laws, there are certain persons, such as those furnishing material or labor, that, in certain specified ways, are given preference in the distribution of insolvent estates. It is a statutory lien of that kind with which the court dealt in Re Bennett.

conveyances under the law of the state, under § 67f the right to the lien of preference arising from the suit might, by authority of the court, be preserved for the benefit of the bankrupt estate. In that case it was further held that the proceeding and judgment in the state court did not prejudice the right Nor are we able to discover anything exof the bankruptcy court to determine among cluding the right of the bankruptcy court to what creditors the property should be dis- itself distribute the property in the protributed, and that such questions were ex- ceedings had in the Kentucky courts where clusively cognizable in the bankruptcy court. the trustee intervened on the order of the See also Rock Island Plow Co. v. Reardon, judge. In his petition filed in the McCrack| 222 U. S. 354, 56 L. ed. 231, 32 Sup. Ct. Rep. en circuit court, Martin, the trustee, alleged that the conveyances made by Atkins were fraudulent and should be set aside and the property adjudged to belong to the trustee of the bankrupt for the benefit of his credit

164.

been made under § 67f in the bankruptcy court. In that case, the McCracken circuit court held that the conveyances were not actually fraudulent, but were constructively so as to antecedent creditors. The property was ordered to be sold and the trustee in bankruptcy appointed special commissioner, and directed to hold the proceeds of the sale, subject to the order of final distribution of the bankruptcy court, as appears in that part of the judgment which we have already quoted. From that judgment the trustee and the grantees under the deed appealed. Upon the trustee's appeal the court, in its opinion (Ky. —, 124 S. W. 879), held that the trustee had not been prejudiced by the failure of the court below to allow the action to be prosecuted in his name, nor had the judgment prejudiced his substantial right as trustee for the benefit of all the creditors. The court cited § 70 of the bankruptcy act, recognizing the right of the trustee, vested with the title of the bankrupt, to bring proceedings in the bankruptcy court or the state court for its recovery, and his right to be substituted by the court as plaintiff in any suits brought by creditors for the purpose of recovering property fraudulently conveyed by the bankrupt, and in its opinion the court said (p. 8S1):

It is contended, however, by the appellants, that if we assume that under § 67f of the bankruptcy act, the property or its proceeds must come to the trustee, to be dis-ors. He also set up the order which had tributed by him under the orders of the bankruptcy court for the benefit of the estate, that inasmuch as, under the statute of Kentucky, creditors existing prior to the making of the deed in question were entitled to be preferred in the distribution of the proceeds, that right is protected by subsection 5 of § 64b of the bankruptcy act, which provides that the debts to have priority, except as therein provided, and to be paid in full out of bankrupt estates, are, among others, "debts owing to any person who, by the laws of the states or the United States, is entitled to priority;" and it is contended that this subsection, as considered by the circuit court of appeals of the sixth circuit in an opinion written by the late Justice Lurton, Re Bennett, 82 C. C. A. 531, 153 Fed. 673, maintains that position. But an examination of that case shows that it dealt with a statutory lien created under § 2487 of the Kentucky statutes, giving preferences to persons furnish ing materials or supplies to manufacturing companies, and creating a lien upon the property in cases of such companies in case of an assignment for the benefit of creditors, or where the property is distributed among creditors by operation of law or by act of the company. It was held that such statutory lien gave a substantial right in or inchoate lien upon the property from the date of furnishing the material, within the spirit and meaning of § 61b, subsection 5, of the bankruptcy act. That case, and such cases as Re Laird, 48 C. C. A. 538, 109 Fed. 550, which dealt with labor claims, recognize the purpose of Congress in passing § 64b, to maintain statutory liens and preferences in such cases in the distribution of the bankrupt estate.

"It is true the trustee asked that the conveyance be declared fraudulent as to all creditors, both subsequent and antecedent, while the court only adjudged that the conveyance was fraudulent as to antecedent creditors, but we do not understand that the trustee in bankruptcy is complaining of the judgment in so far as it refused to adjudge the conveyance actually fraudulent. The judgment does not undertake to dispose of We are unable to see that the case has the proceeds that may be realized from the any bearing upon the construction of § 67f sale of the property, but leaves this quesand the cases now under consideration. tion open for future determination, and we Under our system of bankruptcy, and in the do not doubt that, when the court comes to administration of assignments under state' make an order concerning the disposition

of the proceeds in the hands of the trustee as special commissioner, it will direct that the proceeds be paid over to the trustee in bankruptcy, to be administered as a part of the estate of the bankrupt in the bankruptcy court. In anticipation of what we assume the court will do, we may with propriety in this opinion direct that it make such orders. If the court in the judgment had undertaken to divest the trustee of the control of this fund, we would upon this point reverse the judgment, with directions to proceed as indicated; but, as the court did not make such an order, we are of the opinion that, on the appeal of the trustee, the judgment of the lower court should be affirmed."

