UNITED STATES v. EMORY et al., 314 U.S. 423

Mr. Justice Byrnes delivered the opinion of the Court. This case involves the application of § 3466 of the Revised Statutes to a claim of the United States under the National Housing Act in an equity receivership proceeding in a state court. The St. James Distillery, a corporation, executed a note to the Industrial Bank and Trust Company of St. Louis on September 23, 1935. On July 14, 1936, the Bank endorsed the note and delivered it to the Federal Housing Administration, acting on behalf of the United States, under a contract of insurance and. guaranty provided for in Title I of the National Housing Act.

The United States,. through 'the Federal Housing Administration, on that date reimbursed the Bank in the amount of $5988.88, the balance due on the note. Emory, claiming wages due him, filed a petition on August 27, 1936 in the Circuit Court of Phelps County, Missouri, alleging that the St. James Distillery was hopelessly insolvent and praying that a receiver be appointed. On September 9, the Circuit Court found all the issues in Emory’s favor and appointed a receiver who took possession of the corporate assets.

After deductions for the costs of the receivership, the assets available for distribution totaled $678. Against this amount the wage claims of “about twelve individuals” were filed. The separate amounts of these claims were neither stipulated nor determined by the courts below; their aggregate was “about $900.” The United States, on behalf of the Federal Housing Administration, filed a claim for the $5988.88 due on the note. The wage claimants asserted priority under § 1168 of the Revised Statutes of Missouri; the United States asserted priority under § 3466 of the Revised Statutes of the United States.

The Circuit Court of Phelps County decided that the claim of the United States should be treated as an ordinary claim against the estate, and that the wage claims should be paid first. On appeal, the Springfield Court of Appeals held that the claim of the United States on behalf of the Federal Housing Administration was accorded preference over ordinary claims by § 3466 of the Revised Statutes of the United States. Consequently, it was of the opinion that the Circuit Court had erred in treating the claim of the United States as an ordinary claim.

However, it held further that the error was of no consequence, since the Missouri statute granted priority to wage claims even over other preferred claims and no assets would remain after they had been satisfied. Rehearing was denied, and the Supreme Court of Missouri denied a petition for cer-tiorari. We granted certiorari because of the importance of the question and because of an asserted conflict of decisions. The applicability of § 3466 to this case is clear. The

section applies in terms to cases “[1] in which a debtor, not having sufficient property to pay all his debts, makes a voluntary assignment thereof, or [2] in which the estate and effects of an absconding, concealed, or absent debtor are attached by process of law, . . . [or] [3] in which

an act of bankruptcy is committed.” This case falls within the third category. It is agreed that the St. James Distillery was insolvent “on or before August 1936” and that in response to a creditor’s petition a receiver was appointed to liquidate the corporate assets. The appointment of a receiver under such circumstances is among the most common examples of an “act of bankruptcy.” Cf. § 3 (a) (4) of the Bankruptcy Act, U. S. C., Title 11, § 21 (a) (4). Just such proceedings as this, therefore, are governed by the plain command of § 3466 that “debts due to the United States shall be first satisfied.” The purpose of this

section is “to secure adequate public revenues to sustain the public burden” (United States v. State Bank of North Carolina, 6 Pet. 29, 35), and it is to be construed liberally in order to effectuate that purpose (Bramwell v. U. S. Fidelity & Guaranty Co., 269 U. S. 483, 487). In view of this language, purpose, and rule of construction, the priority asserted here by the United States appears to be securely established. The court below, however, held otherwise. In granting priority to the wage claims over that of the United States, it relied upon Missouri law.

It recognized, as the authorities obliged it to recognize, that the state statute could not prevail if it was in conflict with § 3466. But it decided that no such conflict arose, for the reason that § 3466 had been impliedly modified by § 64a of the Bankruptcy Act, which, like the Missouri statute, requires that wage claims be satisfied before those of the United States.

The judgment below must have rested upon either of the following theories: that Congress intended by § 64a of the Bankruptcy Act to subordinate claims of the United States to wage claims in non-bankruptcy proceedings generally; or that Congress intended by § 64a to modify § 3466 only so far as to grant priority over the United States to wage claimants in state non-bankruptcy proceedings when they would be entitled to such priority by otherwise applicable state law. There is a difficulty common to both theories which we regard as insurmountable.

