Barutha v. Prentice, 10302.
| Citation | 189 F.2d 29 |
| Decision Date | 11 June 1951 |
| Docket Number | No. 10302.,10302. |
| Parties | BARUTHA et al. v. PRENTICE. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Herbert Levine, Sydney M. Eisenberg, Milwaukee, Wis., for appellant.
Robert D. Jones, Patrick T. Sheedy, Milwaukee, Wis., for appellee.
Before MAJOR, Chief Judge, FINNEGAN and SWAIM, Circuit judges.
This is an appeal from a decree of the District Court holding that a contract motor carrier license, by which the Public Service Commission of Wisconsin authorized Roman Barutha, d/b/a R. B. Trucking Company, to engage in transportation of property by motor vehicle as a contract motor carrier with specified and limited authority of operation and service, constituted an asset of the bankrupt estate and should be sold by the Trustee in Bankruptcy subject to the approval of the Public Service Commission of Wisconsin and to the confirmation of the court. Counsel for the bankrupt contends that the license was not "property" within the meaning of the Bankruptcy Act, 11 U.S.C.A. § 1 et seq., and that even if it were such "property" it was "exempt under the provisions of the Bankruptcy Act and under the Statutes of the State of Wisconsin."
The Bankruptcy Act provides no exemption except such as are granted by State laws but expressly states, 11 U.S.C.A. § 24, that the provisions thereof shall not affect the allowance to bankrupts of the exemptions which are prescribed by the State laws which are in force at the time of the filing of the petition in the State wherein the bankrupt has had his domicile for the six months immediately preceding the filing of the petition. The Wisconsin exemption statute, § 272.18, Wis.Stats., specifically names the various types of property which shall be exempt from execution but does not include franchises, licenses or permits. We agree with the contention of the appellant that such statutes should be liberally construed. However, such liberal construction neither requires nor permits us to read into the Wisconsin exemption statute a type of property entirely different from any mentioned by the Wisconsin Legislature.
A more serious question is presented by the contention of the appellant that the contract motor carrier license did not constitute "property" which passed to the Trustee upon the adjudication that the appellant was a bankrupt. The appellant bases this contention upon § 194.25 of the Wisconsin Statutes, the first paragraph of which section provides that: "(1) No certificate or license issued in accordance with provisions of this chapter shall be construed to be irrevocable, or to confer any property right upon the holder thereof."
The second paragraph of this section, however, provides that: "(2) No right, privilege, certificate or license under the provisions of this chapter shall be sold, assigned, leased, transferred or mortgaged either by voluntary or involuntary action, except after a finding by the commission that the same is not against the public interest."
This section is a part of the Motor Vehicle Transportation Act of Wisconsin which declared, § 194.02, that the purpose and policy of the Legislature was to confer upon the Motor Vehicle Department and the Public Service Commission the power, authority and duty to supervise and regulate the transportation of persons and property by motor vehicles upon or over the public highways of the State so as to protect the safety and welfare of a traveling and shipping public in their use of the highways.
The obvious purpose of the Legislature in § 194.25 was to prevent the holder of such a license from raising a constitutional question as to his property rights in the license in the event it became necessary in the proper administration of the Act for the Commission to revoke the license or to refuse to approve a transfer thereof.
The debtor, appellant herein, failed to list the contract motor carrier license in his schedule of assets and liabilities, insisting that the license did not pass to the Trustee. On the other hand, counsel for the Trustee contends that the license constitutes a valuable asset of the debtor, transferable with the...
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