$41.] Disobedience to Subpoena - Contempt Proceedings-Witness Fees. doing of the forbidden act had occurred with reference to the process of, or in the presence of the court. Analogous Provisions of Former Acts. R. S. sections 5002, 5005 and 5006; act of 1867, sections 5 and 7; act of 1800, sections 14 and 15; also R. S. section 4999; act of 1867, section 4. Disobedience to Supoena.-To justify a person who is properly subpoenaed and to whom has been paid the required mileage and fees, in refusing to attend, it would seem from this section that he must show that he not only lives outside of the State, but more than one hundred miles from the place where he is required to attend. (Compare, however, U. S. R. S., section 876.) The fact that he lives in a different judicial district will not excuse him. A referee's subpœna reaches beyond the limits of the judicial district. In this respect it differs from other process. The referee to whom a case is referred has all the powers of the court which appoints him for the purpose of summoning and examining witnesses, except the power of commitment. (In re W. S. Woodward, 10 Pac. L. R. 214; s. c. 8 Ben. 112; Fed. Cas. 18,000; S. c. 12 N. B. R. 297.) Contempt Proceedings.-Although a register (like a referee) could not punish for contempt, yet in the case of Speyer (Fed. Cas. 13,239; 6 N. B. R. 255), arising under the act of 1867, where a party moved the court before the judge for an order to punish a bankrupt for contempt for disobeying an order of the register, the court referred the matter back to the register to take such testimony as the bankrupt might offer in order to purge himself of the contempt. And this seems to be the practice under the present statute, In re McCormick, 3 Am. B. R. 340; 97 Fed. 566. Witness Fees.-U. S. Revised Statutes, section 848, provides: "For each day's attendance in court, or before any officer pursuant to law, one dollar and fifty cents, and five cents a mile for going from his place of residence to the place of trial or hearing, and five cents a mile for returning. When a witness is subpœ Witness Fees - Records of Referees - Referee's Absence. [Ch. V. naed in more than one cause between the same parties, at the same court, only one travel fee and one per diem compensation shall be allowed for attendance. Both shall be taxed in the case first disposed of, after which the per diem attendance fee alone shall be taxed in the other cases in the order in which they are disposed of. When a witness is detained in prison for want of security for his appearance, he shall be entitled, in addition to his subsistence, to a compensation of one dollar a day." U. S. Revised Statutes, section 849, provide: "No officer of the United States courts, in any State or Territory, or in the District of Columbia, shall be entitled to witness fees for attending before any court or commissioner where he is officiating." As to practice in punishing for contempt by the district judge, see Chapter II, ante, sub nom. CONTEMPTS. SEC. 42. Records of Referees.-a The records of all proceedings in each case before a referee shall be kept as nearly as may be in the same manner as records are now kept in equity cases in Circuit Courts of the United States. b A record of the proceedings in each case shall be kept in a separate book or books, and shall, together with the papers on file, constitute the records of the case. c The book or books containing a record of the proceedings shall, when the case is concluded before the referee, be certified to by him, and, together with such papers as are on file before him, be transmitted to the court of bankruptcy and shall there remain as a part of the records of the court. Analogous Provisions of Former Acts. R. S. section 5000; act of 1867, section 4. Records as Evidence.-As to a certified copy of any of the records being admissible in evidence, compare section 21d. SEC. 43. Referee's Absence or Disability.-a Whenever the office of a referee is vacant, or its occupant is absent or disqualified to $44-] Appointment of Trustees The Right of Appointment. act, the judge may act, or may appoint another referee, or another referee holding an appointment under the same court may, by order of the judge, temporarily fill the vacancy. Analogous Provisions of Former Acts. R. S. section 5007; act of 1867, section 4. Transfer of Cases for Cause.-As to the power of the judge to transfer a case from one referee to another for convenience of parties or for cause, see section 22 b and G. O. 6. SEC. 44. Appointment of Trustees.-a The creditors of a bankrupt estate shall, at their first meeting after the adjudication or after a vacancy has occurred in the office of trustee, or after an estate has been reopened, or after a composition has been set aside or a discharge revoked, or if there is a vacancy in the office of trustee, appoint one trustee or three trustees of such estate. If the creditors do not appoint a trustee or trustees as herein provided, the court shall do so. Analogous Provisions of Former Acts. R. S. section 5034; act of 1867, section 13. As to appointment of an assignee to fill a vacancy: R. S. section 5041; act of 1867, section 18. The Right of Appointment.-This section gives to creditors in the first instance an absolute right to appoint a trustee. The matter has recently been very thoroughly discussed in an opinion by Judge Brown of the Southern District of New York in re Lewensohn, 3 Am. B. R. 299; 98 Fed. 576. The doctrine laid down in that case is that the referee should not disapprove of the choice of the trustee by the creditors, nor should he interfere with or obstruct such choice except upon clear proof of incompetence for duty or non-residence. The opinion states the facts as here presented. So far as it bears upon the question of choice of the trustee it will be found to be a complete discussion of that subject. The Right of Appointment. [Ch, V. 