is empowered by the legislature to fix and determine the taxing district. This it did by adopting the resolution of intention to make the improvement. Its action in this regard is legislative in character, and it was not requisite that the legislature should have provided for notice before the council was authorized to act. In prescribing the district it must be presumed, as would have been the case if the legislature had itself acted directly, that it took into consideration the exceptional benefits that would ac crue to the property which it was intended should be charged with the burden, because it could inaugurate or make such an assessment upon no other basis. A notice in the present instance was required by the charter, and given, however, and, while it was for the purpose of acquiring jurisdiction, it gave the property holders an opportunity to appear and file objections to the improvement; and it was perfectly compe tent for them to raise both the objection that as a district the costs would be in excess of the exceptional benefits to the property involved, and that as it respects individual holders and between themselves the assessment would not be proportional to the relative benefits to be derived from the improvement. This is what in fact was done by the plaintiffs, as shown by the record, and upon this issue they were accorded a hearing. It was also possible for the common council to determine the matter with reasonable accuracy, as the probable cost and distributive share thereof among the holders was known to them, as was also the locality and situation of the property to be assessed."

That is, as we understand, to object not only to the rule of assessment, but to the amount of the assessment, for the court further said:

"The improvement consists of an elevated roadway ranging from 10 to 15 feet in height throughout, except at one intersection, which was a fill, and it is apparent that the cost of the work was practically uniform throughout, and the assessment against the lots was therefore as nearly proportional according to benefits as could be devised. At least, it is not apparent that there is any substantial excess of costs above benefits, nor is there such a disproportionate distribution of the burden as to justify the court in declaring the assessment an arbitrary exaction by the legislature. It is beyond the power of human ingenuity to adopt any plan or mode of assessment that will operate to produce exact uniformity, and all that may be expected is a reasonable approximation to such a standard, and thea rule adopted under the charter fulfils that condition_as* applied to the present controversy. There is no doubt that the property was benefited in excess of the costs and ex

But it is denied that the rule of the Portland charter constitutes an apportionment of the taxes, and it is said, quoting Cooley on Taxation, p. 453:

The charter therefore gives a hearing on the question of benefits to the property own-penses." er before the formation of the district to be improved. And the trial court found that the common council before making the improvement estimated the probable cost thereof, and that it "considered the question of cost of said improvement in front of each of the lots within the limits of the proposed street improvement and abutting upon said street, and also the proportionate share of the cost of improving intersections of two of the streets bounding the blocks in which such lot is situated, and found that each of said lots abutting on said street, and cach of said lots assessed for intersection of blocks, would be benefited by said improvements in an amount greater than the cost of said improvement as assessed against each of said lots." And especially as to the property of plaintiffs in error it was found that the council took into consideration whether that property was benefited by the improvements and the amount of the benefits, and that the cost assessed against the property did not exceed, or equal, the benefits which would accrue. Every requirement of due process of law, therefore, was satisfied as to plaintiffs in error.

"If such a regulation constitutes the apportionment of a tax, it must be supported when properly ordered by or under the authority of the legislature. But it has been denied. on what seem the most conclusive grounds, that this is permissible. It is not legitimate taxation, because it is lacking in one of its indispensable elements. It considers each lot by itself, compelling each to bear the burden of the improvement in front of it, without reference to any contribution to be made to the improvement by any other property; and it is consequently without any apportionment. From accidental circumstances, the major part of the cost of an important public work may be expended in front of a single lot, those circumstances not at all contributing to make the improvement more valuable to the lot thus specially burdened, perhaps even having the opposite consequence. But whatever might be the result in particular cases, the fatal vice in the system is that it provides for no taxing districts whatever."

What notice the charter of the city gives to property owners of the specific amount But if "accidental circumstances" may of the assessment against their property, take from the rule the effect of apportionand what opportunity to be heard thereon' ment, they do not prevent the application

8.

out other process.

action and prayed no special relief against | had within four months of the filing of the such assignee, he does not therefore continue petition made a general assignment under to be subject to the orders of the court with the statutes of Kentucky for the benefit of creditors to Comingor. The court adjudicated them bankrupts (92 Fed. 904), and one of them prosecuted an appeal to the circuit court of appeals for the sixth circuit, which, July 5, 1899, reversed the judgment, with directions to take further proceedings. 37 C. C. A. 337, 95 Fed. 948.

