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(45 S.Ct.) Ed. 706), held that under section 64 wages Of course, this opinion must be read in the were entitled to priority over the claim of the light of the question under consideration: United States for damages occasioned by the Does section 64 require that taxes shall be bankrupt's failure to comply with a construc- paid in advance of debts secured by liens tion contract. It was there said :

which under the local law are superior to "By the statute of 1797 (now section 3466), claims for such taxes? We pointed out that and section 5101 of the Revised Statutes, all section 67d (Comp. St. $ 9651) preserves valid debts due to the United States were expressly liens and is not qualified by the direction of given priority to the wages due any operative, section 64a to discharge taxes "in advance of clerk or house servant. A different order is the payment of dividends to creditors," since prescribed by the act of 1898, and something “ dividend,' as commonly used throughout more. Labor claims are given priority, and it the act, means partial payment to general is provided that debts having priority shall be creditors." We did not undertake to decide paid in full. The only exception is ‘taxes legally due and owing by the bankrupt to the United in what order, as among themselves, taxes States, state, county, district or municipality.' and the debts specified by section 64 should These were civil obligations, not personal con- be satisfied; that point was not presented. ventions, and preference was given to them, The language of section 64 has caused but as to debts we must assume a change of much uncertainty, and widely different views purpose in the change of order And we cannot of its true meaning may be found in the opinbay that it was inadvertent. The act takes into consideration, we think, the whole range of in- ions of District Courts and Circuit Courts of debtedness of the bankrupt, national, state and Appeals. individual, and assigns the order of payment. Paragraph “a” directs that “the court shall The policy which dictated it was beneficent and order the trustee to pay all taxes legally due well might induce a postponement of the claims,

and owing

in advance of (not next even of the sovereign in favor of those who necessarily depended upon their daily labor. And preceding] the payment of dividends to credto give such claims priority could in no case itors”—that is, partial payments to general seriously affect the sovereign. To deny them creditors. City of Richmond v. Bird, supra. priority would in all cases seriously affect the claimants."

It does not un*dertake otherwise to fix the In City of Richmond v. Bird, 249 U. S. 174, them. This, we think, must be determined

precise position which shall be accorded to 177, 39 S. Ct. 186, 63 L. Ed. 543, past-due taxes were denied priority of payment over a

upon consideration of the circumstances of debt secured by a lien which the state law each case and the provisions of relevant fedrecognized as superior to the city's claim for eral and local laws-e. g., those which pre such taxes. We said:

scribe liens to secure or special priority for

tax claims. It also appears, plainly enough, “Respondents therefore must prevail unless that all debts mentioned in paragraph “b” priority over their lien is given by section 64a

must be satisfied before any payment to gento claim for taxes *which, under state law, oc- eral creditors. cupied no better position than one held by a Guarantee Co. v. Title Guaranty Co., sugeneral creditor. Section 67d, Bankruptcy Act, pra, declares that the taxes of paragraph "a" quoted supra, declares that liens given or accepted in good faith and not in contemplation of are “civil obligations, not personal convenor in fraud upon this act, shall not be affected tions, and preference was given to them” over by it. Other provisions must, of course, be the wages specified by clause (4), paragraph construed in view of this positive one. Section “b." We adhere to this as a correct state64a directs that taxes be paid in advance of div- ment of the general rule to be followed whenidends to creditors; and 'dividend.' as commonly ever it does not clearly appear that the parused throughout the act, means partial payment ticular tax has been subordinated to claims to general creditors. In section 65b, for ex

for wages by some relevant law. ample, the word occurs in contrast to payment

We find no error in the action of the court of debts which have priority. And as the local laws gave no superior right to the city's unse

below. The cause will be remanded to the cured claim for taxes we are unable to conclude District Court for further proceedings consis that Congress intended by section 64a to place tent with this opinion. it ahead of valid lienholders."

Affirmed.

