« ΠροηγούμενηΣυνέχεια »
tariff act of 1897.
Nor was that the purpose | livered to the referee to whom the cause is
3. A trustee in bankruptcy cannot file against the bankrupt estate, nor will the with himself his proof of his own claim delivery of such claim to his attorney, to be filed with the referee, be deemed the equivalent of a delivery to such referee.
of its enactment. | claim-trustee's own fy the effect of the decision of the circuit Bankruptcy-filing claim - trustee's claim. court in Mosle v. Bidwell, by which § 20 was construed to require the payment of duties which had accrued at the time of importation, notwithstanding a change of rate or that the goods had become exempt from duty before their withdrawal from warehouse. This construction was contrary to the general understanding of the section and the practice of the Department. This, then, 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
ary 7, 1907.
immediately preceded it, but as of general0N WRIT of Certiorari to the United
application, and this construction having been followed by the executive officers charged with the administration of the law, Congress adopted the construction by the enactment of § 33 of the act of 1897 and intended to make no other change than to require, as the basis of duty, the weight of the merchandise at the time of entry, instead of its weight at the time of its withdrawal from warehouse.
Judgment of the Circuit Court of Appeals is therefore reversed and that of the Circuit Court is affirmed and the case remanded to the latter court.
Mr. Justice Moody took no part in the decision of this case.
J. B. ORCUTT COMPANY, Charles Duncan,
CHARLES H. GREEN, et al. Bankruptcy-validity of general orderfiling claim. 1. The Supreme Court of the United States was empowered by the provision of the bankrupt act of July 1, 1898 (30 Stat. at L. 554, chap. 541, U. S. Comp. Stat. 1901, p. 3434), § 30, that all necessary rules, forms, and orders as to procedure and for carrying the act into force and effect shall be prescribed, and may be amended from time to time, by that court, to provide by general orders in bankruptcy No. 21, that proofs of debt received by any trustee shall be delivered to the referee to whom the cause is referred.
Bankruptcy-filing claim with trustee.
2. The presentation and delivery of proof of claim to the trustee in bankruptcy within a year after the adjudication is a sufficient filing within the meaning of the bankrupt act of July 1, 1898, § 57,1 when read in connection with general orders in bankruptcy No. 21, providing that proofs of debt received by any trustee shall be de1 U. S. Comp. St. 1901, p. 3443.
States Circuit Court of Appeals for the Second Circuit to review an order reversing an order of the District Court for the Northern District of New York, which, reversing the determination of a referee in bankruptcy, directed that certain claims against the bankrupt estate should be filed as of the date when delivered to the trustee. Order of the Circuit Court of Appeals reversed and that of the District Court modified by refusing the filing of the proof of claim of the trustee himself, and as so modified affirmed.
See same case below, 70 C. C. A. 101, 137 Fed. 517.
Statement by Mr. Justice Peckham:
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, and the question involved is one in regard to the sufficiency of the filing of certain proofs of claims against the bankrupts' estate.
The facts are these: Messrs. Ingalls Brothers were adjudicated bankrupts in proceedings in the district court of the United States for the northern district of New York on the 3d day of December, Soon thereafter one Charles Duncan was appointed trustee, and on the 19th day of December, 1902, he duly verified a proof of claim in his own behalf for $4,171, admitting an offset of $327. On the 1st of April, 1903, the J. B. Orcutt Company duly verified a proof of claim against the bankrupts" estate for $893.68, and in a short time delivered it to the trustee. At the first meeting of creditors Charles H. Dauchy Company presented to the referee a defective proof of claim against said bankrupts for $3,335.67, which was returned by the referee to said company for correction. Prior to January 23, 1903, the Dauchy Company duly verified another proof of claim in the same amount, prepared by Henry W. Smith, the attorney for the trustee, who had volun
The referee then certified for review by the district court the question whether his decision was correct in refusing the relief stated by the claimants.