An assignee of a bankrupt cannot be deemed to have consented to the jurisdiction of the bankruptcy court to compel him by summary proceedings to pay over to the trustee in bankruptcy money of the bankrupt's estate which he had disbursed or which he had retained on account of his commissions, as such assignee before the bankruptcy proceedIngs were commenced, because he participated

in the proceedings before the referee, where he pleaded such claims at the outset, and made formal protest to the exercise of such jurisdiction before the final order was entered.

[No 309.]

On September 20, 1899, adjudication was again awarded, and on a second appeal was affirmed February 12, 1900. 40 C. C. A. 474, 100 Fed. 426.

Comingor was made a defendant to the petition in bankruptcy as assignee, but no relief was prayed as against him, and he moved the court to dismiss the petition as to him for want of jurisdiction, and also.

Argued November 13, 14, 1901. Decided without waiving the motion, tendered an an

January 27, 1902.

WRIT of Certiorari to the United

swer, but the motion was not acted on nor was his answer filed.

April 1, 1899, an injunction was granted

O`States Circuit Court of Appeals for the against Simonson, Whiteson, & Company

Sixth Circuit to review a decree which reversed a decree of the Circuit Court for the District of Kentucky requiring a general assignee of a bankrupt to pay to the trustee in bankruptcy money retained by him from the bankrupt's estate. Affirmed.

See same case below, 47 C. C. A. 51, 107 Fed. 898.

and Comingor from taking any steps affecting the bankrupts' estate, and especially in the action in the Jefferson circuit court.

May 17, 1900, the case was referred to a referee, who, on May 28, without notice, entered an order that Comingor file with him an itemized and detailed statement showing his receipts and disbursements of the money and other assets belonging to the estates of Statement by Mr. Chief Justice Fuller: Simonson, Whiteson, & Company and its December 5, 1898, Simonson, Whiteson, & members. This Comingor did, the stateCompany, the firm consisting of three part-ment showing that he had received $92,865.ners, made an assignment to Leonard Comingor for the benefit of their creditors, under the statutes of Kentucky in that behalf, and a few days thereafter Comingor brought suit involving the administration and settlement of the estate in the circuit court of Jefferson county.

77; that he had disbursed $19,876.73; that he had paid his counsel $3,200; that he had drawn as commissions $3,300; that he had paid over to the receiver of the state court $59,623.61; and that he had on hand $6,766.53. This sum of $6,766.53 was subsequently paid the trustee in bankruptcy.

The state statute provided, among other June 20, 1900, the referee on his own mo things, that the assignee should give bond tion entered an order appointing the Louiswith good security to be approved by the ville Trust Company receiver, and directing county judge, conditioned for the faithful it to apply to the Jefferson circuit court for discharge of his duties as assignee, and to an order directing the receiver of that court be recorded in the county clerk's office; that to pay over the entire fund in court, in Comthe assignee should be at all times subject ingor's action there; but providing that the to the orders and supervision of the county trust company should not appear in the Jefcourt, or the judge thereof in vacation, ex- ferson circuit court as a party to that accept as thereinafter provided; for the final tion, nor receive any less sum than the discharge of the assignee on due notice; and whole fund in that court. Application was that the assignee or any creditor or credit- accordingly made by the trust company, but ors representing one fourth of the liabilities the Jefferson circuit court declined to enter might bring suit in the circuit court for the tain the motion to withdraw the funds, be settlement of the estate, whereupon the ju- cause the trust company was not a party to risdiction of the county court should cease, the action and had no standing in court, but and the circuit court should have all the the circuit judge suggested that when the power and authority to administer and set-trust company filed its petition asserting its tle up the assigned estate conferred on the county court, in addition to its power and authority as a chancery court. Ky. Stat. 1899, p. 202, chap. 7.

Certain creditors filed a petition in the circuit court of the United States for the district of Kentucky in bankruptcy, on February 14, 1899, against the firm, to which its members tendered a plea and answer. The ground on which the petition was based was that Simonson, Whiteson, & Company

claim to the fund, as provided by $ 29 of the Code of Kentucky, the court would then be authorized to entertain such motions and make such orders in its behalf as might be necessary and proper.

The trust company appears to have been appointed trustee by the referee June 30, 1900, its bond as such trustee being then ap proved.