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(268 U. S. 108)

line that had been surveyed in the year 1874 STATE OF NEW MEXICO V. STATE OF by John J. Major, astronomer and surveyor, COLORADO.

under the direction of the Commissioner of

the General Land Office, and (b) the line (Decided April 13, 1925.)

extending westwardly from said Macomb No. 12.

monument to the intersection of said parallel

of latitude with the one hundred and ninth 1. States Own 13Supreme Court, on determi- meridian of west longitude, as the said line

nation of boundary dispute between states, will designate commissioner to mark bound.

was surveyed and marked in the year 1868 ary.

by Ehud N. Darling, surveyor and astronoThe Supreme Court, on determining bound- mer, under the direction of the Commissioner ary dispute between states, will designate com

of the General Land Office: Provided that, missioner to run, locate, and mark the bound pursuant to the consent of the parties hereary so determined, subject to court's approval. to, the line surveyed and marked in the year

1917 by Wm. C. Perkins, surveyor, under the 2. States Om 13—Costs of suit between states direction of the Commissioner of the Land involving boundary dispute borne equally by Office, as a restoration of the said Darling the two states.

line between the 203d mile corner and asCosts of suit between states involving tronomical monument No. 8 of the Darling boundary dispute, including the compensation and expenses of commissioner designated by survey, shall be taken and deemed to be the Supreme Court to run, locate, and mark bound true location of the portion of the Darling ary as determined by such court, held to be line thus restored. borne equally by the two states.

[1] 3. Arthur D. Kidder, cadastral en

gineer, is designated as a commissioner to Original suit by the State of New Mexico run, locate, and mark the boundary between against the State of Colorado, in which the the two states as determined by this decree. State of Colorado filed a cross-bill. Decree in running the same the said Preston and for defendant, pursuant to conclusions an- Darling lines shall be retraced and restored nounced in opinion heretofore delivered. in accordance with the marks of the original

See, also, 267 U. S. 582, 45 S. Ct. 353, 69 surveys upon the ground and the approved L. Ed.

"field notes thereof on file in the General Land Messrs. Frank W Clancy, of Santa Fé, | Office, copies of which are incorporated in N M., and 0. A. Larrazolo and Jay Turley, the printed record in this cause, except that both of Albuquerque, N. M., for the State as to the portion of the said Darling line of New Mexico.

restored by said Perkins, the line marked Messrs. Victor E. Keyes and Delph E. Car- by said Perkins shall be followed. penter, both of Greeley, Colo., for the State

4. The boundary shall be marked by esof Colorado.

tablishing permanent monuments thereon,

suitably marked and at appropriate disPER CURIAM. This cause having been tances. All corners and monuments estabheard and submitted, and the court having lished by said Darling that were destroyed considered the same and announced its con- or obliterated by Howard B. Carpenter, surclusions in an opinion delivered January veyor, in accordance with the direction of . 26, 1925 (267 U. S. 30, 45 S. Ct. 202, 69 L. the Commissioner of the General Land Office, Ed. —):

in making a survey of the boundary in the It is ordered, adjudged, and decreed: years 1902 and 1903, shall be restored, and

1. The bill of the state of New Mexico is all new corners and monuments that were dismissed, and the cross-bill of the state of established by said Carpenter on his survey Colorado is sustained.

shall be destroyed.

5. The commissioner shall include in his re*2. The true and lawful boundary between port a description of the monuments estabthe state of New Mexico and the state of lished by him and of the courses and dis. Colorado consists of the following connecting tances between them. He shall file with his. lines: (a) The line extending westwardly report the field notes of his survey and a from what is known as the Preston monu- map showing the boundary line as run and ment, marking the intersection of the thirty- | marked by him; also two copies of his reseventh parallel of north latitude with the port and map. Cimarron meridian (the one hundred and 6. Before entering upon his work the third) of longitude west from Greenwich, to commissioner shall take and subscribe an what is known as the Macomb monument, oath to perform his duties faithfully and imas the said line was surveyed and marked partially. He shall prosecute the work with in the year 1900 by Levi S. Preston, deputy diligence and dispatch, and shall have ausurveyor, while engaged, under the direction thority to employ such assistants as may of the Surveyor General for New Mexico, in be needed therein, and he shall include in retracing and re-marking between said Cim- his report a statement of the work done, the arron meridian and Macomb monument the time employed, and the expenses incurred.

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

*109

*111

*

(45 S.Ct.) 7. The work of the commissioner shall be ciety incorporated in Illinois. The member subject in all its parts to the approval of to whom the certificate was issued was the the court. The ropies of the commissioner's plaintiff's husband and the ground of recovreport and map shall be promptly transmitery is that the husband had disappeared and ted by the clerk to the Governors of the two had not been heard of for ten years before states, and exceptions or objections to the this suit was brought. His expectancy of life commissioner's report, if there be such, shall according to the tables had not expired and be presented to the court, or, if it be not in the defense is a by-law of the Corporation to session, filed with the clerk, within 40 days the effect that: after the report is filed.

