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(45 S.Ct.)

Ed. 706), held that under section 64 wages were entitled to priority over the claim of the United States for damages occasioned by the bankrupt's failure to comply with a construction contract. It was there said:

"By the statute of 1797 (now section 3466), and section 5101 of the Revised Statutes, all debts due to the United States were expressly given priority to the wages due any operative, clerk or house servant. A different order is prescribed by the act of 1898, and something more. Labor claims are given priority, and it is provided that debts having priority shall be paid in full. The only exception is 'taxes legally due and owing by the bankrupt to the United States, state, county, district or municipality.' These were civil obligations, not personal conventions, and preference was given to them, but as to debts we must assume a change of purpose in the change of order And we cannot say that it was inadvertent. The act takes into consideration, we think, the whole range of indebtedness of the bankrupt, national, state and individual, and assigns the order of payment. The policy which dictated it was beneficent and well might induce a postponement of the claims,

even of the sovereign in favor of those who necessarily depended upon their daily labor. And to give such claims priority could in no case seriously affect the sovereign. To deny them priority would in all cases seriously affect the claimants."

In City of Richmond v. Bird, 249 U. S. 174, 177, 39 S. Ct. 186, 63 L. Ed. 543, past-due taxes were denied priority of payment over a debt secured by a lien which the state law recognized as superior to the city's claim for

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to claim for taxes *which, under state law, occupied no better position than one held by a general creditor. Section 67d, Bankruptcy Act, quoted supra, declares that liens given or accepted in good faith and not in contemplation of or in fraud upon this act, shall not be affected by it. Other provisions must, of course, be construed in view of this positive one. Section 64a directs that taxes be paid in advance of dividends to creditors; and 'dividend.' as commonly used throughout the act, means partial payment to general creditors. In section 65b, for example, the word occurs in contrast to payment of debts which have priority. And as the local laws gave no superior right to the city's unsecured claim for taxes we are unable to conclude that Congress intended by section 64a to place it ahead of valid lienholders."

Of course, this opinion must be read in the light of the question under consideration: Does section 64 require that taxes shall be paid in advance of debts secured by liens which under the local law are superior to

claims for such taxes? We pointed out that section 67d (Comp. St. § 9651) preserves valid liens and is not qualified by the direction of section 64a to discharge taxes "in advance of the payment of dividends to creditors," since "dividend,' as commonly used throughout the act, means partial payment to general creditors." We did not undertake to decide in what order, as among themselves, taxes and the debts specified by section 64 should be satisfied; that point was not presented.

The language of section 64 has caused much uncertainty, and widely different views of its true meaning may be found in the opinions of District Courts and Circuit Courts of Appeals.

Paragraph "a" directs that "the court shall order the trustee to pay all taxes legally due and owing * * in advance of [not next

preceding] the payment of dividends to creditors"-that is, partial payments to general creditors. City of Richmond v. Bird, supra.

*5

It does not undertake otherwise to fix the them. This, we think, must be determined precise position which shall be accorded to upon consideration of the circumstances of each case and the provisions of relevant federal and local laws-e. g., those which prescribe liens to secure or special priority for tax claims. It also appears, plainly enough, that all debts mentioned in paragraph "b" must be satisfied before any payment to general creditors.

Guarantee Co. v. Title Guaranty Co., supra, declares that the taxes of paragraph "a" are "civil obligations, not personal conventions, and preference was given to them" over the wages specified by clause (4), paragraph "b." We adhere to this as a correct statement of the general rule to be followed whenever it does not clearly appear that the particular tax has been subordinated to claims for wages by some relevant law. We find no error in the action of the court below. The cause will be remanded to the District Court for further proceedings consis tent with this opinion. Affirmed.

(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.

(Decided April 13, 1925.)
No. 12.

1. States 13-Supreme Court, on determi-
nation of boundary dispute between states,
will designate commissioner to mark bound-
ary.

under the direction of the Commissioner of the General Land Office, and (b) the line extending westwardly from said Macomb monument to the intersection of said parallel of latitude with the one hundred and ninth

meridian of west longitude, as the said line was surveyed and marked in the year 1868 by Ehud N. Darling, surveyor and astrono

The Supreme Court, on determining bound-mer, under the direction of the Commissioner ary dispute between states, will designate commissioner to run, locate, and mark the boundary so determined, subject to court's approval. 2. States 13-Costs of suit between states involving boundary dispute borne equally by

the two states.

Costs of suit between states involving boundary dispute, including the compensation and expenses of commissioner designated by Supreme Court to run, locate, and mark boundary as determined by such court, held to be borne equally by the two states.

