provisions of this section shall apply to sales and proceedings now pending in the courts of the United States as well as those commenced hereafter. The provisions of this section shall not apply to sales and proceedings under the Bankruptcy Act.

"SEC. 2. All personal property sold under any order or decree of any court of the United States shall be sold as provided in section 1 of this Act, unless in the opinion of the court rendering such order or decree, it would be best to sell it in some other manner. The provisions of this section shall apply to sales and proceedings now pending in the courts of the United States as well as those commenced hereafter. The provisions of this section shall not apply to sales and proceedings under the Bankruptcy Act.

SEC. 3. No sale of real estate ordered pursuant to the provisions of this Act by any order, judgment, or decree of an United States court, other than a private sale, shall be had without previous publication of notices of such proposed sale being ordered and had once a week for at least four weeks prior to such sale in at least one newspaper printed, regularly issued, and having a general circulation in the county, State, judicial district of the United States, or judicial circuit of the United States where the real estate proposed to be sold is situated, if such there be. If said property shall be situated in more than one county, State, judicial district of the United States, or judicial circuit of the United States, such notice shall be published in one or more of the counties, States, judicial districts of the United States, or judicial circuits of the United States where said property is situated, as the court may direct. Said notice shall be substantially in such form and contain such description of the property by reference or otherwise as the court ordering the sale shall approve. The court may, in its discretion, direct that the publication of the notice of sale herein provided for be made in such other newspapers as may seem proper. The provisions of this section shall apply to sales and proceedings now pending in the courts of the United States as well as those commenced hereafter in said courts. The provisions of this section shall not apply to sales and proceedings under the Bankruptcy Act."

There is also incorporated herein a letter from Mr. Atlee Pomerene, special assistant to the Attorney General, as follows:

Hon. WILLIAM H. KING,

Senate Office Building, Washington, D. C.

DEPARTMENT OF JUSTICE,
Cleveland, Ohio, April 1, 1935.

MY DEAR SENATOR: While in Washington on Saturday I tried to see you twice, but at one time you were in a session of committee and at another you were not in your office.

As one of the Government counsel in the Pan American Petroleum Co. oil case, we are especially interested in the enactment of S. 1572, a bill to amend an act entitled "An act to regulate the manner in which property shall be sold under orders and decrees of any United States courts", approved March 3, 1893, as amended. You are perhaps advised that the properties of the Pan American Petroleum Co. and the Richfield Oil Co. are in the hands of receivers. Through no fault of our own there has been a delay in the sale and marshalling of the liens in these receivership estates. The title and trust company, which will pass upon these properties in the event they are sold, have indicated they could not pass the title unless the pending bill was enacted.

A telegram received this morning from one of the attorneys representing the mortgage trustees in the Pan American Petroleum Co. advises that on Saturday Judge James emphatically stated there must be an early sale of the properties whether the committees and others get together or not.

We fear that any delay in the passing of this bill will cause further delay in the transfer of the property and the approval of the title.

Under the circumstances may I not ask the good offices of yourself and your committee in having this bill pressed for early passage? I understand there is no opposition to the bill. Your early reply will greatly oblige. I am writing similarly to Senator Ashurst, who presented the bill.

Very sincerely,

ATLEE POMERENE,

Special Assistant to The Attorney General.

О

APRIL 15 (calendar day, APRIL 16), 1935.-Referred to the Senate Calendar and ordered to be printed

Mr. MCCARRAN, from the Committee on the Judiciary, submitted the following

REPORT

[To accompany S. 2416]

The Committee on the Judiciary, to whom was referred the bill (S. 2416) to amend an act entitled "An act to establish a uniform system of bankruptcy throughout the United States, approved July 1, 1898, and acts amendatory thereof and supplementary thereto", reported the same with two amendments and recommended that the bill as amended do pass.

The committee made the following amendments in S. 2416:
After line 14, page 6, add a new section 6, to read as follows:

SEC. 6. That section 75 of said Act, as amended, be further amended, by amending subsection (p) to read as follows:

"The prohibitions of subsection (o) shall apply to all judicial or official proceedings in any court or under the direction of any official, and shall apply to all creditors, public or private, and to all of the debtor's property, wherever located. All such property shall be under the sole jurisdiction and control of the court in bankruptcy, and subject to the payment of the debtor farmer's creditors, as provided in this Act.”