The district court directed that the claims of the petitioning creditors should be filed as of the date when delivered to the trustee.
teered 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, which the attorney promised to do. In this he failed. When the attorney Smith received these claims from the trustee he handed them to a clerk in his office, directing him to put them with the papers in this proceeding, and shortly after told the clerk to file the proofs of the claim with the referee. The clerk neglected to do so, and some time afterwards, upon being asked in regard to it, said that he would do so immediately. This was before the expiration of the year after the adjudication. But he again failed to make the filing. The Dauchy proof, which had been left with the attorney, is lost and cannot be found, after diligent search made by the attorney for it in his office. The other two claims, the Orcutt Company and Duncan's own claim, were found in a package of papers relating to another bankruptcy proceeding. Another proof of claim, for the same amount, was made by the Dauchy Company April 2, 1904, and, with the Duncan and Orcutt proofs, was presented to the referee for filing, each proof being accompanied by a petition, dated April 2, 1904, for leave to file each of said claims nunc pro tunc as of a date prior to December 3, 1903, or for such other or further relief as might be just and proper. Smith was not the attorney for any of the claimants, and his failure to file with the referee was not by virtue of any instructions to withhold such claims from filing, nor was it known on the part of any of the claimants that he had failed to file them until more than a year after the adjudication.
Upon the presentation of these claims with the petition, other creditors of the bankrupts objected to the granting of the relief asked in the petition, upon the ground that the claims had not been seasonably presented to the court, and were barred under the provisions of § 57n of the bankruptcy act. [30 Stat. at L. 561, chap. 541, U. S. Comp. Stat. 1901, p. 3444.]
Upon the hearing of the petition for leave to file these proofs of claim, the referee to whom the case had been referred denied the petition, under the objection of other creditors, on the ground that, one year having expired subsequent to the adjudication of bankruptcy and prior to the filing of the several petitions and the presentation therewith to the referee, the referee had no power to permit the filing of said proofs of
Charles H. Green, one of the creditors of the bankrupts, thereupon appealed from the order of the district court reversing the determination made by the referee, to the United States circuit court of appeals for the second circuit, and in his appeal, in view of the position of the trustee and his refusal himself to act in the matter, Green asked that he might be permitted to prosecute the appeal for himself and the other creditors. The district court thereupon allowed the appeal and cited the respondents to appear in the circuit court of appeals. That court, having heard the case argued, reversed the decision of the district court, and affirmed that of the referee. A brief memorandum was filed by the court, in which it was stated that the referee had given a very full examination of the question of law involved, and that the court concurred in his interpretation of the statute, and that his opinion might be printed as a supplement to the memorandum of the court.
Messrs. Reginald S. Huidekoper, Charles Cowles Tucker, and J. Miller Kenyon for petitioners.
Messrs. Herbert D. Bailey and Frank H. Deal for respondents.
Mr. Justice Peckham, after making the foregoing statement, delivered the opinion of the court:
The question in this case resolves itself into one of the sufficiency of the presentation of proofs of claims of the creditors named in the foregoing statement. They were, in reality, presented and delivered to the trustee in bankruptcy before the expiration of one year after adjudication, but there was no actual filing of the claims with the referee until after the expiration of that time, when the attempt to file them with the petition was made as above stated.
The question turns upon the construction of some of the subdivisions of the 57th section of the bankruptcy act, together with the 21st general order in bankruptcy, the last part of which reads: "Proofs of debt
received by any trustee shall be delivered to the referee to whom the cause is referred."
Subsection a of § 57 provides that "proof of claims shall consist of a statement under oath, in writing, signed by a creditor, setting forth the claim, the consideration therefor, and whether any, and, if so, what, securities are held therefor; and whether any, and, if so, what, payments have been made thereon, and that the sum claimed is justly owing from the bankrupt to the creditor."
in the statute and the general order above mentioned.
The general orders of this court are provided for by § 30 of the bankruptcy act, which enacts that "all necessary rules, forms, and orders as to procedure and for carrying this act into force and effect shall be prescribed, and may be amended from time to time, by the Supreme Court of the United States." Under that section this court had the power to provide, as it has done in order 21, that "proofs of debt received by any trustee shall be delivered to Subsection e provides that "claims, after the referee to whom the cause 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."
Subsection d provides that "claims which have been duly proved shall be allowed, upon receipt by or upon presentation to the court, unless objection to their allowance shall be made by parties in interest, or their consideration be continued for cause by the court upon its own motion."
Subsection n provides that "claims shall not be proved against a bankrupt estate subsequent to one year after the adjudication."
If the presentation and delivery of these proofs of claim in the case before us with the trustee was sufficient within the meaning of the bankruptcy act, then the referee should have proceeded to determine the question of their allowance, when presented to him, the same as if they had been filed with him personally within the year subsequent to adjudication.