On the same day the referee entered an or. der that the trust company file a petition to

be made a party to the suit in the Jefferson | ance had been made by the state court therecircuit court, and thereupon such petition for, and that in contemplation of law he was filed by it as trustee, stating among oth- must be deemed to have the funds in his er things that the officers of the court had possession. been paid in full and had no claims on the The district judge referred the matter fund in court, and that the fund, to wit, back to the referee July 16, 1900, to take $46,305.03, belonged to the creditors of the testimony as to the character and value of bankrupt concern, and that nobody else had Comingor's services and those of his counany interest therein, neither officers, attor- sel. The referee proceeded to do this, pendneys, nor anybody else, and praying that ing which, on November 10, Comingor tenthe court be directed to make the trust com- dered an amended response before the refpany a defendant, and that its petition be eree, setting forth that as was shown by the taken as an answer, and that the receiver of pleadings, records, and evidence in the case, the said circuit court pay to petitioner the and the entire proceedings had, neither that said sum of $46,305.03, and "for all further court nor the referee in bankruptcy had any and proper relief." The Jefferson circuit | jurisdiction, either of the respondent or the court thereupon entered an order making matter involved, to make any such orders the trust company a party defendant, and directing that it be allowed to withdraw from the fund in court the sum of $46,305.03.

June 23 Comingor responded as to the sum of $3,398.90 that he had retained the same on account of his commissions as assignee before any bankruptcy proceedings were had, and that he relied on the fact that he would be entitled to more than that sum on the final settlement; that for services rendered to the estate he believed this court would allow at least said amount; that he was a person of no means; and had used said money from time to time, relying on the fact that it belonged to him, and had none of it left; and that he was unable to pay said money into court, as he had no money or property of any kind.

The referee held the response insufficient, and made the rule absolute. The order to show cause made on the attorneys does not appear to have been pursued, but June 28, 1900, another order was made on Comingor to show cause why he should not be required to pay to the receiver the sums of money paid to them, amounting to $3,200 in all.

June 30, 1900, Comingor responded that he had paid the $3,200 to his attorneys for services rendered him as his counsel while acting as the assignee before any proceedings in bankruptcy were taken. He further alleged that he had no money or means of any kind with which to Day, and referred to his former response and made it a part thereof, and insisted that he ought not to be compelled to pay the amount claimed.

The referee adjudged this response insufficient, and made the rule absolute.

Comingor then prayed for a review by the district court in bankruptcy of the orders adjudging his responses insufficient, and ordering him to pay to the receiver the sums of $3,398.00 and $3,200 respectively.

or require respondent to answer thereto, because the records showed that all the transactions in reference to the two sums of money took place before the petition in bankruptcy was filed, and that neither that court nor the referee in bankruptcy could proceed against respondent as attempted by order or rule to pay over or by summary process. He prayed that the rule be discharged and the orders to pay be set aside. This amended response the referee declined to entertain and it was again tendered in the district court on the filing of the referee's report.

December 11, 1900, the referee reported the evidence and his conclusions thereon, that neither Comingor nor his attorneys had rendered any services of value to the estate, and that their services had in fact been injurious to the creditors, but that the fees paid to the attorneys were usual and reasonable according to the scale of compensa. tion allowed for such services by the state court in Louisville.

The district judge confirmed the report of the referee, and as to the objection of want of jurisdiction held that it could not be entertained by the court for the reason that, by long acquiescence in that mode of procedure, respondent must be regarded as having consented thereto. Thereupon an order was entered dismissing the petition for review, and adjudging that Comingor pay to the trust company, as trustee, the said sums of $3,398.90 and $3,200, on or before Febru ary 16, 1901, to all of which Comingor excepted, and filed his petition for review in the circuit court of appeals for the sixth circuit. That court entered an order staying proceedings in the district court, and the district court affirming the orders of the thereafter on hearing reversed the decree of referee requiring Comingor to pay to the trustee the sums aforesaid, with directions to set aside its order and decree, and the orders of the referee directing Comingor to pay the trustee in bankruptcy the moneys mentioned in said orders. 47 C. C. A. 51, 107 Fed. 898.

Certiorari from this court was then granted. 181 U. S. 620, 45 L. ed. 1031.

The referee reported his findings to be that Comingor was entitled to no compensation whatever, and that he had no legal or. right to pay attorneys' fees when no allow

Mr. Augustus E. Willson for petition

Messrs. D. A. Sachs, Alexander Pope

Humphrey, Morris A. Sachs, J. G. Sachs, trustee, or by any other person, filed against and W. M. Smith for respondent.

Mr. Chief Justice Fuller delivered the opinion of the court:

The circuit court of appeals was called on to review the orders of the referee as confirmed by the district judge, by which Comingor was required to pay over the sums of $3,398.90 and $3,200 respectively, and the recommendation that he be dealt with for not complying therewith.

