sideration. in the leading case of Ex parte Royall, 117 U. S. 241, 6 Sup. Ct. 734, 29 L. Ed. 868, and were repeated in one of the most recent cases upon the subject, as follows: 'We cannot suppose that Congress intended to compel those courts, by such means, to draw to themselves, in the first instance, the control of all criminal prosecutions commenced in state courts exercising authority within the same territorial limits, where the accused claims that he is held in custody in violation of the Constitution of the United States. The injunction to hear the case summarily, and thereupon "to dispose of the party as law and justice require," does not deprive the court of discretion as to the time and mode in which it will exert the powers conferred upon it. That discretion should be exercised in the light of the relations existing, under our system of government, between the judicial tribunals of the Union and of the states, and in recognition of the fact that the public good requires that those relations be not disturbed by unnecessary conflict between courts equally bound to guard and protect rights secured by the Constitution.' 'Where a person is in custody, under process from a state court of original jurisdiction, for an alleged offense against the laws of such state, and it is claimed that he is restrained of his liberty in violation of the Constitution of the United States, the Circuit Court has a discretion, whether it will discharge him, upon habeas corpus, in advance of his trial in the court in which he is indicted; that discretion, however, to be subordinate to any special circumstances requiring immediate action. When the state court shall have finally acted upon the case, the Circuit Court has still a discretion whether, under all the circumstances then existing, the accused, if convicted, shall be put to his writ of error from the highest court of the state, or whether it will proceed, by writ of habeas corpus, summarily to determine whether the petitioner is re strained of his liberty in violation of the Constitution of the United States.' Ex parte Royall. 117 U. S. 241, 251-253, 6 Sup. Ct. 734, 29 L. Ed. 868; New York v. Eno, 155 U. S. 89, 93-95, 15 Sup. Ct. 30, 39 L. Ed. 80.

"In ex parte Royall and in New York v. Eno it was recognized that in cases of urgency, such as those of prisoners in custody, by authority of a state, for an act done or omitted to be done in pursuance of a law of the United States, or of an order or process of a court of the United States, or otherwise involving the authority and operations of the general government, or its relations to foreign nations, the courts of the United States should interpose by writ of habeas corpus. Such an exceptional case was In re Neagle, 135 U. S. 1, 10 Sup. Ct. 658, 34 L. Ed. 55, in which a deputy marshal of the United States charged under the Constitution and laws of the United States with the duty of guarding and protecting a judge of a court of the United States. and of doing whatever might be necessary for that purpose, even to the taking of human life, was discharged on habeas corpus from custody under commitment by a magistrate of a state on a charge of homicide committed in the performance of that duty. Such was In re Loney, 134 U. S. 372, 10 Sup. Ct. 584, 33 L. Ed. 949, in which a person arrested by order of a magistrate of a state, for perjury in testimony given in the case of a contested Congressional election, was discharged on habeas corpus, because a charge of such perjury was within the exclusive cognizance of the courts of the United States, and to permit it to be prosecuted in the state courts would greatly impede and embarrass the administration of justice in a national tribunal. Such again, was Wildenhaus' Case. 120 U. S. 1, 7 Sup. Ct. 385, 30 L. Ed. 565, in which the question was decided on habeas corpus whether an arrest, under authority of a state, of one of the crew of a foreign merchant vessel, charged with the commission of a crime on board of her while in a port within the state, was contrary to the provisions of a treaty between the United States and the country to which the vessel belonged. But, except in such peculiar and urgent cases, the courts of the United States will not discharge the prisoner by habeas corpus in advance of a final determination of his case in the courts of the state; and, even after such final determination in those courts, will generally leave the petitioner to the usual and orderly course of proceeding by writ of error from this court."

And in Minnesota v. Brundage, where the Circuit Court had held the state statute under which the petitioner had been convicted void,

as in conflict with the Constitution of the United States, and had discharged the petitioner on habeas corpus before he had exhausted his remedies provided by the state law, the Supreme Court, in reversing the action of the Circuit Court, after referring to the exceptional instances mentioned in Whitten v. Tomlinson, said (pages 503-504 of 180 U. S., page 457 of 21 Sup. Ct., 45 L. Ed. 639):

"The present case does not come within any of the exceptions to the general rule announced in the cases above cited. It is not, in any legal view, one of urgency. The accused does not, in his application, state any reason why he should not be required to bring the question involved in the prosecution against him before a higher court of the state and invoke its power to discharge him if in its judgment he is restrained of his liberty in violation of the Constitution of the United States. It cannot be assumed that the state court will hesitate to enforce any rights secured to him by that instrument, for upon them equally with the courts of the Union rests the duty to maintain the supreme law of the land. Robb v. Connolly, 111 U. S. 624, 637, 4 Sup. Ct. 544. 28 L. Ed. 542. If the state court declined to recognize the federal right specially claimed by the accused, the case could be brought here for review. After observing that the questions of constitutional law arising in this case has been determined in Schollenberger v. Pennsylvania, 171 U. S. 1, 18 Sup. Ct. 757, 43 L. Ed. 49, and Collins v. New Hampshire, 171 U. S. 30, 18 Sup.. Ct. 768, 43 L. Ed. 60, adversely to the present contention of the state, and that there was jurisdiction to discharge the petitioner on habeas corpus, the Circuit Court said: 'Even then, for reasons of comity, such power will seldomn be exercised by the Circuit Court to discharge a petitioner held under process from a state court, even after conviction by the trial court, unless large interests affecting the business of many or the rights of the public are so involved that serious consequences will follow from the delay which will be caused by the prosecution of a writ of error to a final decision, or unless the question has already been decided by the Supreme Court of the United States, whose decision the state court has disregarded in the proceeding."

