In re Shear

• Decision Date: 31 January 1956
• Docket Number: No. 14435.,14435.
• Court: U.S. District Court — Northern District of California
• Parties: Matter of Bradford M. SHEAR, Bankrupt.

139 F. Supp. 217

Matter of Bradford M. SHEAR, Bankrupt.

No. 14435.

United States District Court N. D. California, N. D.

January 31, 1956.

Kasch & Cook by Leo M. Cook, Ukiah, Cal., for petitioner.

McKenzie, Arata & Murphy by Gordon McKenzie, Santa Rosa, Cal., for respondent.

HALBERT, District Judge.

The bankrupt, as petitioner here, has filed with this Court a petition for a review of an order of the Referee, adjudicating him an involuntary bankrupt after finding that the bankrupt was not a "wage earner" within the meaning of the Bankruptcy Act, Title 11 U.S.C.A. § 1 et seq. The facts are that the bankrupt was employed as a truck dispatcher with an income of $600 per month at the times that are pertinent to these proceedings, and it was on the basis of these facts that the Referee made his determination that the bankrupt was not, for the purpose of these proceedings, a "wage earner."

Section 4, sub. b of the Bankruptcy Act, Title 11 U.S.C.A. § 22, sub. b, provides, in part, that "Any natural person, except a wage earner or farmer, * * * owing debts to the amount of $1,000 or over, may be adjudged an involuntary bankrupt * * *", and Clause (32), in § 1, of the Bankruptcy Act, Title 11 U.S. C.A. § 1, defines a "wage earner" as "an individual who works for wages, salary, or hire, at a rate of compensation not exceeding $1,500 per year."

The petitioner contends that the portion of § 1, of the Bankruptcy Act, applicable to this proceeding, is void and unconstitutional because it is an unreasonable classification and contrary to the intent of Congress. In essence the argument advanced by petitioner is that the definition of a "wage earner," as clearly and concisely set forth in the Bankruptcy Act, is void as contrary to congressional intent in that Congress, at the time the Bankruptcy Act was originally adopted in 1898, apparently intended to exempt all wage earners from involuntary bankruptcy proceedings, and the existing definition in the Bankruptcy Act does not accomplish this purpose in these modern days of higher income for all. The petitioner is not asking this Court to construe the statute in question; he is, in effect, asking the Court to repeal it, or at the very least amend it. Counsel for petitioner, with refreshing candor, stated to the Court at the time of the hearing on this matter that he was asking the Court to judicially legislate on the subject.

Petitioner argues that since an income of $1,500 was fixed by Congress as the breaking point where a person ceased to be a "wage earner" in 1898, when such a limitation covered almost all, if, in fact, not all of the persons who then worked "for wages, salary, or hire," a congressional intent is thus shown, and a dollars and cents income limitation should not now be permitted to circumvent the congressional intent as it is apparent to petitioner. Petitioner's argument is not without some reason, but it fails to recognize the very important fact that Congress has been meeting regularly since 1898 and has adopted numerous amendments to the Bankruptcy Act, some of which were to the very sections in question, and even so, Congress has, during all of this period of time, chosen to leave the applicable provisions of the Act unchanged.

Petitioner's argument also has its illogical side.¹ It cannot be true that Congress intended to except all wage earners from involuntary bankruptcy when the Bankruptcy Act was originally enacted, for if that had been the intent, Congress could easily and clearly have expressed such intent by simply providing that no wage earner could be adjudged a bankrupt. Having elected to fix $1,500 as the breaking point, it is made very clear that Congress even then recognized that there were, or would be, wage earners who would earn over $1,500 per year, and it is apparent that it was the wish and intent of Congress that the law should apply only to those wage earners whose income did not exceed $1,500 per year.

With this analysis of petitioner's argument in mind, it becomes very apparent that the only issue involved in this proceeding is whether this Court should usurp the legislative duties assigned by the Constitution to Congress and in effect repeal the definition of a "wage earner," as it is set forth in Clause (32), of § 1, of the Bankruptcy Act, as quoted above.

The issue before the Court could easily be made the subject of a theoretical treatise dealing in technical definitions, social hypothesis, and various theories of economics, but actually the case hinges on a precept fundamental to our form of government. Such being the case, I propose to meet the issue squarely and decide it on a fundamental rather than on a theory.