Comingor to recover these sums, and the orders were entered by the referee on the record as it stood, so that there was no pretense whatever of a plenary suit in that court, in form or in substance.

The proceeding was purely summary. The determination of the merits on the facts was not open to revision by appeal or writ of error under the bankrupt law. If Com ingor had been entitled to a trial by jury, he could not have obtained it as of right. The collection of the amounts found due would be enforceable, not by execution, but by commitment.

"We think that it could not have been the intention of Congress thus to deprive parties claiming property of which they were in possession of the usual processes of the law in defense of their rights." Marshall v. Knox, 16 Wall. 556, 21 L. ed. 484; Smith v. Mason, 14 Wall. 419, 20 L. ed. 748.

The question is whether the district court had jurisdiction to finally adjudicate the merits in this proceeding.

On the face of his responses, from first to last, it appeared that Comingor insisted that the $3,200 had been paid by him to his counsel while they were acting for him, before the bankruptcy proceedings were commenced, for professional services ren dered to him as assignee; and that he had retained and expended the $3,398.90 as his commissions as assignee in reliance on the belief that he was entitled to that amount on final settlement. He thus asserted a claim to each of these sums adversely to the bankrupt, and as outstanding when the petition in bankruptcy was filed, and these We have just held in Mueller v. Nugent, claims were in fact passed upon by the ref- 184 U. S. 1, ante, 269, 22 Sup. Ct. Rep. 269, eree and the district judge as being adverse. that the district court has power to asThis brought the controversy within the certain whether in the particular instance ruling in Bardes v. First Nat. Bank, 178 U. the claim asserted is an adverse claim exS. 524, 44 L. ed. 1175, 20 Sup. Ct. Rep. 1000, isting at the time the petition was filed. and the questions attempted to be litigated And according to the conclusion reached the before the referee and in the district court court will retain jurisdiction or decline to as to the allowance of the two amounts adjudicate the merits. Jurisdiction as to could only be raised in the district court by the subject-matter may be limited in vaconsent, and then only by plenary suit. If rious ways, as to civil and criminal cases, the jurisdiction of the district court was not cases at common law or in equity or in adconsented to, then the state court, under miralty, probate cases, or cases under spe the circumstances of this case, was the prop-cial statutes, to particular classes of perer forum, and the matters in dispute were to be disposed of there.

The district court held that Comingor had voluntarily accepted its jurisdiction, and that he had also consented that the court might proceed against him summarily. As the circuit court of appeals said, speaking through Severens, J.: "It was upon the ground of the petitioner's implied consent to the mode adopted that the district judge justified it."

sons, to proceedings in particular modes, and so on. In many cases jurisdiction may depend on the ascertainment of facts involving the merits, and in that sense the court exercises jurisdiction in disposing of the preliminary inquiry, although the result may be that it finds that it cannot go farther. And where, in a case like that before us, the court erroneously retains jurisdic tion to adjudicate the merits, its action can

be corrected on review.

So far as this view rested on the conten- We are of opinion that even if Comingor tion that, as Comingor was joined with the could have consented to be pursued in this bankrupts in the petition for adjudication, manner, he did not so consent. He was he therefore continued to be subject to the ruled to show cause, and the cause he orders of the court without other process, showed defeated jurisdiction over the subwe agree with the circuit court of appeals ject-matter, that is, jurisdiction to proceed that it cannot be sustained. As we under- summarily. He did not come in voluntaristand the record, the petition in bankrupt-ly, but in obedience to peremptory orders, ey set up no cause of action and prayed no special relief against Comingor, and he was apparently made a defendant because adjudication would put an end to further action by him as assignee. Clearly, as the circuit court of appeals points out, it would be inadmissible to permit creditors to deprive an assignee of his right to have his claims adjudicated by the proper court and in the customary mode of proceeding, by the device of making him a party to the petition for an adjudication and so attempting to bring him into the case for all purposes. Nor in this matter was any petition by the

and although he participated in the proceedings before the referee, he had pleaded his claims in the outset, and he made his formal protest to the exercise of jurisdiction before the final order was entered. He had been restrained from settling his accounts in the state court in the action pending there, and the district court, instead of dissolving the injunction declining jurisdiction, and leaving the litigation to the state court, either in due course or by plenary suit, adjudicated the merits and entered a peremptory order that he should pay over, disobedience of which order was punishable