Fisher v. Cushman

• Decision Date: 15 June 1900
• Docket Number: 315,317.
• Citation: 103 F. 860
• Parties: FISHER et al. v. CUSHMAN et al. In re FISHER et al.
• Court: U.S. Court of Appeals — First Circuit

103 F. 860

FISHER et al. v. CUSHMAN et al.

In re FISHER et al.

Nos. 315, 317.

United States Court of Appeals, First Circuit.

June 15, 1900

Edward F. McClennen (Brandeis, Dunbar & Nutter, on the brief), for appellants.

Addison C. Burnham (Carver & Blodgett, on the brief), for appellees.

Before COLT and PUTNAM, Circuit Judges, and WEBB, District Judge.

PUTNAM Circuit Judge.

One of these cases is an appeal from the district court for the Massachusetts district, sitting in bankruptcy, and the other is a petition to revise the proceedings of that court. 98 F 89. Both relate to the same subject-matter. The appeal will not lie because the subject thereof is not within the three specifications of the matters of appeal found in section 25 of the bankrupt act, approved July 1, 1898 (chapter 541, 30 Stat. 553). Nevertheless, as was determined by us in Re Worcester Co., in our opinion passed down on April 20, 1900 (102 F. 808), the fact that an appeal was taken and a petition also filed does not defeat the right of the party moving this court to have the merits of the controversy adjudicated by us. They do not neutralize each other, and the only result is that the appeal must be dismissed, while the court must proceed to the adjudication of the merits in Ida C. Fisher et al., Petitioners, which petition, on the record before us, involves only a 'matter of law,' as required by section 24b of the bankrupt act.

The controversy in this case is whether, under the circumstances shown in the record, a license issued in accordance with the provisions of the Public Statutes of Massachusetts (chapter 100, Sec. 5), and held by the bankrupt at the time the petition in bankruptcy was filed, can be availed of as assets for the benefit of the creditors in bankruptcy. That section is as follows:

'In a city which at its annual municipal election, or in a town which at its annual meeting, votes to authorize the granting of licenses for the sale of intoxicating liquors as hereinafter provided, licenses of the first five classes mentioned in section ten, and in any city or town licenses of the sixth class mentioned in said section, may be granted annually by the mayor and aldermen of cities or the selectmen of towns to persons applying therefor. Every license shall be signed by the mayor or the chairman of the selectmen, and by the clerk of the city or town by which it is issued, and shall be recorded in the office of such clerk, who shall be paid by the licensee one dollar for recording the same. It shall name the person licensed shall set forth the nature of the license and the building in which the business is to be carried on, and shall continue in force until the first day of the May next ensuing, unless sooner forfeited or rendered void.'

Section 1 of the same chapter provides as follows:

'No person shall sell, or expose, or keep for sale, spirituous or intoxicating liquor, except as authorized in this chapter; but nothing herein contained shall apply to sales made by a person under a provision of law requiring him to sell personal property, or to sales of cider and native wines by the makers thereof, not to be drunk on their premises.'

The power of issuing licenses was transferred to the police commissioners by section 1, c. 83, of the Acts of 1885, as follows:

'The police commissioners, instead of the mayor and city clerk of the city of Boston, shall exercise the powers and perform the duties given to and imposed upon said mayor and city clerk by section five of chapter one hundred of the Public Statutes relating to the signing of licenses for the sale of intoxicating liquors; and said licenses, together with all licenses as hotel keepers or common victuallers shall be recorded in the office of the said commissioners instead of the office of said city clerk.'

Obviously, the licenses thus authorized appertain to the police regulations of the state; and, except for the facts further appearing in the record, they would be in no manner subject to the control of a federal court sitting in bankruptcy, nor could they be availed of by such courts as assets.