Neither the language of § 64a nor the Congressional history of the legislation here involved supports the proposition that § 64a was intended to eliminate, either partially or wholly, the priority of claims of the United States in non-bankruptcy proceedings. The provisions of § 3466 have been in force since 1797, without significant modifications. 1 Stat. 515. The first three federal bankruptcy acts specifically preserved the priority of the United States over all other claimants in bankruptcy proceedings in the federal courts.

Section 64 of the Bankruptcy Act of 1898, however, disturbed this state of affairs. It provided an order of distribution of the assets of bankrupt estates in which certain wage claims preceded non-tax claims of the United States. While § 64 has been altered since 1898 in several particulars, the priority of wage claims over non-tax claims of the United States has continued. Consequently, we must look to the Act of 1898 for evidence that' the priority accorded to wage claims by § 64 was intended to apply to more than bankruptcy proceedings in the federal courts. We find no such evidence.

The entire Act of 1898, as § 2 in particular plainly reveals, was designed to create federal courts of bankruptcy and to define their functions. Indeed, § 64 itself, in subdivision (a), refers to the “court”; § 1 provides that, as used in the Act, “court” means “the court of bankruptcy in which the proceedings are pending” ; and § 1 also provides that “courts of bankruptcy,” as used in the Act, mean the federal district courts and a few other federal courts. There is no internal sign that any part of § 64 was intended to apply to state courts or to non-bankruptcy proceedings in the federal courts.

We have looked in vain in the committee reports and the debate upon the bill for any external hint of such an intention. It is not strange, therefore, that both courts and commentators have assumed that the application of § 64 of the Act of 1898 was limited to federal bankruptcy proceedings, and that the priority of claims of the United States in non-bankruptcy proceedings remained unaffected. Bramwell v. U. S. Fidelity & Guaranty Co., 269 U. S. 483; Price v. United States, 269 U. S. 492; Stripe v. United States, 269 U. S. 503; United States v. Butterworth-Judson, 269 U. S. 504; Mellon v.

Michigan Trust Co., 271 U. S. 236, 238-239; Spokane County v. United States, 279 U. S. 80; New York v. Maclay, 288 U. S. 290. See Rogge, The Differences in Priority of the United States in Bankruptcy and in Equity Receiverships, 43 Harv. L. Rev. 251; Blair, The Priority of the United States in Equity Receiverships, 39 Harv. L. Rev. 1. We are aware of but a single case in which an appellate court has specifically passed upon the contention that the priority granted to the United States in non-bankruptcy proceedings by § 3466 has been modified by § 64 of the Bankruptcy Act.

And in that case, the contention was rejected. Matter of Kupshire Coats, Inc., 272 N. Y. 221, 5 N. E. 2d 715. While the point was not discussed in the courts below, it is now urged that the objectives and provisions of the National Housing Act require us to hold that claims of the United States arising under it are not entitled to the priority awarded by § 3466. We are aware of no canon of statutory construction compelling us to hold that the word “first” in a 160 year old statute means “second” or “third,” unless Congress later has said so or implied it unmistakably.

Certainly, there is no provision in the National Housing Act expressly relinquishing the priority of the United States with respect to claims arising under it. At best, therefore, such an intention on the part of Congress must be found in some patent inconsistency between the purposes of the Housing Act and § 3466. The plain objective of the Housing Act was to stimulate the building trades and to increase employment. In order to induce banks and other lending institutions to get the program under way, Congress promised that the United States would make good up to 20% on the losses they might incur on such loans.

As between the Government and the lending institutions, it was clearly intended that the United States should bear the losses resulting from defaults. But beyond this we may not go. There is nothing to show a further intention that the United States should relinquish its priority as to claims against defaulting and insolvent borrowers whose notes it takes up from the lending institution pursuant to the insurance contract.