We have been referred to no case in this court deciding the exact question, nor is there cited any case in the lower courts wherein it has been decided, with the exception of that of Re Seff, district court of United States, southern district of New York (not reported), where the question before us seems to have been directly before that court, and the decision was in favor of the sufficiency of the filing with the trustee. The parties hereto have cited a great many cases in the lower courts deciding questions somewhat analogous to the one now before us, but none in which this question has been decided. We, therefore, think it unnecessary to refer to them.
We are of opinion, taking into consideration the various provisions of the 57th section of the bankruptcy act, in connection with No. 21 of the general orders in bankruptcy, adopted by this court, that the presentation and delivery of proofs of claim to the trustee in bankruptcy within the year after the adjudication is a filing with
statute and the order and read them together, the order being simply somewhat of an amplification of the law with respect to procedure, but nothing which can be construed as beyond the powers granted to the court by virtue of the law itself. The question is not whether anyone but the court or referee can pass upon a claim and allow it or disallow it. That must be done by the court or referee; but it is simply whether a delivery of a claim, properly proved, to the trustee, is a sufficient filing. The law provides (subsection c of § 57) that the claims, after being proved, may, for the purpose of allowance, be filed by the claimants in the court where the proceedings are pending, or before the referee, if the case has been referred; but that does not prohibit their being filed somewhere else prior to their allowance, and the order in bankruptcy in substance provides that they may be filed, after being proved, with the trustee. Such order is equivalent to saying that proofs of debt (or claim) may be received by the trustee. When they are so received by him they are in legal effect received by the court, whose officer the trustee is. Having been received by the trustee, under authority of law, the proofs of debt are thereby sufficiently filed so far as the creditors are concerned, and it is the duty of the trustee to deliver them to the referee. If the trustee inadvertently neglects to perform that duty it is the neglect of an officer of the court, and the creditors are in no way responsible therefor. The presentation and filing have been made within the time provided for and with one of the proper officers, his failure to deliver to the referee cannot be held to be a failure on the part of the creditor to properly file his proofs.
Not much benefit can be derived from an examination of the bankruptcy act of 1867 [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 judgself. 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 corporation license tax." The defense set 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 sum of $4,000, being the amount of the annual tax due by reason of the statute, which was held valid. A decree was thereupon entered, forfeiting the right of the corporation to do business within the limits of the state of Colorado until the tax was paid, and it was "absolutely and wholly deprived of all rights and privileges within the state of Colorado until such tax is paid." Upon appeal to the supreme court of the state this judgment was affirmed, and the corporation then sued out this writ of error.
And it is so ordered.
AMERICAN SMELTING & REFINING
PEOPLE OF THE STATE OF COLORADO ex rel. HENRY A. LINDSLEY, District Attorney of the Second Judicial District of the State of Colorado, Deft. in Err. Constitutional law-impairing contract obligations-taxation of foreign corporation.
A contract right to do business in the state during the corporate lifetime of domestic corporations without being subject to any greater liabilities than then were or might be imposed upon domestic corporations was acquired by a foreign corporation by virtue of its admission into the state of Colorado with the right to do business therein under the then-existing laws of that state, which, inter alia, subjected foreign corporations coming into the state to the liabilities,
restrictions, and duties which then were or might thereafter be imposed upon domestic corporations of like character, and such right was unconstitutionally impaired by Colo. act of March 22, 1902, § 65, exacting from such corporation an annual tax or license fee .n double the amount of that imposed by § 64 upon domestic corporations.*
The corporation was incorporated April 4, 1899, in New Jersey, and it is permitted by its articles of incorporation to do business in other states, and to carry on a general ore reduction, milling, mining, and other business mentioned in such articles. On April 28, 1899, it duly made application to the proper state authorities of Colorado for permission to enter and transact business in that state, under the laws thereof. At this time its capital stock was $65,000,000, divided into shares of the par value of $100 each. Subsequently, and on April 8, 1901, its capital stock was increased to $100,000,000, and the certificate of such increase was duly filed in Colorado. Section 499 (Mills'
Argued December 20, 21, 1906. Decided Jan- Annotated Statutes of Colorado), after uary 7, 1907.
