of the bankruptcy act, of claims shall consist of a statement under which enacts that "all necessary rules, oath, in writing, signed by a creditor, set- forms, and orders as to procedure and for ting forth the claim, the consideration carrying this act into force and effect shall therefor, and whether any, and, if so, what, be prescribed, and may be amended from securities are held therefor; and whether time to time, by the Supreme Court of the any, and, if so, what, payments have been United States." Under that section this made thereon, and that the sum claimed is court had the power to provide, as it has justly owing from the bankrupt to the done in order 21, that “proofs of debt recreditor."

ceived by any trustee shall be delivered to Subsection c provides that "claims, after the referee to whom the cause is rebeing proved, may, for the purpose of al- ferred." There is nothing in that provision lowance, be filed by the claimants in the inconsistent with, or opposed to, anything court where the proceedings are pending, or stated in the bankruptcy law upon the subbefore the referee if the case has been re-ject, and we must, therefore, take the ferred.”

statute and the order and read them toSubsection d provides that "claims which gether, the order being simply somewhat of have been duly proved shall be allowed, an amplification of the law with respect to upon receipt by or upon presentation to the procedure, but nothing which can be concourt, unless objection to their allowance strued as beyond the powers granted to the shall be made by parties in interest, or court by virtue of the law itself. The questheir consideration be continued for cause tion is not whether anyone but the court by the court upon its own motion.” or referee can pass upon a claim and allow

Subsection n provides that "claims shall it or disallow it. That must be done by the not be proved against a bankrupt estate court or referee; but it is simply whether subsequent to one year after the adjudi- a delivery of a claim, properly proved, to cation.”

the trustee, is a sufficient filing. The law If the presentation and delivery of these provides (subsection c of § 57) that the proofs of claim in the case before us with claims, after being proved, may, for the the trustee was sufficient within the mean- purpose of allowance, be filed by the claiming of the bankruptcy act, then the referee ants in the court where the proceedings are should have proceeded to determine the pending, or before the referee, if the case question of their allowance, when presented has been referred; but that does not proto him, the same as if they had been filed hibit their being filed somewhere else prior with him personally within the year subse to their allowance, and the order in bankquent to adjudication.

ruptcy in substance provides that they may We have been referred to no case in this be filed, after being proved, with the truscourt deciding the exact question, nor is tee. Such order is equivalent to saying there cited any case in the lower courts that proofs of debt (or claim) may be rewherein it has been decided, with the excep-ceived by the trustee. When they are so tion of that of Re Seff, district court of received by him they are in legal effect reUnited States, southern district of New ceived by the court, whose officer the trusYork (not reported), where the question be- tee is. Having been received by the fore us seems to have been directly before trustee, under authority of law, the proofs that court, and the decision was in favor of of debt are thereby sufficiently filed so far the sufficiency of the filing with the trustee. as the creditors are concerned, and it is The parties hereto have cited a great many the duty of the trustee to deliver them to cases in the lower courts deciding questions the referee. If the trustee inadvertently somewhat analogous to the one now before neglects to perform that duty it is the us, but none in which this question has been neglect of an officer of the court, and the decided. We, therefore, think it unneces-creditors are in no way responsible theresary to refer to them.

for. The presentation and filing have been We are of opinion, taking into considera- made within the time provided for and with tion the various provisions of the 57th one of the proper officers, his failure to desection of the bankruptcy act, in connection liver to the referee cannot be held to be a with No. 21 of the general orders in bank- failure on the part of the creditor to properruptcy, adopted by this court, that the ly file his proofs. presentation and delivery of proofs of claim Not much benefit can be derived from an to the trustee in bankruptcy within the examination of the bankruptcy act of 1867 year after the adjudication is a filing with. | [14 Stat. at L. 517, chap. 176], in reference to the provisions therein contained, granting | poration to do business in the state until power to the justices of the Supreme Court a certain tax shall be paid. Reversed and to frame general orders for the purpose remanded for further proceedings. named. See § 10, bankruptcy act of 1867. See same case below (Colo.) 82 Pac. 531. We think it plain that, so far as this matter is concerned, the Supreme Court had

Statement by Mr. Justice Peckham: full power to make the general order it did.