The petition for the adjudication in bankruptcy of Ida C. Fisher was filed on October 19, 1898. The license in controversy issued on May 1, 1898. On its face, it purported to run to Ida C. Fisher and Rollin B. Fisher, as Fisher & Co. The record shows that Fisher & Co. was Ida C. Fisher solely, and that therefore Rollin B. Fisher, who is the husband of Ida, had only a nominal interest, and that his name appeared in the license, in accordance with a prevailing custom, to prevent a lapse thereof in the case of the death of Ida. For the purpose of considering the fundamental question in the case, we can assume that it is not complicated by the fact that the name of Rollin B. Fisher appeared in the license, and that Ida was the sole holder of it, both substantially and nominally. The record also shows as follows:

'Liquor licenses are issued by the city of Boston to a limited number only, and are much in demand. They are transferable only with the assent of the board of police commissioners and then only in the following manner: There is a usage and practice by which a license may be surrendered, and a new license issued to another in the place thereof, as follows: The man that desires to go into business files an application describing the locality, and who the persons are that propose to engage in business; and if they are satisfactory, and there is no legal objection to the place where they propose to engage in business, and there will be a vacancy caused in the list of licenses ordinarily granted, the board agrees to one license being surrendered for the purpose of being canceled, and in place of it another is issued to the new firm or persons applying for it. The surrender is ordinarily by a simple form of indorsement addressed to the board of police stating, 'The undersigned hereby surrenders his license for the purpose of having it canceled,' and signed by one or more of the licensees, binding the firm to that agreement.

'There is a recognized value of from $4,000 to $5,000 which attaches to a license for the purpose of such transfer, and such sum can be obtained in the liquor trade for the surrender of a license in favor of another, conditional upon the purchaser proving satisfactory to the board of police commissioners as a licensee.'

It is also said in the record that evidence was submitted that the police commissioners have refused to consent to the transfer of any license until the one seeking to make the transfer has shown himself to be free of debt; but there is no finding to this effect, and the topic becomes unimportant, because, in fact, the license in controversy, with the consent of the commissioners, was surrendered by Ida C. Fisher and Rollin B. Fisher, by their indorsements thereon, made valuable consideration received in connection with the transfer, in accordance with the practice shown by the citation which we have already made.

The trustee in bankruptcy of Ida C. Fisher seasonably claimed that the license should be realized for the benefit of the estate, and petitioned the court for an order on her and Rollin B. Fisher to indorse the license, so that the proceeds thereof might be thus secured. An interlocutory order was entered, pursuant to which the license was indorsed as follows: 'This license is hereby surrendered for cancellation. Ida C. Fisher. Rollin B. Fisher. ' The amount of $4,250 was realized, which was deposited in the registry of the district court, to await its final determination in reference to the district court, to await its final determination in reference to the claims thereto. Subsequently a final decree was entered that the amount so deposited in the court, less an equitable charge thereon of $1,000, should be paid to the trustee as assets. Ida C. Fisher and Rollin B. Fisher objected throughout to these proceedings, and their petition to revise them was seasonably filed in this court, and was answered by the trustee. An issue was thus duly raised on the matter of law whether or not the license or its proceeds were under the control of the district court for the purpose of the action which it took in reference thereto. The appropriate parts of the record in the district court were sent up on the appeal, and they are made parts of Ida C. Fisher et al., Petitioners, by references to them in the petition and answer, though it would have been more prudent to have incorporated them by an express agreement therefor filed in the case.

The only provision of the bankrupt act covering the fundamental question in this case is found in section 70 (30 Stat. 565 566), wherein it is provided that among other things which shall vest in the trustee of an estate of a bankrupt is 'property which prior to the petition he' (that is, the bankrupt) 'could by any means have transferred or which might have been levied upon and sold under judicial process against him. ' No determination by any judicial tribunal of sufficient authority to conclude this court has been brought to our attention or found by us. It is, of course, well settled that governmental pensions and salaries of public officers are not affected by proceedings in bankruptcy; but neither of these can be presumed to represent any capital invested, and public policy forbids their transfer. Hyde v. Woods, 94 U.S. 523, 24 L.Ed. 264, and Sparhawk v. Yerkes, 142 U.S. 1, 12, 12 Sup.Ct. 104, 35 L.Ed. 915, which relate to seats in stock exchanges, in no way touch on matters of police regulation. Nevertheless they settle one question in this case, and that is that the fact that transferability depends on the consent of a stranger does not defeat the claim of creditors in bankruptcy to...