Therefore it appears that the judgment of the lower court, directing the proceeds to be disposed of in the bankruptcy proceedings, was distinctly affirmed, and the court declared that a contrary holding would have been reversed.

After dealing with the questions brought up by the grantees in the deed, it was held that the court below was wrong in fixing the date of the delivery and acceptance of the deed as of April 20th, 1907, instead of December 4th, 1906, and the court said (page 882):

"To what extent this will affect the judgment creditors we are not advised; but only those creditors whose debts were created previous to December 4, 1906, are entitled to participate in the proceeds realized from the sale of the property. If the proceeds amount to more than sufficient to pay such debts, the surplus should be paid to the grantees in the deed."

that the lien be preserved for the benefit of creditors, it became good under the provisions of the bankruptcy act for the benefit of all the creditors of the estate. Under this order the bankruptcy court had acquired jurisdiction,-the state court had no possession of the property except such as the attachment gave, and after the conveyance was set aside in the state court, for which purpose the state court is given concurrent jurisdiction by § 70 of the bankruptcy act, it had the right to determine for itself the disposition of the fund arising from the property sold. Miller v. New Orleans Acid & Fertilizer Co. 211 U. S. 496, 53 L. ed. 300, 29 Sup. Ct. Rep. 176.

We find no error in the decree of the Circuit Court of Appeals, directing the distribution of the proceeds of the sale for the benefit of all the creditors of the estate. The decree is accordingly affirmed.

Mr. Justice Pitney and Mr. Justice McReynolds dissenting.

(236 U. S. 273)

JAY FOX, Plff. in Err.,

V.

STATE OF WASHINGTON. CONSTITUTIONAL LAW ($ 255*)-DUE PROCESS OF LAW-LIBERTY-INDEFINITENESS OF CRIMINAL STATUTE.

A statute which, like Rem. & Bal. (Wash.) Code, § 2564, makes criminal the editing of printed matter tending to encannot be said to violate U. S. Const., 14th courage and advocate disrespect for law, Amend., as being an unjustifiable restriction of liberty, and too indefinite for a criminal statute, where the highest state court, by implication at least, reads the statute as confined to encouraging an actual breach of the law, and in the case at bar has merely construed it as embracing an article encouraging and inciting a persistence in what would be a breach of the state laws against indecent exposure.

[Ed. Note.-For other cases, see Constitutional

255.*]

Law, Cent. Dig. §§ 736-738, 740-745; Dec. Dig. § [No. 134.]

But we do not think in this part of the opinion the court of appeals of Kentucky intended in anywise to depart from its affirmation of the judgment of the circuit court upon the trustee's appeal and its explicit recognition of the authority of the bankruptcy court to control the disposition of the proceeds of the sale. The court did not consider § 67f in its opinion, nor did it give, as it had no authority so to do, any specific direction as to the distribution of the fund in the bankruptcy court. The Submitted January 19, 1915. Decided FebMcCracken circuit court, after the mandate came down, repeated its order as to the distribution in the bankruptcy court by reference to its former judgment, and the trustee applied for an order in that court, which was made and subsequently appealed from in the present case.

Under the bankruptcy act, when the conveyance was set aside, the lien or attachment being within four months of the bankruptcy proceeding, the bankrupt being then insolvent, of which fact no question is made, and the bankruptcy court having ordered

I

ruary 23, 1915.

N ERROR to the Supreme Court of the State of Washington to review a judgment which affirmed a conviction in the Superior Court of Pierce County, in that state, of editing printed matter tending to encourage and advocate disrespect for law. Affirmed.

See same case below, 71 Wash. 185, 127
Pac. 1111.

The facts are stated in the opinion.
Mr. Gilbert E. Roe for plaintiff in error.