The writ of error in this case brings up Different considerations, however, apply for review the judgment of the supreme to the one claim made by the trustee him- court of Colorado, which affirmed the judg. self. We do not think that in any event ment of the trial court, forfeiting the right a trustee could file with himself his proof of the plaintiff in error, hereinafter called of his own claim against the estate of the the corporation, to do business as a foreign bankrupt. General principles of law forbid corporation within the state until a certain that he should so act in his own case. And tax therein adjudged to be due should be his delivery of his own claim to his at-paid. The corporation refused to pay the torney could not make such delivery stand tax, and thereupon, at the instance of the in the place of a delivery to the referee.

district attorney and the attorney general These views lead to a reversal of the of the state, a proceeding in the nature of order of the Circuit Court of Appeals, and quo warranto against the corporation was the affirmance of the order made by the commenced for the purpose of obtaining a District Court, with the modification, re- forfeiture of the franchise of the corporafusing the filing of the proof of claim of the tion for its failure to pay the “annual state trustee himself.

corporation license tax.” The defense set And it is so ordered.

up that the tax was a violation of the Federal Constitution as impairing the obligation of a contract, and in other particulars named. Upon the trial the court found that

there was due to the state of Colorado the AMERICAN SMELTING & REFINING

sum of $4,000, being the amount of the anCOMPANY, Plff. in Err.,

nual tax due by reason of the statute, which V. PEOPLE OF THE STATE OF COLORADO

was held valid. A decree was thereupon ex rel. HENRY A. LINDSLEY, District entered, forfeiting the right of the corpoAttorney of the Second Judicial District ration to do business within the limits of of the State of Colorado, Deft. in Err. the state of Colorado until the tax was paid,

and it was “absolutely and wholly deprived Constitutional law-impairing contract obli- of all rights and privileges within the state gations—taxation of foreign corporation. of Colorado until such tax is paid." Upon

A contract right to do business in appeal to the supreme court of the state the state during the corporate lifetime of this judgment was affirmed, and the corpodomestic corporations without being subject to any greater liabilities than then were or ration then sued out this writ of error. might be imposed upon domestic corpora

The corporation was incorporated April 4, tions was acquired by a foreign corporation 1899, in New Jersey, and it is permitted by by virtue of its admission into the state of its articles of incorporation to do business Colorado with the right to do business there in other states, and to carry on a general in under the then-existing laws of that state, ore reduction, milling, mining, and other which, inter alia, subjected foreign corpora- l business mentioned in such articles. tions coming into the state to the liabilities, April 28, 1899, it duly made application to restrictions, and duties which then were or the proper state authorities of Colorado for might thereafter be imposed upon corporations of like character, and such right permission to enter and transact business in was unconstitutionally impaired by Colo. act that state, under the laws thereof. At this of March 22, 1902, § 65, exacting from such time its capital stock was $65,000,000, dicorporation an annual tax or license fee .n vided into shares of the par value of $100 double the amount of that imposed by $ 64 each. Subsequently, and on April 8, 1901, upon domestic corporations.*

its capital stock was increased to $100,000,

000, and the certificate of such increase was [No. 143.]

duly filed in Colorado. Section 499 (Mills' Argued December 20, 21, 1906. Decided Jan-Annotated Statutes of Colorado), after uary 7, 1907.

making provision for the performance of

certain conditions by a foreign corporation N ERROR to the Supreme Court of the entering the state, continued:

State of Colorado to review a judgment corporation shall be subjected to all the which affirmed a judgment of the District liabilities, restrictions, and duties which are Court for the County of Denver, in that or may be imposed upon such corporations state, forfeiting the right of a foreign cor- l of like character organized under the gen

*Ed. Note.-For cases in point, see Cent. Dig. vol. 10, Constitutional Law, $ 301.