On line 15, page 6, change section 6 to section 7.

On line 13, page 7, after the word "encumbrance", add the words "whichever may be lower".

This bill amends section 75 of the Bankruptcy Act, and more especially amends subsections (n), (o), and (p), and paragraph 3 of subsection (s) of section 75. It has for its object and purpose the clarification of section 75, so that the decisions and the interpretation and construction that the United States district courts have, and may hereafter make, may become and be uniform. The amendments provided for in this bill have become necessary because of the great confusion caused by the diverse rulings of the various United States district courts, in the construction of section 75.

Some courts have held that the farm debtor could not take advantage of the act after foreclosure sale and during the period of redemp

tion. Some of these courts have refused to permit the farmer in that position to file his petition, although under the law of the State he was in possession and full control of the property and could redeem it within the period allowed. Other courts have held that the farmer could not take advantage of the act during the period of a moratorium established by the State; while others have held that the debtor could not take advantage of the act after sale, but prior to confirmation of sale, although in all of these cases, if the debtor had the money and were in a position to pay, he could redeem and save his property. Obviously, these courts are reasoning too technically, and have failed to carry out the intention of Congress, which was to protect the farmer's property and home.

Again, other courts have held when the farmer's homestead and other exemptions were set aside, that that ended their jurisdiction under section 75, and the farm debtor was left to the mercy of his mortgagees and lien holders, and the protection of that section withdrawn. In reading section 75, including subsection (s), it is plain that Congress had no such intention. Its object was to protect the farmer in his home and property, and not to desert him and leave him to the mercy of his creditors. Other courts have held that if any of the creditors refuse to consent to sell back the property under the terms and provisions of paragraph 3 of subsection (s) of section 75 of the Bankruptcy Act, that that ended it all, and he had no remedy. Such courts apparently construe only one paragraph of subsection (s), and brush all the rest aside; while others, construing paragraph 3 in conjunction with paragraph 7, and with the whole act, have held that if all the creditors do not consent, they must object in writing, and that then the procedure will be under paragraph 7 of subsection (s). When Congress passed section 75 and amendments, it certainly intended that the act should be construed as a whole, and not merely one paragraph.

It was undoubtedly the intention of Congress that the farmer should pay a fee of $10, and no more. In fact, the act says so. Yet many of the courts have held that when the farmer amended his petition of conciliation to a petition of bankruptcy, he had to pay the usual fees in a bankruptcy proceeding. Some courts again hold that the conciliation commissioner is through with the case when a petition for conciliation is amended to a petition of bankruptcy. Others have held the reverse. In reading the whole act, it is quite apparent that Congress intended the conciliation commissioner to act as referee, because it imposed the same qualifications upon him. The proceedings having been started before the conciliation commissioner, he is on the ground, a resident of the county, and knows the conditions, and is in a far better position to continue in charge of the case than the referee, who in some States is several hundred miles away. Congress intended to place this act within the hands and possibilities of the debtor farmer, and keep down the expense.

Other courts have entered whole-heartedly into the spirit of the act, and construed it liberally, carrying out the intention of Congress These have held that the farmer can take advantage of the act during the period of redemption, that the conciliation commissioner was to continue to act, and that the farmer could take advantage of the act any time before he was completely divested of title and possession. These courts have interpreted the act as a whole in connection with

the times, and the purposes for which it was passed-the protection of agriculture.

75.

The amended subsection (n), as set forth in S. 2416, in fact construes, interprets, and clarifies subsections (n), (o), and (p) of section By reading subsections (n), (o), and (p) as now enacted, it becomes clear that it was the intention of Congress, when it passed section 75, that the debtor farmer and all of his property should come under the jurisdiction of the court of bankruptcy, and that the benefits of the act should extend to the farmer prior to confirmation of sale, and during the period of redemption; and that no proceedings after the filing of the petition should be instituted, or, if instituted prior to the filing of the petition, should not be maintained in any court, or otherwise. Yet there have been a multiplicity of different holdings and conclusions reached by different courts on this subject. The amended subsection (n) as proposed in S. 2416 clarifies, construes, and interprets the intent of Congress, so as to bring about uniform decisions and rulings by the courts in the future.