'Opinion of Brown, Judge: At the first meeting of creditors in the above proceeding, on December 5th, all who had proved their claims, being thirtyeight in number and representing debts to the amount of about $150,000, voted for Francis M. Bacon, Jr., of this city, as trustee. His firm of Bacon & Co. was one of the four largest creditors, having a claim of $11 450. On December 12th, to which day the meeting was adjourned, objections were for the first time made on behalf of the bankrupt, and the referee was asked to disapprove of the trustee elected on the ground that he was not competent, impartial and unbiased. The matter was taken under consideration by the referee, and the meeting adjourned without day. On the next day the referee disapproved of the trustee elected, on the ground above stated. and appointed another trustee. A motion is now made to set aside this appointment. The subject has been argued at length, both as respects the right of the referee to appoint a trustee upon such a disapproval, as well as upon the sufficiency of the objections raised against the confirmation of the trustee chosen by the creditors. Substantially the same question has been presented to me as to the referee's power to appoint when an elected trustee declines to serve or fails to qualify. The same considerations apply to all these cases, and I shall treat them as one. I. Section 44 of the Bankrupt Act provides that the creditors shall appoint one or more trustees at their first meeting after the adjudication or after a vacancy has occurred in the office of trustee ** or if there is a vacancy in the office of trustee,' and that if the creditors do not appoint the court shall do so. Whatever may be the reserved or implied power of courts of bankruptcy under the last paragraph of section 2 to appoint a trustee when necessary, resort to such an implied power cannot ordinarily be had in cases where the statute itself designates a different mode of appointment; and in doubtful cases the general intent of the law, as gathered from its express provisions, should be observed so far as possible. I. upon the referee's disapproval of an elected trustee, or upon the trustee's refusal to accept, or failure to qualify. there is a vacancy in the office of trustee,' the case falls within one of the clauses of section 44 above cited, and a further election by creditors must be had where, as in this case, such an election is practicable; and, in my opinion, these cases do fall within both the letter and the spirit of section 44 (see Collier on Bankruptcy. 246; Loveland, Bankr. 204, sec. 270, sec. 142). In the case of In re Smith. N. B. R. 243. 247; 2 Ben. 113, 22 Fed. Cas. 261. Blatchford, J. says of the Act of 1867: The policy of the Bankrupt Act, as clearly shown in its provisions, is to give to the creditors of the bankrupt the free, deliberate, unbiased choice in the first instance of the person who is to take the assets and manage them. The importance of this policy has been uniformly recognized by this court. It is especially incumbent upon registers in no manner to interfere with or influence, either directly or indirectly, the choice of an assignee by creditors.' This general intent is still more strongly manifested by the Act of 1898. since the latter act has largely curtailed the former power of the court to $ 44.] The Right of Appointment. appoint, and correspondingly extended the right of creditors. Section 13 of the Act of 1867 (sec. 5034, Rev. St.) provides for an election by creditors at the first meeting only, and authorizes the court to fill all vacancies; at the same time it expressly treats a failure to qualify as a case of ‘vacancy.' The Act of 1898, however, provides for an election by creditors, not only at their first meeting. but in five other contingencies, viz.: (1) After a vacancy has occurred in the office of trustee; (2) after an estate has been re-opened; (3) after a composition has been set aside (4) or a discharge revoked, or (5) ‘if there is a vacancy in the office of trustee.' These clauses seem designed to cover all situations. The authority of the court to fill vacancies, given by the Act of 1867, is wholly omitted; no such authority is anywhere to be found in the Act of 1898; while section 2, paragraph 17, in defining the jurisdiction of the court in this regard, authorizes it to appoint trustees only 'Pursuant to the recommendation of creditors, or when they neglect to recommend the appointment of trustees .. and upon complaints of creditors, remove trustees for cause upon hearings and after notices to them.' From what the act provides, as well as from what it omits, therefore, the necessary inference is that it designs to give creditors in all cases an opportunity to choose the trustee, and to authorize the court to appoint only where they neglect or fail to do so. This was one of the merits of the act that was urged upon its passage (Collier, Bankr. 33). The general orders are framed on this view: No. 14 forbidding any official trustee, or trustee for any class of cases, and No. 25 authorizing a meeting of creditors to be called whenever there is a vacancy in the office of trustee.' The particular language of the two clauses of section 44 as respects' vacancies' shows the same intent. The first clause. after a vacancy has occurred,' imports that the office was previously filled; but, the revisers apparently not being satisfied with this limitation, the second clause was added in order to secure an opportunity of choice to creditors in every case 'where there is a vacancy,' i. e. where the office, from whatever cause, is unfilled. For the word 'vacancy' alone does not import that the office has been previously filled. Bouvier's Law Dictionary defines the word as place which is empty. The term is principally applied to cases where the office is not filled.' In the Century Dictionary it is defined: (d) An unoccupied or unfilled post, position or office.' So long as the office is unfilled, therefore, there is a vacancy,' whether previously filled or not, and this second clause, as respects vacancies, therefore, applies. If this clause were not broader than the first, it would be mere surplusage. The two clauses indicate the composite origin of the text; and the latter in effect supersedes the former. That the word vacancy is used in the broad sense above stated is further shown, not only by the Act of 1867 (sec. 5034), which provides that if the assignee chosen fails to accept the trust the judge or register may fill the vacancy (that is, a 'vacancy,' though the office had not been previously filled), but section 50 of the present act, after requiring a bond from the trustee before entering upon the performance of his official |