“Long continued absence of any member un.

heard of shall not * * give any right to re. *8. If, for any reason, there occurs a va

cover 'on any benefit certificate

until cancy in the commissionership when the the full term of the member's expectancy of court is not in session, the same may be filled life, according to the National Fraternal Conby the designation of a new commissioner by gress Table of Mortality, has expired, the Chief Justice.

and this law shall be in full force and effect any [2] 9. All the costs of the cause, including statute of any state or country or rule of comthe compensation and expenses of the com

mon law of any state or country to the contrary

notwithstanding." missioner, shall be borne in equal parts by the state of New Mexico and the state of The only facts that need be mentioned are Colorado.

that the certificate seems to have been issued in South Dakota, although there was no al

legation or proof concerning the law of that (267 U. S. 544)

State, and that it was issued in 1901, while MODERN WOODMEN OF AMERICA V.

the by-law relied upon was not adopted until MIXER.

1908. But the by-law has been held valid (Submitted March 18, 1925. Decided April 13, and binding upon the members of the Cor1925.)

poration by the Supreme Court of Illinois,

although they had become members before No. 308.

the change. Steen v. Modern Woodmen of Insurance C 712—Validity of by-law governed America, 296 Ill. 104, 129 N. E. 546, 17 A, L.

by law of state where association incorporat. R. 406. The Supreme Court of Nebraska afed, and beneficiary of one becoming member firmed a judgment for the plaintiff, seemingin another state cannot recover in violation of ly, from the cases.cited, on the ground either by-law valid in state of society's domicile. that the rule of evidence must be determined

Validity of by-law of fraternal beneficiary by the lex fori, or, more probably, that the society is determinable by law of state wherein by-law was unreasonable. Mixer v. Modern society is incorporated and where by-law, which Woodmen of America, 197 N. W. 129. The provided that long-continued absence of mem

result is that if the validity of the by-law ber should not give any right to recover on benefit certificate until full term of member's ought to be determined by the laws of Illilife expectancy had expired, had been held valid nois, the plaintiff is allowed to recover upon under law of state where society was incorporat- a state of facts which the contract expressly ed, held, beneficiary of member who had not been

*551 heard of for 10 years, but whose life expectan- stipu*lates shall not give her that right. A cy had not expired, was not entitled to recover, writ of certiorari was issued by this Court. though such member had joined society in state 265 U. S. 576, 44 S. Ct. 455, 68 L. Ed. 1187. other than its domicile.

The indivisible unity between the mem

bers of a corporation of this kind in respect On Writ of Certiorari to the Supreme of the fund from which their rights are to be Court of the State of Nebraska.

enforced and the consequence that their rights Suit by Jennie Vida Mixer against the must be determined by a single law, is elabModern Woodmen of America. On certiorariorated in Supreme Council of the Royal Arto Supreme Court of Nebraska to review canum v Green, 237 U. S. 531, 542, 35 S. Ct. judgment for plaintiff (197 N. W. 129). 724, 59 L. Ed. 1089, L. R. A. 1916A, 771. The Judgment reversed.

act of becoming a member is something more Mr. Nelson C. Pratt, of Omaha, Neb., for and abiding relation, and as marriage looks

than a contract, it is entering into a complex petitioner.

to domicil, membership looks to and must be *Messrs. J. J. McCarthy, of Ponca, Neb., governed by the law of the State granting and Geo. W. Leamer, of South Sioux City, the incorporation. We need not consider Neb., for respondent.

what other States may refuse to do, but we deem it established that they cannot attach

to membership rights against the Company *Mr. Justice HOLMES delivered the opin- that are refused by the law of the domicil. 'ion of the Court.

It does not matter that the member joined in This is a suit by the beneficiary of a cer- another State. In the above cited case tificate issued by a fraternal beneficiary so- Green became a member of a Massachusetts

*548

*550

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

corporation in New York, and the State , ation of the offense, and in mitigation of the Court held on ordinary principles of contract penalty to be imposed. that his rights were governed by New York [Ed. Note.-For other definitions, see Words law. Green v Royal Arcanum, 206 N. Y. 591, and Phrases, First and Second Series, Due 597, 100 N. E. 411. But the decision was re- Process of Law.] versed and it was held a failure to give full 5. Constitutional law Om273—Contempt faith and credit to the Massachusetts charter 53—Action of court in contempt proceedings, as construed by the Massachusetts Court that based on offense not committed in open court, Green was relieved by decree from paying as- held denial of due process of law. sessments increased by the corporation after Action of court in causing attorney's arhis contract was made. We are of opinion rest by order of attachment and in adjudging that the decision in that case governs this, him in contempt because of letter written by and that the judgment must be reversed.