So, again, in Baker v. Grice, where the Circuit Court had discharged on habeas corpus the petitioner who was charged with the violation of a statute of the state of Texas called the "Anti-Trust Act," holding that the statute was in violation of the Constitution of the United States, the Supreme Court, reversing the action of the Circuit Court, say (pages 290-291 of 169 U. S., page 325 of 18 Sup. Ct., 42 L. Ed. 748):

"The court below had jurisdiction to issue the writ and to decide the questions which were argued before it. Ex parte Royall. 117 U. S. 241, 6 Sup. Ct. 734, 29 L. Ed. 868; Whitten v. Tomlinson, 160 U. S. 231, 16 Sup. Ct. 297, 40 L. Ed. 406. In the latter case most of the prior authorities are mentioned. From these cases it clearly appears, as the settled and proper procedure, that while Circuit Courts of the United States have jurisdiction, under the circumstances set forth in the foregoing statement, to issue the writ of habeas corpus, yet those courts ought not to exercise that jurisdiction by the discharge of a prisoner unless in cases of peculiar urgency, and that instead of discharging they will leave the prisoner to be dealt with by the courts of the state; that after a final determination of the case by the state court, the federal courts will even then generally leave the petitioner to his remedy by writ of error from this court. The reason for this course is apparent. ceedingly delicate jurisdiction given to the federal courts by which a person under an indictment in a state court and subject to its laws may, by the decision of a single judge of the federal court, upon a writ of habeas corpus, be taken out of the custody of the officers of the state and finally discharged therefrom, and thus a trial by the state courts of an indictment found under the laws of a state be finally prevented. Cases have occurred of so exceptional a nature that this course has been pursued. Such are the cases of In re Loney, 134 U. S. 372, 10 Sup. Ct. 584, 33 L. Ed. 949, and In re Neagle, 135 U.

It is an ex

S. 1, 10 Sup. Ct. 658, 34 L. Ed. 55; but the reasons for the interference of the federal court in each of those cases were extraordinary, and presented what this court regarded as such exceptional facts as to justify the interference of the federal tribunal. Unless this case be of such exceptional nature, we ought not to encourage the interference of the federal court below with the regular course of justice in the state court."

The same rule is recognized and stated in all the other cases cited, including that of U. S. v. Rauscher, most strongly relied upon by petitioner.

Applying the rule declared in these cases, it is at once apparent that this case has not reached a point where interference by this court would be justified. While it is alleged in the petition in general terms that petitioner has exhausted the remedies afforded him by the laws of the state, this is but a legal conclusion, not supported by the facts, as it appeared at the hearing that his appeal from the judgment of which he complains is still pending in the District Court of Appeal of the state undetermined. It was stated by petitioner that the record on this appeal did not present the main question upon which petitioner relies upon this application; but, if this be so, it does not answer the objection, since it may well be that that court may find other grounds upon which the case will have to be reversed, and thus rid the petitioner of the obnoxious judgment.

But, independently of this consideration, it still remains that petitioner has his remedy by writ of error, already granted by the Chief Justice of the state, and which petitioner is at liberty to take out at his pleasure and thus have the judgment of that court in the habeas corpus proceeding reviewed by the Supreme Court of the United States; and, since the case very clearly does not fall within the class of recognized exceptions to the rule as above stated, petitioner should be relegated to that remedy.

For these reasons, the writ must be denied, and the petition dismissed. It is so ordered.

In re JACOBS & ROTH.

(District Court, W. D. Pennsylvania. May 2, 1907.)
No. 3,488.

1. BANKRUPTCY-SELECTION OF TRUSTEE-RIGHT OF CREDITORS TO ELECT.
The selection of a trustee in bankruptcy is properly and primarily the
business of the creditors, who are owners of the fund which must bear the
expense of administration, and where a majority in number and in amount
of claims have voted for one person for trustee the referee is not justified
in refusing to ratify his election solely because he does not reside in the
county where the assets are situated and in appointing another person
trustee.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 6, Bankruptcy, §§ 168-183.]