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

Mr. W. V. Tanner, Attorney General of | let go without resistance the progress of the Washington, and Mr. Fred G. Remann, for prudes would be easy." It then predicts and defendant in error. encourages the boycott of those who thus interfere with the freedom of Home, concluding: "The boycott will be pushed until these invaders will come to see the brutal mistake of their action and so inform the people." Thus by indirection, but

Mr. Justice Holmes delivered the opinion of the court:

un

cites a persistence in what we must assume would be a breach of the state laws against indecent exposure; and the jury so found.

This is an information for editing printed matter tending to encourage and advocate disrespect for law, contrary to a stat-mistakably, the article encourages and inute of Washington. The statute is as follows: "Every person who shall wilfully print, publish, edit, issue, or knowingly circulate, sell, distribute or display any book, paper, document, or written or printed matter, in any form, alvocating, en couraging or inciting, or having a tendency to encourage or incite the commission of any crime, breach of the peace, or act of violence, or which shall tend to encourage or advocate disrespect for law or for any court or courts of justice, shall be guilty of a gross misdemeanor;" Rem. & Bal. Code, § 2564. The defendant demurred on the ground that the act was unconstitutional. The demurrer was overruled and the defendant was tried and convicted. 71 Wash. 185, 127 Pac. 1111. With regard to the juris.liction of this court, it should be observed that the supreme court of the state, while affirming that the Constitution of the United States guarantees freedom of speech, held not only that the act was valid in that respect, but also that it was not bad for uncertainty, citing Waters-Pierce Oil Co. v. Texas, 212 U. S. 86, 53 L. ed. 417, 29 Sup. Ct. Rep. 220, so that we gather that the Constitution of the United States, and especially the 14th Amendment, was relied upon, apart from the certificate of the chief justice to that effect.

The printed matter in question is an article entitled, "The Nude and the Prudes," reciting in its earlier part that "Home is a community of free spirits, who came out into the woods to escape the polluted atmosphere of priest-ridden, conventional society;" that "one of the liberties enjoyed by the Homeites was the privilege to bathe in evening dress, or with merely the clothes nature gave them, just as they chose;" but that "eventually a few prudes got into the community and proceeded in the brutal, unneighborly way of the outside world to suppress the people's freedom," and that they had four persons arrested on the charge of indecent exposure, followed in two cases, it seems, by sentences to imprisonment. “And the perpetrators of this vile action wonder why they are being boycotted." It goes on: "The well-merited indignation of the people has been aroused. Their liberty has been attacked. The first step in the way of subjecting the community to all the persecution of the outside has been taken. If this was

So far as statutes fairly may be construed in such a way as to avoid doubtful constitutional questions they should be so construed (United States ex rel. Atty. Gen. v. Delaware & H. Co. 213 U. S. 366, 407, 408, 53 L. ed. 836, 848, 849, 29 Sup. Ct. Rep. 527); and it is to be presumed that state laws will be construed in that way by the state courts. We understand the state court by implication, at least, to have read the statute as confined to encouraging an actual breach of law. Therefore the argument that this act is both an unjustifiable restriction of liberty and too vague for a criminal law must fail. It does not appear and is not likely that the statute will be construed to prevent publications merely because they tend to produce unfavorable opinions of a particular statute or of law in general. In this present case the disrespect for law that was encouraged was disregard of it,-an overt breach and technically criminal act. It would be in accord with the usages of English to interpret disrespect as manifested disrespect, as active disregard going be yond the line drawn by the law. That is all that has happened as yet, and we see no reason to believe that the statute will be stretched beyond that point.

If the statute should be construed as going no farther than it is necessary to go in order to bring the defendant within it, there is no trouble with it for want of definiteness. See Nash v. United States, 229 U. S. 373, 57 L. ed. 1232, 33 Sup. Ct. Rep. 780; International Harvester Co. v. Kentucky, 234 U. S. 216, 58 L. ed. 1284, 34 Sup. Ct. Rep. 853. It lays hold of encouragements that, apart from statute, if directed to a particular person's conduct, generally would make him who uttered them guilty of a misdemeanor if not an accomplice or a principal in the crime encouraged, and deals with the publication of them to a wider and less selected audience. Laws of this description are not unfamiliar. Of course we have nothing to do with the wisdom of the defendant, the prosecution, or the act. All that concerns us is that it cannot be said to infringe the Constitution of the United States.

Judgment affirmed.