While petitioner only urges that the portion of § 1, of the Bankruptcy Act applicable to these proceedings is void and unconstitutional, it will be well to first note that there can be no legitimate constitutional question asserted concerning the right of Congress to pass the Bankruptcy Act itself or the sections here questioned by petitioner. Article I, § 8, of the Constitution of the United States, grants Congress the authority and power to enact uniform laws relative to bankruptcy, and this power is both unlimited and supreme. Sturges v. Crowninshield, 4 Wheat. 122, 4 L.Ed. 529. The statutes challenged by petitioner are in no manner of speaking laws that create unequal classifications, and it is not within the power of this Court to question the propriety of these laws since they were legally enacted within the bounds set forth in the Constitution of the United States. This rule has been aptly stated by the late Judge Sawtelle in San Francisco Shopping News Co. v. City of South San Francisco, 9 Cir., 69 F.2d 879, at page 886, where he says, "* * * the Supreme Court has repeatedly declared that the courts are not concerned with the motives or purposes of a lawmaking body, save as they appear in the legislation itself, provided that the enactments are within the scope of the Legislature's authority."

Since the Bankruptcy Act is a properly enacted law, the petitioner can prevail in this proceeding only if there is legal merit to his claim that this Court has the authority, and the duty, to judicially legislate on the issues raised by petitioner, and that justice requires that this Court exercise this right, which petitioner asserts this Court has. Unless this Court has the right to judicially legislate, there is no need to consider any other point now raised by petitioner. In view of this circumstance, I shall first consider whether this Court has, in fact, the power or the authority to judicially legislate before any consideration is given to the propriety of doing so in this particular case.

Courts may, and should, interpret the law as it has been legally created or enacted, but courts should not add to, subtract from, repeal, or promulgate laws on their own initiative. In other words, the courts may clarify and make workable the laws that have been legally created, but the courts may not under our form of government judicially legislate. It is one of the fundamental principles of our form of government that the legislative power shall be separated from the judicial power. The power to declare what the law shall be belongs to the legislative branch of the government; the power to declare what the law is, or has been, belongs to the judicial branch of the government. See: Ogden v. Blackledge, 2 Cranch 272, 2 L.Ed. 276; Town of Koshkonong v. Burton, 104 U.S. 668, 26 L.Ed. 886, and United States v. Salberg, D.C., 287 F. 208. Neither of these branches of the government may invade the province of the other. Commonwealth of Massachusetts v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078. The courts declare and enforce the law, but they do not make the law. United States v. First National Bank of Detroit, 234 U.S. 245, 34 S.Ct. 846, 58 L.Ed. 1298; United States v. Consolidated Elevator Co., 8 Cir., 141 F. 2d 791; Hale v. Anglim, 9 Cir., 140 F. 2d 235, and Athens Stove Works v. Fleming, 4 Cir., 66 F.2d 855. This is for the reason that courts do not have the function of legislating or the power to legislate. See: United States v. Goldenberg, 168 U.S. 95, 18 S.Ct. 3, 42 L.Ed. 394; Koster v. Turchi, 173 F.2d 605; In re Blalock, D.C., 31 F.2d 612, and Braffith v. People of Virgin Islands, 3 Cir., 26 F.2d 646. The legislative department alone has the duty of making the laws, Commonwealth of Massachusetts v. Mellon, supra.

The judicial function to be exercised in construing a statute is limited to ascertaining the intention of the legislature therein expressed. Ebert v. Poston, 266 U.S. 548, 45 S.Ct. 188, 69 L.Ed. 435. Congressional intent is sought primarily in the language of the statute, and where this language expresses an intention reasonably intelligible and plain, it must be accepted without modification by resort to construction or conjecture. Thompson v. United States, 246 U.S. 547, 38 S.Ct. 349, 62 L.Ed. 876, and Gorin v. United States, 9 Cir., 111 F. 2d 712. There is no need for resort to the rules of interpretation or construction when the language of the statute is plain and free from ambiguity. Osaka Shosen Kaisha Line v. United States, 300 U.S. 98, 57 S.Ct. 356, 81 L.Ed. 532; Adams Express Co. v. Commonwealth of Kentucky, 238 U.S. 190, 35 S.Ct. 824, 59 L.Ed. 1267; Athens Stove Works v. Fleming, supra, and Braffith v. People of Virgin Islands, supra. Even if the true application of the statute would have a harsh effect, the harsh effect cannot influence the Court's administration of that law. United States v. First National Bank of Detroit, supra; In re Blalock, supra, and In re Mitchell, 120 Cal. 384, 52 P. 799. It is not a function of a court to determine whether public policy, which is expressed in legislation, is well or ill conceived, Otis v. Parker, 187 U.S. 606, 23 S.Ct. 168, 47 L.Ed. 323, and Williams v. Mayor and City Council of Baltimore, 289 U.S. 36, 53 S.Ct. 431, 77 L.Ed. 1015.

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