That is, the ultimate collection of bad loans was consigned to the United States rather than to the lending institutions, but the collecting power of the United States was neither abridged nor qualified. We are told, however, that the broad purposes of the Act would be thwarted if we failed to assume that Congress intended to surrender this priority. The reason advanced is that suppliers of goods and services would refuse to extend credit to those desiring to make property improvements if they knew that in the event of insolvency their claims would be subordinated to those of the United States.

The fatal weakness of this contention is that the Federal Housing Administration imposes an ironclad requirement that the proceeds of insured loans be used for no purpose other than the improvements described in the application for the loan. Indeed, lending institutions frequently pay the proceeds of the loan directly to the suppliers of goods and services rather than, to the property owner, and the practice has met with the enthusiastic approval of the Administration.

Consequently, the argument against the application of § 3466 is reduced to this: Private persons in general are reluctant to extend credit when they know that in the event of the borrower’s insolvency the claims of the United States will receive priority, and this circumstance is particularly undesirable in times of economic stress. In the first place, whatever may be the merits of the contention, it should be addressed to Congress and not to this Court. In the second place, the argument proves too much.

If it is sound as applied to this kind of a claim of the United States, it is equally sound as applied to all claims as to which the United States asserts priority under § 3466. Neither Cook County National Bank v. United States, 107 U. S. 445, nor United States v. Guaranty Trust Co., 280 U. S. 478, requires a different conclusion. In the former case, the United States was denied its § 3466 priority in connection with a claim against a national bank for the amount of certain funds of the United States deposited with it. The decision was based on two grounds.

First, the National Banking Act undertook to provide a complete system for the establishment and government of banks, and it included specific provisions concerning the distribution of the assets of insolvent banks which were plainly inconsistent with the granting of priority to general claims of the United States.

Second, the National Banking Act expressly authorized the Secretary of the Treasury to require national banks accepting deposits of federal funds to give satisfactory security; it was held to be fairly infer-able that Congress intended the United States to look to this provision rather than to § 3466 for protection. The claims which were denied priority in the Guaranty Trust case arose under Title II of the Transportation Act of 1920.

That Act provided for the funding of debts to the United States which the railroads had contracted during the period of wartime control, and also provided for new loans to the railroads.

In holding § 3466 inapplicable to the collection of these loans the Court emphasized that the basic purpose of the Act was to promote the general credit status of the railroads, that the railroads were required to furnish adequate security for the payment of both the old and new loans, and that the interest rate of 6% on one class of loans was “much greater than that which ordinarily accompanies even a business loan carrying such assurance of repayment as would have resulted from an application of the priority rule.” 280 U. S. at 486.

These factors persuaded the Court that Congress had intended to exclude these loans from the scope of § 3466. In the instant case, none of these circumstances is present. The National Housing Act contains no reference to the liquidation of estates of insolvent borrowers, and consequently no direct inconsistency with § 3466 is possible. The purpose of Title I was not the strengthening of the general credit of property owners, but the stimulation of the building trades by affording assurances to lending institutions in order to induce them to make loans for property improvements.

No security was required of the borrowers, and the interest charge was low. Only the plainest inconsistency would warrant our finding an implied exception to the operation of so clear a command as that of § 3466. We think such inconsistency is wholly wanting here.

Section 3466 is applicable to this proceeding, and it requires that the claim of the United States be first satisfied. Reversed. Mo. Rev.

Stat. (1929) § 1168, so far as pertinent, provides: “Hereafter when the property of any company, corporation, firm or person shall be seized upon by any process of any court of this state, or when their business shall be ... . put into the hands of a receiver or trustee, then in all such cases the debts owing to laborers or servants, which have accrued by reason of their labor or employment, to an amount not exceeding one hundred dollars to each employee, for work or labor performed within six months next preceding the seizure or transfer of such property, . . . shall be first paid in full; and if there be not sufficient to pay them in full, then the same shall be paid to them pro rata, after paying the costs.” U.