2. SAME-EXAMINATION OF BANKRUPT SCOPE.

Under Bankr. Act July 1, 1898, c. 541, § 7 (9), 30 Stat. 548 [U. S. Comp. St. 1901, p. 3425], which authorizes the examination of a bankrupt "concerning the conduct of his business, * * * his dealings with his creditors and other persons, the amount, kind and whereabouts of his

property," etc., a question as to whether a bankrupt did not make a certain statement in writing as to his assets within a few months prior to his bankruptcy upon which he obtained property on credit from certain of his creditors is material and proper to be asked him on his examination.

In Bankruptcy. Sur certificate from referee.

William Murrin and John Murrin, for bankrupts and trustee.
Sachs & Hirshfield, for creditors.

EWING, District Judge. The questions raised by the certificate from the referee in this case go to the validity of the election of a trustee of said bankrupt estate and the ruling of the referee upon interrogatories to one of the bankrupts during his examination.

The meeting of creditors was held at Butler, Butler county, Pa., February 28th last, and before proceeding to the election of a trustee the referee announced to the creditors and their representatives there present that "he would refuse to approve the election of a trustee residing outside of the county, so long as there was a capable man residing near the assets of the estate who was willing to serve," and he also told representatives of the creditors who were not present that they would be required to produce letters of attorney for their authority to act for such creditors before they could take part in the election of a trustee. Mr. Adolph Steele and Mr. George Sapper were nominated for trustee, and at the conclusion of the election the referee announced that while Mr. Sapper had received a majority of the number of creditors and of the amount of the claims, yet, for the reason he had stated, he would not approve his election, and thereupon appointed Mr. Steele. In his certificate the referee states that, while he made that announcement, it was the result of an error in the calculation of the different claims, and that really the claims as then voted gave Mr. Steele a majority, while Mr. Sapper had a majority of the creditors. He also states in a supplementary certificate filed that one of the claims voted at that time for Mr. Steele, and calculated at the amount of $405, was subsequently reduced to $360, by reason of credits to which the bankrupts were entitled which had not been previously allowed them. With this reduction the referee's announcement at the time of the election was correct, leaving Mr. Sapper at that time the recipient of the votes of a majority of the creditors in number and of the amount of claims. Mr. Sapper is a resident of Allegheny county, and not of Butler, and it was on that account that his election was not approved. No objection whatever to his competency was taken.

The reason assigned by the referee for objecting to a trustee residing outside of the county in which the bankrupt's estate is located is that he has by experience found that the expenses and charges of the trustee and of his attorney are greatly increased, and that his action in this case was actuated by no feeling for or against either candidate, but arose from a desire on his part to serve the estate and diminish the expenses incident to its settlement. This motive is commendable, but inasmuch as the referee has large control over the compensation allowed trustees and their counsel, and since such compensation

is properly based on services rendered and not on traveling expenses to and from the point of settlement of estates, there does not appear to be any reason why the compensation of a trustee, except in occasional cases and under peculiar circumstances, should be either increased or diminished by reason of the place of residence of such trustee and counsel. The selection of a trustee is properly and principally the business of the creditors, and it is their fund from which his compensation must come. Under all ordinary circumstances they can be relied upon to have the question of the diminution of the fund by reason of such compensation in mind when they proceed to the election of a trustee. The designation, then, by the referee of Mr. Steele as trustee in this case was an error, and especially so in view of the fact that Mr. Sapper presented a stipulation to the effect that he would not charge for any expenses incurred by him by reason of his residence outside of the county.

Another fact in connection with the election is that, when called upon to produce the powers of attorney by virtue of which certain creditors were represented at that election, the referee is unable to find powers of attorney for two of the creditors whose votes were cast and counted for Mr. Steele, representing a little over $200 in amount of claims. The referee states, however, that to the best of his recollection those claims were voted upon powers of attorney, but one of those creditors denies having given any such authority. The whole aspect of the case gives one the impression that the referee was taking too active an interest in the selection of a trustee. It is not the part of a referee to identify himself in any manner with the interest of either the bankrupt, or his creditors, or the counsel interested in the case. His duty is to keep himself entirely free from any interest or any manifestation of interest in the case one way or the other, and the more perfectly he can accomplish this the better can he perform the duties of his position. It now appears that the estate of these bankrupts has all been disposed of, and that practically nothing remains but the distribution of the assets. Mr. Steele having qualified under his appointment by the referee and given the required security, his actions were at least those of a de facto trustee, however irregular his election may have been; and, since he has conducted the business of the office to a practical conclusion thereof, it would accomplish no good purpose and might involve the estate in additional expense to now oust him and place another in charge at this late date.

It is alleged by the creditors that his disposition of the bankrupt's estate was made without any notice to them, and if this be the case, and the amount realized from the estate should appear inadequate in consequence, the result may be that he may be personally responsible to the creditors for mismanagement. For this reason, also, it is perhaps better to retain him in his position until his account is settled and the estate finally distributed. The fact, however, that no ouster is decreed in this case must not be regarded as a precedent.

In the course of the examination of Jacob Jacobs, one of the bankrupts, Mr. Sachs, representing certain of the creditors, showed the witness a paper, being a statement of credit made to the Fushan-Zeman Shoe Company in September last, and asked him if he had signed it.