Original suit by the State of New Mexico against the State of Colorado, in which the State of Colorado filed a cross-bill. Decree for defendant, pursuant to conclusions announced in opinion heretofore delivered. See, also, 267 U. S. 582, 45 S. Ct. 353, 69 L. Ed.

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Messrs. Frank W Clancy, of Santa Fé, N M., and O. A. Larrazolo and Jay Turley, both of Albuquerque, N. M., for the State of New Mexico.

Messrs. Victor E. Keyes and Delph E. Carpenter, both of Greeley, Colo., for the State of Colorado.

PER CURIAM. This cause having been heard and submitted, and the court having considered the same and announced its conclusions in an opinion delivered January 26, 1925 (267 U. S. 30, 45 S. Ct. 202, 69 L. Ed.):

It is ordered, adjudged, and decreed: 1. The bill of the state of New Mexico is dismissed, and the cross-bill of the state of Colorado is sustained.

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*2. The true and lawful boundary between the state of New Mexico and the state of Colorado consists of the following connecting lines: (a) The line extending westwardly from what is known as the Preston monument, marking the intersection of the thirtyseventh parallel of north latitude with the Cimarron méridian (the one hundred and third) of longitude west from Greenwich, to what is known as the Macomb monument, as the said line was surveyed and marked in the year 1900 by Levi S. Preston, deputy surveyor, while engaged, under the direction of the Surveyor General for New Mexico, in retracing and re-marking between said Cimarron meridian and Macomb monument the

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of the General Land Office: Provided that, pursuant to the consent of the parties hereto, the line surveyed and marked in the year 1917 by Wm. C. Perkins, surveyor, under the direction of the Commissioner of the Land Office, as a restoration of the said Darling line between the 203d mile corner and astronomical monument No. 8 of the Darling survey, shall be taken and deemed to be the true location of the portion of the Darling line thus restored.

[1] 3. Arthur D. Kidder, cadastral engineer, is designated as a commissioner to run, locate, and mark the boundary between the two states as determined by this decree. In running the same the said Preston and Darling lines shall be retraced and restored in accordance with the marks of the original surveys upon the ground and the approved

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*field notes thereof on file in the General Land

Office, copies of which are incorporated in the printed record in this cause, except that as to the portion of the said Darling line restored by said Perkins, the line marked by said Perkins shall be followed.

4. The boundary shall be marked by establishing permanent monuments thereon, suitably marked and at appropriate distances. All corners and monuments established by said Darling that were destroyed or obliterated by Howard B. Carpenter, surveyor, in accordance with the direction of. the Commissioner of the General Land Office, in making a survey of the boundary in the years 1902 and 1903, shall be restored, and all new corners and monuments that were established by said Carpenter on his survey shall be destroyed.

5. The commissioner shall include in his report a description of the monuments established by him and of the courses and distances between them. He shall file with his. report the field notes of his survey and a map showing the boundary line as run and marked by him; also two copies of his report and map.

6. Before entering upon his work the commissioner shall take and subscribe an oath to perform his duties faithfully and impartially. He shall prosecute the work with diligence and dispatch, and shall have authority to employ such assistants as may be needed therein, and he shall include in his report a statement of the work done, the time employed, and the expenses incurred.

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

(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 copies of the commissioner's plaintiff's husband and the ground of recovreport and map shall be promptly transmit-ery 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.

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"Long continued absence of any member unheard of shall not * * give any right to recover on any benefit certificate until the full term of the member's expectancy of life, according to the National Fraternal Congress Table of Mortality, has expired, and this law shall be in full force and effect any statute of any state or country or rule of common law of any state or country to the contrary notwithstanding."

* *

The only facts that need be mentioned are that the certificate seems to have been issued in South Dakota, although there was no allegation or proof concerning the law of that State, and that it was issued in 1901, while the by-law relied upon was not adopted until 1908. But the by-law has been held valid

(Submitted March 18, 1925. Decided April 13, and binding upon the members of the Cor

Insurance

1925.) No. 308.

712-Validity of by-law governed by law of state where association incorporated, and beneficiary of one becoming member in another state cannot recover in violation of by-law valid in state of society's domicile.