S. Rev. Stat. § 3466 (U. S.

C., Title 31, § 191) provides: “Whenever any person indebted to the United States is insolvent, or whenever the estate of any deceased debtor, in the hands of the executors or administrators, is insufficient to pay all the debts due from the deceased, the debts due to the United States shall be first satisfied; and the priority hereby established shall extend as well to eases in which a debtor, not having sufficient property to pay all his debts, makes a voluntary assignment thereof, or in which the estate and effects of an absconding, concealed, or absent debtor are attached by process of law, as to cases in which

an act of bankruptcy is committed.” Field v. United States, 9 Pet. 182, 200; United States v. Oklahoma, 261 U. S. 263; Barnett v. American Surety Co., 77 F. 2d 225; In re Dickson’s Estate, 197 Wash. 145, 154-155, 84 P. 2d 661. Cf. United States v. Summerlin, 310 U. S.

Section 64a of the Bankruptcy Act, so far as pertinent, provides: “The debts to have priority, in advance of the payment of dividends to creditors, and to be paid in full out of bankrupt estates, and the order of payment, shall be (1) . . . [costs of preserving the estate, etc.]; (2) wages, not to exceed $600 to each claimant, which have been earned within three months before the date of the commencement of the proceeding, due to workmen, servants, clerks, or traveling or city salesmen on salary or commission basis, whole or part time, whether or not selling exclusively for the bankrupt; (3) ... [certain expenses of creditors connected with the liquidation of the estate]; (4) taxes legally due and owing by the bankrupt to the United States or any State or any subdivision thereof . . .; and (5) debts owing to any person, including the United States, who by the laws of the United States is entitled to priority , . ,” Act of 1800, c. 19, § 62,2 Stat. 19; Act of 1841, c. 9, § 5,5 Stat. 441; Act of 1867, c. 176, § 28, 14 Stat.

Section 64 of the Bankruptcy Act of 1898 (30 Stat. 544) provided: “(

a) The court shall order the trustee to pay all taxes legally due and owing by the bankrupt to the United States, State, county, district, or municipality in advance of the payment of dividends to creditors, and upon filing the receipts of the proper public officers for such payment he shall be credited with the amount thereof . . . “(

b) The debts to have priority, except as herein provided, and to be paid in full out of bankrupt estates, and the order of payment shall be (1) the actual and necessary cost of preserving the estate subsequent to filing the petition; (2) the filing fees paid by creditors in involuntary cases; (3) . . . [the costs of administration]; (4) wages due to workmen, clerks, or servants which have been earned within three months*before the date of the commencement of proceedings, not to exceed three hundred dollars to each claimant; and (5) debts owing to any person who by the laws of the States or the United States is entitled to priority.” A similar contention with respect to § 57j of the Bankruptcy Act was rejected in Matter of Simpson, Inc., 258 App.

Div. 148, 15 N. Y. S. 2d 1021. 48 Stat. 1246, c.847, §2. The priority granted by § 3466 is, of course, no guaranty that the United States will be saved from loss.

In the instant case, for example, the assets available for distribution are so small that the United States will lose heavily even if its claim is first satisfied. “Modernization Credit Plan,” Bulletin No. 1 (Aug. 10, 1934) pp. 15,16-17; id. (Sept. 12, 1934 revision) p. 22; id. (July 15, 1935, revision) p. 19; id. (July 20,1936 revision) pp. 6-7; “Property Improvement Loans Under Title I” (Feb. 4, 1938) pp. 4, 23; id. (July 1, 1939 revision) p. 15; id. (March 15, 1940 revision) p. 10. “Modernization Credit Plan,” Bulletin No. 1 (Sept. 12,1934 revision) p. 29; id. (July 15,1935 revision) p. 15; “Property Improvement Loans Under Title I” (Feb. 4,1938) p. 33; id. (July 1, 1939 revision) p. 30; id. (March 15,1940 revision) regulation No.

VIII. Not until 1939, four years after the note in this case was executed, did the Federal Housing Administration even require the lending institutions to pay premiums for the insurance of Title I loans. 53 Stat. 805, c. 175, § 2. The income from these premiums was to be used primarily to meet operating expenses under Title I and secondarily to meet losses resulting from defaults.

In his report dated April 1, 1941, the Administrator estimated that for the fiscal year ending June 30, 1941, this income from premiums would prove sufficient to reimburse the United States for less than half its losses under Title I, and that $4,000,000 of public funds would be required to meet the balance. Report of the Federal Housing Administration for the year ending Dec. 31, 1940, p. 11.