(236 U. S. 223)

A. A. TRUSKETT and W. O. Truskett, | firmed by the circuit court of appeals, 117 C. C. A. 477, 198 Fed. 835.

Appts.,

V.

FRED D. CLOSSER.
INDIANS (16*)-ALLOTMENTS-LEASE BY
MINOR.

The lands in controversy were part of the common domain of the Cherokee Tribe of Indians, and on the 31st day of March, 1909, were conveyed to Goodman, a member of the tribe, by patent of the Cherokee Nation, duly approved by the Secretary of the Interior as his, Goodman's, allotment, 50 acres being his so-called "surplus" allotment, and the remaining 30 acres being his homestead allotment.

The conferring of the rights of majority, conformably to a state statute, upon a minor Indian allottee so as to qualify him to make a lease, must be deemed to be beyond the power of an Oklahoma district court, notwithstanding the removal of restrictions on alienation by Indian allottees, made by the act of May 27, 1908 (35 Stat. Goodman was one-eighth Indian blood and at L. 312, chap. 199), §§ 1 and 4, in view seven-eighths white blood, and did not atof the provisions of §§ 2 and 6 of that act defining "minors," and specifically provid-tain the full age of twenty-one years until Before that date, to ing for the leasing of their allotments by September 25, 1910. their guardians under the order of the state probate courts, which are given, subject to the provisions of that act, jurisdiction of the persons and property of minor allottees, "except as otherwise specifically provided by law," especially since a contrary view would conflict with the rulings of the highest state court, which have become a rule of property.

wit, on the 12th of October, 1909, in a proceeding brought by his next friend, the district court of Washington county, Oklahoma, by a decree duly entered, removed from Goodman the disability of minority, and conferred upon him the rights of majority concerning contracts, and "authorized and empowered him to transact business in

[Ed. Note.-For other cases, see Indians, Cent. general with the same effect as if such busiDig. 45; Dec. Dig. § 16.*]

[No. 160.]

Argued January 28, 1915.

A

ness were transacted by a person over the age of twenty-one years." In pursuance of this decree Goodman granted to one OverDecided Feb- field a lease for oil and gas mining purposes covering his entire allotment for the term of fifteen years from its date, and as long thereafter as oil or gas should be found in paying quantities. The lease passed to appellants by assignment, and constitutes the basis of their title.

ruary 23, 1915. PPEAL from the United States Circuit Court of Appeals for the Eighth Circuit to review a decree which affirmed a decree of the District Court for the Eastern District of Oklahoma, quieting title under a lease by the guardian of a minor Indian allottee.

Affirmed.

On September 14, 1910, that is, subsequent to the decree conferring majority rights upon Goodman, and subsequent to

See same case below, 117 C. C. A. 477, the lease under which appellants hold, the 198 Fed. 835.

The facts are stated in the opinion.

legal guardian of Goodman granted a lease in behalf of Goodman to appellee, covering

Messrs. James A. Veasey and Lloyd A. the same lands. This lease was both authRowland for appellants.

Messrs. G. T. Stanford, Eugene Mackey, T. H. Stanford, and John H. Brennan for appellee.

orized and confirmed by the order of the county court for Nowata county, Oklahoma, that court then having probate jurisdiction of the person and estate of Goodman, and Goodman at that time being a minor. This

Mr. Justice McKenna delivered the opin- lease is the ground of title of appellee. ion of the court:

Conflict of oil and gas mining leases derived from the same lessor, one Robert F. Goodman, a member of the Cherokee Tribe of Indians.

The question in the case then is, Of the two leases, which constitutes the better title? And a decision of this question, appellants contend, depends upon the construction of the act of Congress of May 27, Appellee brought suit in the district 1908, 35 Stat. at L. 312, chap. 199. Special court for the eastern district of Oklahoma stress being put upon §§ 1 and 4. These to quiet title to his lease against that of ap- sections are as follows: Section 1. "That pellants covering the same premises. The from and after sixty days from the date of bill set up the full title of appellee and the this act, the status of the lands allotted full title of appellants, to which appellants heretofore or hereafter to allottees of the demurred. The demurrer was overruled, Five Civilized Tribes shall, as regards reand, appellants declining to plead further, strictions on alienation or encumbrance, be a decree was entered quieting the title of as follows: All lands, including homeappellee, and decreeing the cancelation of steads, of said allottees enrolled as interthe lease of appellants. The decree was af-'married whites, as freedmen, and as mixed

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 35 S. C.-25.