Validity of by-law of fraternal beneficiary society is determinable by law of state wherein society is incorporated and where by-law, which provided that long-continued absence of member should not give any right to recover on benefit certificate until full term of member's life expectancy had expired, had been held valid under law of state where society was incorporated, held, beneficiary of member who had not been heard of for 10 years, but whose life expectancy had not expired, was not entitled to recover, though such member had joined society in state other than its domicile.

poration by the Supreme Court of Illinois, although they had become members before the change. Steen v. Modern Woodmen of America, 296 Ill. 104, 129 N. E. 546, 17 A. L. R. 406. The Supreme Court of Nebraska affirmed a judgment for the plaintiff, seemingly, from the cases cited, on the ground either that the rule of evidence must be determined by the lex fori, or, more probably, that the by-law was unreasonable. Mixer v. Modern Woodmen of America, 197 N. W. 129. The result is that if the validity of the by-law ought to be determined by the laws of Illinois, the plaintiff is allowed to recover upon a state of facts which the contract expressly

*551

stipulates shall not give her that right. A writ of certiorari was issued by this Court. 265 U. S. 576, 44 S. Ct. 455, 68 L. Ed. 1187. The indivisible unity between the members 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.

Suit by Jennie Vida Mixer against the Modern Woodmen of America. On certiorari to Supreme Court of Nebraska to review judgment for plaintiff (197 N. W. 129). Judgment reversed.

enforced and the consequence that their rights must be determined by a single law, is elaborated in Supreme Council of the Royal Arcanum v Green, 237 U. S. 531, 542, 35 S. Ct. 724, 59 L. Ed. 1089, L. R. A. 1916A, 771. The act of becoming a member is something more

Mr. Nelson C. Pratt, of Omaha, Neb., for than a contract, it is entering into a complex petitioner.

*548

*Messrs. J. J. McCarthy, of Ponca, Neb., and Geo. W. Leamer, of South Sioux City, Neb., for respondent.

and abiding relation, and as marriage looks to domicil, membership looks to and must be governed by the law of the State granting the incorporation. We need not consider 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.

$550

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

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

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Due Process of Law.]

5. Constitutional law

273-Contempt

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 law. Green v Royal Arcanum, 206 N. Y. 591, 597, 100 N. E. 411. But the decision was reversed and it was held a failure to give full faith and credit to the Massachusetts charter as construed by the Massachusetts Court that Green was relieved by decree from paying assessments increased by the corporation after his contract was made. We are of opinion that the decision in that case governs this, and that the judgment must be reversed. Judgment reversed.

(267 U. S. 517)

COOKE v. UNITED STATES.

53-Action of court in contempt proceedings, based on offense not committed in open court, held denial of due process of law.

Action of court in causing attorney's arrest by order of attachment and in adjudging him in contempt because of letter written by attorney to judge, without according attorney 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 requiring him to show cause, if any, why he should not be punished therefor, since the con

(Argued March 20, 1925. Decided April 13, tempt was not committed in open court, and

1925.) No. 311.

the proper procedure in such case is to issue rule to show cause informing accused of nature of contempt charged, and according him time to secure and consult counsel and to prepare his

1. Contempt 6-Attorney's letter to judge defense and call witnesses. held contemptuous.

Attorney's letter to judge, following return of unfavorable verdict for client, would not have been improper, if letter had merely advised judge of client's desire for trial of other cases yet to be heard before other judge, and of attorney's own desire to avoid necessity of filing affidavit of bias, under Judicial Code, § 21 (Comp. St. § 988), by inducing regular judge voluntarily to withdraw, but was contemptuous, in that it was written and delivered pending further necessary proceedings in case in which attorney's anger had been aroused, and characterized in severe language, personally derogatory to the judge, his conduct of pending case. 2. Contempt 52-Court may impose punishment for offense committed in open court without hearing evidence or according offender assistance of counsel.

Court must act instantly to suppress disturbance or violence, or physical obstruction, or disrespect to court, occurring in open court, and may impose punishment without hearing evidence or according offender assistance of counsel.

3. Constitutional law 273-Punishment of offender for contempt occurring in open court held due process of law.

Court, in imposing punishment for disturbance, physical obstruction, or disrespect to court occurring in open court, without hearing evidence and according offender assistance of counsel, acts with due process of law.

6. Contempt 60(2)—Evidence held admissible in mitigation of punishment to be imposed.

In contempt proceedings against attorney, based on attorney's letter to court, attorney's evidence that he had trusted to the advice of his partner in sending letter, and had not read letter carefully, should have been considered by court in mitigation of the punishment to be imposed.

7. Judges

15(1)-Judge on whom personal attack has been made may properly invite other judge to preside at hearing.

Where alleged contempt constitutes a personal attack on the judge, the judge may properly ask another judge to sit in contempt proceeding, if conditions do not make it impracticable, or delay may not injure public or private right.

Certiorari to the United States Circuit Court of Appeals for the Fifth Circuit.

Clay Cooke was adjudged in contempt, and to review a judgment of the Circuit Court of Appeals (295 F. 292), affirming the judgment, he brings certiorari. Reversed and remanded, with directions.