The amended paragraph 3 of subsection (s), as set forth in S. 2416, has for its purpose and object the clarification of that paragraph, and brings paragraph 3 of subsection (s) in harmony with paragraph 7 of subsection (s). It is plain, by reading paragraphs 3 and 7 together, and in connection with all of section 75 and of subsection (s), that it was the intention of Congress that the farm debtor should be able to protect and save his home and exemptions. It was not the intention of Congress for the courts merely to set aside the exemptions, and then say to the creditors: "Now, go and take it."

It is also clear that Congress intended that if the creditors would not consent to the property being sold back to the farm debtor, that they should file objections, and then they would come under paragraph 7. Otherwise, subsection (s) would be meaningless. And yet there has been a great diversity of decisions on that point. Some courts hold that if the creditors did not consent, that that ended the proceeding under subsection (s); others holding that consent would be taken for granted, unless they filed written objections; while other courts have held that when the exemptions were set aside, including the homestead, that the court was through, and the creditors could bring foreclosure proceedings. Such, we are satisfied, was not the intention of Congress when it passed the act. In fact, section 75, and especially subsection (s), when read as a whole, clearly shows that the purpose of Congress in passing this legislation was to protect the farmer's property and his home, and at the same time protect the creditors by giving them the fair value of the property, under the terms and provisions of the act.

Under the original paragraph 3, there also has been some confusion in regard to what was meant by "all taxes shall be paid by the debtor." The amended paragraph 3 has added the word "future", printed bill, page 5, line 12. There should have been no confusion on this point, because the past due taxes were already included as debts of the debtor, and the intention of Congress clearly was to provide that all future taxes should be paid by the debtor. Some courts also seem confused as to whether section 75 should be construed by itself, or in connection with all of the Bankruptcy Act, and how court costs. and administration charges should be paid. Of course, section 75 is just a part of the Bankruptcy Act, and should be construed in con

nection with the whole act, except insofar as it repeals or modifies that act, and these costs always have been and should be paid out of the bankrupt's estate. Therefore this matter has been clarified by adding the following language in the amended paragraph 3, page 5, lines 14 and 15. "After all court costs and administration charges have been paid", and so forth.

Section 3 of S. 2416 clarifies section 75 further, by providing that the conciliation commissioner shall continue to act as referee when the farmer amends his petition from a petition of conciliation to a petition of bankruptcy, and allows such conciliation commissioner an additional fee for such services not to exceed $25, as allowed by the court. It also provides that all additional fees or costs of administration shall be charged to the bankrupt's estate, and provides that the reasonable rental to be charged the farmer debtor under paragraph 7 of subsection (s) shall not exceed 5 percent of the appraised value of the property, or amount of the encumbrances. In other words, if the debt is equal to the appraised value of the property, then the rental must not exceed 5 percent of the appraised value, but if the encumbrance is less than the appraised value, then the rental must not exceed 5 percent of the encumbrances.

It provides further that if a receiver is in charge of the property, the receiver shall be divested of possession, and the property turned over to the farmer under the provisions of section 75, as amended. It also provides that section 75 shall apply to partnerships; common, entirety, joint or community ownership, and that any such parties may join in one petition. It further provides that the term "farmer", as defined in subsection (r) of section 75, shall include any person who is engaged in the production of poultry or poultry products, livestock, and dairy products, as well as products of the soil.

The amendments proposed in section 3 of S. 2416 are simply to clarify the present section 75 with amendments, and to bring about a uniform procedure in all courts. On nearly every amendment of amended paragraph 3 of subsection (s), there has been a diversity of rulings and decisions by United States District Courts. Some have held that if a husband and wife were jointly interested, or had interests in common, or were partners in the farming operations, that then neither of them could take advantage of the act, nor could they join. Obviously such was not the intention of Congress.

Others have held that the conciliation commissioner was through when the petition of conciliation was amended to a petition of bankruptcy. Again, some have held that the farmer would have to pay the regular bankruptcy filing fees and referee's fees when he amended. In some cases, the rentals were fixed so high as to actually deafeat the purposes of the act, while the amendment under section 3 of S. 2416 fixes the maximum limit at 5 percent of the appraised value of the property, or encumbrances. Finally, some courts have given a very technical construction and meaning to the word "farmer", holding that a farmer was one who actually tilled and cultivated the soil, and excluded poultry and livestock farmers from the act.

Of course, this is new legislation, but the intention of Congress was that it was to be liberally construed, to afford the protection given in the act to the farmer debtor during this depression.