"Section 6. That the persons and property of minor allottees of the Five Civilized Tribes shall, except as otherwise specifically provided by law, be subject to the jurisdiction of the probate courts of the state of Oklahoma..

blood Indians having less than half Indian | 'minor' or 'minors' as used in this act shall blood, including minors, shall be free from include all males under the age of twentyall restriction. All lands, except home-one years and all females under the age of steads, of said allottees enrolled as mixed- eighteen years." blood Indians having half or more than half and less than three-quarters Indian blood, shall be free from all restrictions. All homesteads of said allottees enrolled as mixed-blood Indians having half or more than half Indian blood, including minors of such degrees of blood, and all allotted lands of enrolled full-bloods, and enrolled mixed bloods of three-quarters or more Indian blood, including minors of such degrees of blood, shall not be subject to alienation, contract to sell, power of attorney, or any other encumbrance prior to April 26, 1931, except that the Secretary of the Interior may remove such restrictions wholly or in part under such rules and regulations concerning terms of sale and disposal of the proceeds for the benefit of the respective Indians as he may prescribe."

"Section 4. That all lands from which restrictions have been or shall be removed shall be subject to taxation and 11 other civil burdens as though it were the property of other persons than allottees of the Five Civilized Tribes: Provided, That allotted lands shall not be subjected or held liable to any form of personal claim, or demand, against the allottees arising or existing prior to the removal of restrictions, other than contracts heretofore expressly permitted by law."

These sections are circumstantial and contain the elements of decision. Section 2 defines minors, male and female, and provides for the disposition of their property under as stated, rules and regulations provided by the Secretary of the Interior, and declares that the jurisdiction of the probate courts of the state shall be subject to its provisions. And § 6 declares to what courts the property of minors so defined shall be subject. Explicitly such property is made "subject to the jurisdiction of the probate courts of the state of Oklahoma." The qualification "except as otherwise specifically provided by law" means, as said by the circuit court of appeals, "Federal law, not state law."

Counsel, however, resist that conclusion, and contend that the jurisdiction which was made subject to the provisions of the section is yet to be regarded independently of them, and subject to the provisions of the local statutes. The reasoning by which this is attempted to be supported is somewhat involved and is difficult to represent suceinetly. It is that the enabling act of the state, exccept as modified, and the Constitution of the state, continued the laws in force in the territory at the time of its admission into the Union until they expired or were altered or repealed, and that by those laws minors were defined (Wilson's St. § 7, and other laws gave power to confer upon them the rights of majority (Wilson's St. c. 59, art. 5, §§ 73-75). But this did not preclude the exercise of the power of Congress as exhibited in the act of May 27, 1908. Marchie Tiger v. Western Invest. Co., 221 U. S. 286, 55 L. ed. 738, 31 Sup. Ct. Rep. 578. And the courts, both state and Feder

At the time this act was passed, Goodman was a minor of one-eighth Indian blood, and it is hence contended that Goodman having less than one-half Indian blood, his entire allotment was free from all restrictions and was therefore subject to the laws of Oklahoma. And this notwithstanding §§ 2 and 6 of the act, which read respectively as follows: "Section 2. That all lands other than homesteads allotted to members of the Five Civilized Tribes from which restrictions have not been removed may be leased by an allottee if an adult, or by a guardian or curator under order of the proper probate court if a minor or incompetent, for a period not to exceed five years without the privi-al, have found no difliculty in determining lege of renewal: Provided, That leases of restricted lands for oil, gas or other mining purposes, leases of restricted homesteads for more than one year, and leases of restricted lands for periods of more than five years, may be made with the approval of the Secretary of the Interior, under rules and regulations provided by the Secretary of the Interior, and not otherwise: And provided further, that the jurisdiction of the probate courts of the state of Oklahoma over lands of minors and incompetents shall be subject to the foregoing provisions, and the term

its meaning or its dominance over the provisions of the state law. Priddy v. Thompson, 123 C. C. A. 277, 204 Fed. 955; Jefferson v. Winkler, 26 Okla. 653, 110 Pac. 755. And we think it is clear that §§ 1 and 4 are not to be construed independently of the other sections of the act.

In Jefferson v. Winkler an Indian girl married when she was under eighteen, and while under that age conveyed her allotment. It was held that under the general law of Oklahoma the marriage emancipated her, but that, notwithstanding, her conveyance