#518

*Clay Cooke and J. L. Walker were each sentenced to 30 days' imprisonment for con

*519

tempt by the United States District Court for the Northern District of Texas. The case

4. Constitutional law 273-"Due process of was taken on error to the Circuit Court of law" in contempt proceeding defined.

Appeals for the Fifth Circuit, which affirmed the sentence of Cooke and reversed that of Walker. By certiorari, Cooke's sentence was brought here.

Where contempt was not committed in open court, "due process of law" requires that the accused should be advised of the charges, 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 out 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-dict against Walker of $56,000. The next

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

(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 *521 Walker, by direction of Cooke, delivered to may be avoided. the District Judge in his chambers, adjoining the courtroom, and within a few feet of it, a letter marked "Personal," as follows:

"Fort Worth, Texas, February 15, 1923. "Hon. James C. Wilson, Judge U. S. District Court, Fort Worth, Texas-Dear Sir: In re No. 985, W. W. Wilkinson, Trustee, v. J. L. Walker; in re No. 986, W. W. Wilkinson, Trustee, v. Mass. Bonding Company et al.; in re 266, Equity, W. W. Wilkinson, Trustee, v. J. L. Walker; in re 69, Equity, Southwestern Telegraph & Telephone Co. v. J. L. Walker; in re No. 1001, in Bankruptcy, Walker Grain Company.

"Referring to the above matters pending in the District Court of the United States for the Northern District of Texas, at Fort Worth, I beg personally, as a lawyer interested in the cause of justice and fairness in the trial of all litigated matters, and as a friend of the judge of this court, to suggest that the only order that I will consent to your honor's entering in any of the above-mentioned matters now pending in your honor's court is an order certifying your honor's disqualification on the ground of prejudice and bias to try said matters.

"With very great respect, I beg to remain,
"Yours most truly,
Clay Cooke."

Eleven days after this, on the 26th of Feb|ruary, the court directed an order to be entered with a recital of facts concluding as follows:

"Therefore, since the matters of fact set forth herein are within the personal knowledge of the judge of this court, and since it is the view of this court that said letter as a whole is an attack upon the honor and integrity of the court, wherein it charges that the judge of this court is not big enough and broad enough to truly pass upon matters pending therein, and wherein it charges in effect that the judge of this court has allowed himself to be improperly approached and influenced and whispered to by interested parties against a litigant in the court, and since it is the view of this court that such an act by a litigant and his attorney constitutes misbehavior, and a contempt under the law, and that the threats and impertinence and insult in said letter were deliberately and designedly offered, with intent to intimidate and improperly influence the court 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.

*520

"I do not like to take the steps necessary to enforce the foregoing disqualification, which to my mind, as a lawyer and an honest man, is apparent.

"Therefore, in the interest of friendship and in the interest of fairness, I suggest that the only honorable thing for your honor to do in the above-styled matters is to note your honor's disqualification, or, your honor's qualification having been questioned, to exchange places and permit some judge in whom the defendant and counsel feel more confidence to try these particular matters.

"Prior to the trial of cause No. 984, which, as just concluded, I had believed that your honor was big enough and broad enough to overcome the personal prejudice against the defendant Walker, which I knew to exist, but I find that in this fond hope I was mistaken, also my client desired the privilege of laying the whole facts before your honor in an endeavor to overcome the effect of the slanders that have been filed in your honor's court against him personally, and which have been whispered in your honor's ears against him, and in proof of which not one scintilla of evidence exists in any record ever made in your honor's court.

"My hopes in this respect having been rudely shattered, I am now appealing purely to your honor's dignity as a judge and sense of fairness as a man to do as in this letter requested, and

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The marshal arrested the defendants and brought them to court. The following statement shows in substance what then occurred:

"Judge Wilson: At this time I will call the contempt matter against Clay Cooke and J. L. Walker, attachment having been issued for these respondents.

*522

*I have requested Judge J. M. McCormick,

of Dallas, to be present and act as a friend of the court in this proceeding, and have also requested the district attorney, it being in its nature a criminal matter, to act."

Mr. Clay Cooke said that he had not known of the attachment until that morning, that he would like time to prepare for trial and get witnesses for their defense, that there might be extenuating circumstances which would appeal to the court's sense of fairness and justice in fixing whatever penalty might be imposed and that he had attempted to secure counsel, but through illness or absence of those he sought he had failed up to that time.

Judge Wilson intimated that he would not postpone the matter, and said:

"There is just this question involved, and, as stated by counsel representing the court, these facts are within the personal knowledge of this court. Did you deliver this letter to the judge of this court?

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