N ERROR to the Supreme Court of the State of Colorado to review a judgment which affirmed a judgment of the District Court for the County of Denver, in that state, forfeiting the right of a foreign cor
making provision for the performance of certain conditions by a foreign corporation entering the state, continued: "And such corporation shall be subjected to all the liabilities, restrictions, and duties which are or may be imposed upon such corporations 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 other or greater powers." Section 500 of the same statute provided that a foreign corporation must file in the office of the secretary of state a copy of its charter, or, if incorporated under a general corporation law, a copy of such certificate of incorporation, and such general corporation law, duly certified. Section 1 of chapter 51 of the Session Laws of Colorado for 1897 provided that every foreign corporation should pay to the secretary of state, for the use of the state, a fee of $10 if the capital stock did not exceed $50,000. If in excess of that sum the corporation was to pay "the further sum of 15 cents on each and every thousand dollars of such excess, and a like fee of 15 cents on each thousand of the amount of each subsequent increase of stock. The said fee shall be due and payable upon the filing of certificate of incorporation, articles of association, or charter of said incorporation, joint stock company, or association, in the office of the secretary of state; and no such corporation, joint stock company, or association shall have or exercise any corporate powers or be permitted to do any business in this state until the said fee shall have been paid; and the secretary of state shall not file any certificate of incorporation, articles of association, charter, or certificate of the increase of capital stock, or certify or give any certificate to any such corporation, joint stock company, or association, until said fee shall have been paid to him." By § 10 of chapter 52 of the Session Laws of Colorado for 1901 it was provided that no foreign corporation could "exercise any corporate power or acquire or hold any real or personal property, franchises, rights, or privileges, or do any business or prosecute or defend in any suit, in this state, until it shall have received from the secretary of this state a certificate setting forth that full payment has been made by such corporation, joint stock company, or association of all fees and taxes prescribed by law to be paid to the secretary of state, and every such corporation, joint stock company, or association shall pay to the secretary of state for each such certificate a fee of $5."
In accordance with the provisions of § 1 of the Laws of 1897, above mentioned, the corporation paid, upon filing its certificate, April 28, 1899, to the secretary of state, for the use of the state, $9,792.50 on its original capitalization; and on May 17, 1901, the further sum of $5,250 upon its increase of capital stock to $100,000,000. Thereupon the secretary of state issued a certificate, stating the filing of the proper papers with him, and further stating that "pursuant to the provisions of § 10 of said
act (1901) I hereby certify that the said company has made full payment of all fees prescribed by law to be paid to the secre tary of state and due at the time of the issuing of this certificate, and is hereby authorized to exercise any corporate powers provided for by law." This was given under the hand and official seal of the secretary of state, and was dated on the 21st day of May, 1901. There were at this time no other statutes providing for the payment of any charges, fees, or taxes for coming into and doing business in the state of Colorado.
The corporation, upon entering the state in 1899 under its permission to enter and transact business therein, immediately commenced to erect a plant for the purpose of carrying on its business as a corporation, and before the commencement of these proceedings it had invested for that purpose in the state sums amounting to more than $5,000,000. At the time the corporation was permitted to enter and carry on its business in the state the statute of Colorado provided that the term of life of corporations formed under the laws of that state should be twenty years. After the corporation had been doing business for some three years, and on March 22, 1902, the legislature of Colorado passed an act in relation to taxes. Colo. Sess. Laws 1902, pp. 43, 160, etc.
Section 64 of that act provided that all domestic corporations should thereafter and on or before the 1st day of May of each year, or at the time of obtaining such charter or certificate of incorporation, pay "an annual state corporation license tax," to the auditor of the state, of 2 cents upon each $1,000 of its capital stock.
Section 65 provides that every foreign corporation which had theretofore obtained "the right and privilege to transact and carry on business within the limits of the state of Colorado shall, in addition to the fees and taxes now provided for by law, and as a condition precedent to its right to do any business within the limits of this state, pay annually a state license tax of 4 cents upon each $1,000 of its capital stock.
Section 66 provided that every corporation which should fail to pay the tax provided for in §§ 64 and 65 (supra should forfeit its right to do business within the state until the tax was paid, and should be deprived of all rights and privileges, and the fact of such failure might be pleaded as an absolute defense to any and all ac tions, suits, or proceedings, in law or in equity, brought or maintained by or on behalf of such corporations, in any court of competent jurisdiction within the limits of the state, until such tax was paid.