eral laws of this state, and shall have no act (1901) I hereby certify that the said other or greater powers.” Section 500 of company has made full payment of all fees the same statute provided that a foreign prescribed by law to be paid to the secre. corporation must file in the office of the tary of state and due at the time of the is. secretary of state a copy of its charter, or, suing of this certificate, and is hereby au. if incorporated under a general corporation thorized to exercise any corporate powers law, a copy of such certificate of incorpo- provided for by law.” This was given unration, and such general corporation law, der the hand and official seal of the secre. duly certified. Section 1 of chapter 51 tary of state, and was dated on the 21st of the Session Laws of Colorado for day of May, 1901. There were at this time 1897 provided that every foreign cor- no other statutes providing for the payment poration should pay to the secretary of of any charges, fees, or taxes for coming state, for the use of the state, a fee of into and doing business in the state of Col. $10 if the capital stock did not exceed orado. $50,000. If in excess of that sum the cor

The corporation, upon entering the state poration was to pay “the further sum of in 1899 under its permission to enter and 15 cents on each and every thousand dol- transact business therein, immediately comlars of such excess, and a like fee of 15 menced to erect a plant for the purpose of cents on each thousand of the amount of carrying on its business as a corporation, each subsequent increase of stock. The said and before the commencement of these profee shall be due and payable upon the filo ceedings it had invested for that purpose ing of certificate of incorporation, articles in the state sums amounting to more than of association, or charter of said incorpora- | $5,000,000. At the time the corporation was tion, joint stock company, or association, permitted to enter and carry on its business in the office of the secretary of state; and in the state the statute of Colorado prono such corporation, joint stock company, vided that the term of life of corporations or association shall have or exercise any cor- formed under the laws of that state should porate powers or be permitted to do any busi- be twenty years. After the corporation had ness in this state until the said fee shall been doing business for some three years, have been paid; and the secretary of state and on March 22, 1902, the legislature of shall not file any certificate of incorporation, Colorado passed an act in relation to taxes. articles of association, charter, or certificate Colo. Sess. Laws 1902, pp. 43, 160, etc. of the increase of capital stock, or certify or Section 64 of that act provided that all give any certificate to any such corpora- domestic corporations should thereafter and tion, joint stock company, or association, on or before the 1st day of May of each until said fee shall have been paid to him.” year, or at the time of obtaining such charBy $ 10 of chapter 52 of the Session Laws ter or certificate of incorporation, pay "an of Colorado for 1901 it was provided that annual state corporation license tax," to no foreign corporation could “exercise any the auditor of the state, of 2 cents upon corporate power or acquire or hold any real each $1,000 of its capital stock. or personal property, franchises, rights, or Section 65 provides that every foreign privileges, or do any business or prosecute corporation which had theretofore obtained or defend in any suit, in this state, until the right and privilege to transact and it shall have received from the secretary of carry on business within the limits of the this state a certificate setting forth that state of Colorado shall, in addition to the full payment has been made by such corpo- fees and taxes now provided for by law, ration, joint stock company, or association and as a condition precedent to its right to of all fees and taxes prescribed by law to do any business within the limits of this be paid to the secretary of state, and every state, pay annually

a state lisuch corporation, joint stock company, or cense tax of 4 cents upon each $1,000 of its association shall pay to the secretary of capital stock. state for each such certificate a fee of $5.” Section 66 provided that every corpora

In accordance with the provisions of $ tion which should fail to pay the tax pro1 of the Laws of 1897, above mentioned, vided for in SS 64 and 65 (supra should the corporation paid, upon filing its certifi. forfeit its right to do business within the cate, April 28, 1899, to the secretary of state until the tax was paid, and should state, for the use of the state, $9,792.50 on be deprived of all rights and privileges, and its original capitalization; and on May 17, the fact of such failure might be pleaded 1901, the further sum of $5,250 upon its in- as an absolute defense to any and all ac

of capital stock to $100,000,000. tions, suits, or proceedings, in law or in Thereupon the secretary of state issued a equity, brought or maintained by or on becertificate, stating the filing of the proper half of such corporations, in any court of papers with him, and further stating that competent jurisdiction within the limits of "pursuant to the provisions of § 10 of said 'the state, until such tax was paid.

crease

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