attorney to judge, without according attorney Judgment reversed.

a hearing or the right to assistance of counsel, held denial of due process of law, in absence of showing that writ contained copy of court's

order charging attorney with contempt and (267 U. S. 517)

requiring him to show cause, if any, why he COOKE v. UNITED STATES.

should not be punished therefor, since the con(Argued March 20, 1925. Decided April 13, tempt was not committed in open court, and 1925.)

the proper procedure in such case is to issue

rule to show cause informing accused of nature No. 311.

of contempt charged, and according him time to

secure and consult counsel and to prepare his 1. Contempt Ow6Attorney's letter to judge defense and call witnesses. held contemptuous.

6. Contempt Ow60(2)-Evidence held admissi. Attorney's letter to judge, following return

ble in mitigation of punishment to be imposed. of unfavorable verdict for client, would not have been improper, if letter had merely ad

In contempt proceedings against attorney, vised judge of client's desire for trial of other based on attorney's letter to court, attorney's cases yet to be heard before other judge, and evidence that he had trusted to the advice of of attorney's own desire to avoid necessity of his partner in sending letter, and had not read filing affidavit of bias, under Judicial Code, 8 letter carefully, should have been considered 21 (Comp. St. § 988), by inducing regular judge by court in mitigation of the punishment to be voluntarily to withdraw, but was contemptuous, imposed. in that it was written and delivered pending 7. Judges em 15(1)—Judge on whom personal further necessary proceedings in case in which

attack has been made may, properly invite attorney's anger had been aroused, and char

other judge to preside at hearing. acterized in severe language, personally derogatory to the judge, his conduct of pending case.

Where alleged contempt constitutes a per

sonal attack on the judge, the judge may prop2. Contempt aww 52–Court may impose punish- erly ask another judge to sit in contempt pro

ment for offense committed in open court ceeding, if conditions do not make it impracwithout hearing evidence or according of- ticable, or delay may not injure public or prifender assistance of counsel.

vate right. Court must act instantly to suppress disturbance or violence, or physical obstruction, Certiorari to the United States Circuit or disrespect to court, occurring in open court, Court of Appeals for the Fifth Circuit. and may impose punishment without hearing

Clay Cooke was adjudged in contempt, and evidence or according offender assistance of counsel.

to review a judgment of the Circuit Court of

Appeals (295 F. 292), affirming the judgment, 3. Constitutional law Ow273—Punishment of he brings certiorari. Reversed and remandoffender for contempt occurring in open court

ed, with directions. held due process of law.

*518 Court, in imposing punishment for disturbance, physical obstruction, or disrespect to

*Clay Cooke and J. L. Walker were each court occurring in open court, without hearing sentenced to 30 days' imprisonment for con

*519 evidence and according offender assistance of counsel, acts with due process of law.

tempt by the United *States District Court

for the Northern District of Texas. The case 4. Constitutional law Ow273—“Due process of was taken on error to the Circuit Court of law” in contempt proceeding defined. Appeals for the Fifth Circuit, which affirmed

Where contempt was not committed in open the sentence of Cooke and reversed that of court, “due process of law” requires that the Walker. By certiorari, Cooke's sentence was accused should be advised of the charges, brought here. should be given a reasonable opportunity to

Walker was defendant in a series of suits meet them by way of defense or explanation, and should be accorded the right to assistance growing ou of the bankruptcy of the Walker of counsel, if requested, and the right to call Grain Company. One of the cases, numbered witnesses to give testimony relevant either 984, after a long jury trial resulted in a verto issue of complete exculpation, or in extenu-i dict against Walker of $56,000. The next

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

* 521

CON

(45 S.Ct.) day, while the court was open and engaged, please indicate to me at the earliest moment In the trial of another cause, and during a your honor's pleasure with respect to the mat10 minutes' recess for rest and refreshments, *ters herein presented, so that further steps Walker, by direction of Cooke, delivered to

may be avoided. the District Judge in his chambers, adjoining

"With very great respect, I beg to remain, the courtroom, and within a few feet of it, “Yours most truly,

Clay Cooke." a letter marked "Personal," as follows:

Eleven days after this, on the 26th of Feb"Fort Worth, Texas, February 15, 1923. “Hon. James C. Wilson, Judge Ů. S. District i ruary, the court directed an order to be enCourt, Fort Worth, Texas-Dear Sir: In re

tered, with a recital of facts concluding as No. 985, W. W. Wilkinson, Trustee, v. J. L.

follows: Walker; in re No.986, W. W. Wilkinson, Trus- "Therefore, since the matters of fact set tee, v. Mass. Bonding Company et al.; in re forth herein are within the personal knowledge 266, Equity, W. W. Wilkinson, Trustee, v. J. of the judge of this court, and since it is the L. Walker; in re 69, Equity, Southwestern view of this court that said letter as a whole Telegraph & Telephone Co. v. J. L. Walker; is an attack upon the honor and integrity of in re No. 1001, in Bankruptcy, Walker Grain the court, wherein it charges that the judge Company.

of this court is not big enough and broad "Referring to the above matters pending in enough to truly pass upon matters pending the District Court of the United States for the therein, and wherein it charges in effect that Northern District of Texas, at Fort Worth, I the judge of this court has allowed himself to beg personally, as a lawyer interested in the be improperly approached and influenced and cause of justice and fairness in the trial of all whispered to by interested parties against a litigated matters, and as a friend of the judge litigant in the court, and since it is the view of of this court, to suggest that the only order this court that such an act by a litigant and his that I will consent to your honor's entering in attorney constitutes misbehavior, and a any of the above-mentioned matters now pend-tempt under the law, and that the threats and ing in your honor's court is an order certifying impertinence and insult in said letter were deyour honor's disqualification on the ground of į liberately and designedly offered, with intent prejudice and bias to try said matters.

to intimidate and improperly influence the court *520

in matters then pending and soon to be passed *"You having, however, proceeded to enter upon, and to destroy the independence and imjudgment in the petition for review of the ac- partiality of the court in these very matters, tion of the referee on the summary orders it is ordered that an attachment immediately against the Farmers' & Mechanics' National issue for the said J. L. Walker and Clay Cooke, Bank and J. L. Walker and Mrs. M. M. Walker, and that the marshal of this court produce you, of course, would have to pass upon the them instanter before this court to show cause, motion for a new trial in those matters, and if any they have, why they should not be punalso having tried 984, W. W. Wilkinson, Trus- | ished for contempt.” tee, v. J. L. Walker, you will, of course, have to pass upon the motion for a new trial in said cause.

brought them to court. The following state. "I do not like to take the steps necessary to ment shows in substance what then occurred: enforce the foregoing disqualification, which to my mind, as a lawyer and an honest man, is "Judge Wilson: At this time I will call the apparent.

contempt matter against Clay Cooke and J. L. “Therefore, in the interest of friendship and Walker, attachment having been issued for in the interest of fairness, I suggest that the these respondents. only honorable thing for your honor to do in the above-styled matters is to note your hon- of Dallas, to be present and act as a friend of

*I have requested Judge J. M. McCormick, or's disqualification, or, your honor's qualification having been questioned, to exchange places the court in this proceeding, and have also and permit some judge in whom the defendant requested the district attorney, it being in its and counsel feel more confidence to try these nature a criminal matter, to act." particular matters. "Prior to the trial of cause No. 984, which,

Mr. Clay Cooke said that he had not known as just concluded, I had believed that your of the attachment until that morning, that honor was big enough and broad enough to he would like time to prepare for trial and overcome the personal prejudice against the get witnesses for their defense, that there defendant Walker, which I knew to exist, but might be estenuating circumstances which I find that in this fond hope I was mistaken, would appeal to the court's sense of fairness also my client desired the privilege of laying and justice in fixing whatever penalty might the whole facts before your honor in an en- be imposed and that he had attempted to sedeavor to overcome the effect of the slanders that have been filed in your bonor's court

cure counsel, but through illness or absence against him personally, and which have been of those he sought he had failed up to that whispered in your honor's ears against him,

time. and in proof of which not one scintilla of evi- Judge Wilson intimated that he would not dence exists in any record ever made in your postpone the matter, and said: honor's court.

“There is just this question involved, and, "My hopes in this respect having been rudely as stated by counsel representing the court, shattered, I am now appealing purely to your these facts are within the personal knowledge honor's dignity as a judge and sense of fairness of this court. Did you deliver this letter to as a man to do as in this letter requested, and the judge of this court?

The marshal arrested the defendants and

• 522

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