BREWER, PECKHAM and MOODY, JJ., dissenting.

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and comes within the spirit, if not the letter, of § 60, which provides that "a person shall be deemed to have given a preference if, being insolvent, he has, within four months before the filing of the petition made a transfer of any of his property, transfer will be to en

and the enforcement of such able any one of his creditors to obtain a greater percentage of his debt than any other of such creditors of the same class." The idea of bankruptcy is that the bankrupt is unable to pay his debts in full, and if the attorney has received payment in full he has received a greater percentage of his debt than any other creditor.

While § 60d is not in the bankruptcy act of 1867, obviously it was specially inserted in the present act for the purpose of making clear the liability of counsel receiving payment in advance. It is simply a declaration that an excessive prepayment to counsel employed with a view to bankruptcy proceedings is to be considered, so far as the excess is concerned, a preference and recoverable by the trustee in bankruptcy. And unless a contrary intent be clearly manifested the proceeding to recover that preference should be in the same way and by the same tribunals that have jurisdiction of any other proceeding to recover money or property given by way of preference. It would be giving an unreasonable extension to language to make it not simply a declaration of the right to recover, but also a limitation of the tribunal in which the recovery can be had or the amount due determined-a limitation not obtaining in respect to any other preference.

In In re Waukesha Water Company, 116 Fed. Rep. 1009, it was held by the District Court of the Eastern District of Wisconsin that "the bankrupt act of 1898 confers no power on a court of bankruptcy to summon before it by a rule to show cause third persons who are not parties to the record and who reside without the district and State, and are there served with the order, and under the general rules of law governing the Federal courts, in the absence of express authority, such service is ineffectual to confer jurisdiction in personam."

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BREWER, PECKHAM and MOODY, JJ., dissenting.

Again, it is suggested that § 60d provides for proceedings in the bankruptcy court-no vesting of jurisdiction in any other than that court-and it is said there is no provision for a plenary suit to recover the amount of the excessive prepayment and none for a jury. But by the bankrupt act of March 2, 1867, the general jurisdiction over bankruptcy proceedings was vested in the court in which they were commenced, and there was no special provision for ancillary proceedings in the courts of other districts, and yet it was decided that those ancillary proceedings might be held that seemed to be the necessary result of the general jurisdiction conferred and to be in harmony with the design and scope of the act. As said by Mr. Justice Bradley, in Lathrop, Assignee, v. Drake, 91 U. S. 516, 517, 518:

"Their jurisdiction is confined to their respective districts, it is true; but it extends to all matters and proceedings in bankruptcy without limit. When the act says that they shall have jurisdiction in their respective districts, it means that the jurisdiction is to be exercised in their respective districts. Proceedings ancillary to and in aid of the proceedings in bankruptcy may be necessary in other districts where the principal court cannot exercise jurisdiction; and it may be necessary for the assignee to institute suits in other districts for the recovery of assets of the bankrupt. That the courts of such other districts may exercise jurisdiction in such cases would seem to be the necessary result of the general jurisdiction conferred upon them, and is in harmony with the scope and design of the act."

For these reasons, thus outlined, I must dissent from the opinion and judgment of the court.

CITY OF ST. LOUIS v. UNITED RAILWAYS COMPANY.

SAME v. ST. LOUIS AND SUBURBAN RAILWAY

COMPANY.

SAME v. ST. LOUIS AND MERAMEC RIVER RAILROAD COMPANY.

APPEALS FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF MISSOURI.

Nos. 193, 194, 195. Argued March 20, 23, 1908.-Decided May 18, 1908.

While a State, or a municipal corporation acting under the authority of the State, may deprive itself by contract of its lawful power to impose certain taxes or license fees, such deprivation only follows the use of clear and unambiguous terms; any doubt in the interpretation of the alleged contract is fatal to the exemption.

The fact that a street railway company has agreed to pay for the use of the streets of a city for a given period does not, in the absence of unequivocal terms to that effect, create an inviolable contract within the meaning and protection of the contract clause of the Federal Constitution which will prevent the exaction of a license tax within the acknowledged power of the city. New Orleans City and Lake Railway Company v. New Orleans, 143 U. S. 192.

The ordinances of the city of St. Louis, granting rights of construction and operation to street railways involved in this case, do not contain any clearly expressed obligation on the part of the city.to surrender its right to impose further license or taxes upon street railway cars which is within the meaning and protection of the contract clause of the Federal Constitution.

THE facts are stated in the opinion.

Mr. William F. Woerner, with whom Mr. Charles W. Bates was on the brief, for appellant:

Under its charter, derived from the constitution of Missouri, art. IX, §§ 20-25, the city of St. Louis had the broad and specific power, in general, to enact ordinance 21,087 imposing a license tax on all street railway.cars operated within its limits, as well as to enact the prior ordinance thereby replaced which had fixed the amount at $25.00 per car, per annum. The power

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Argument for Appellant.

to tax as well as to license is conferred in express terms. Charter of St. Louis, art. III, § 26, cl. 5; Springfield v. Smith, 138 Missouri, 645, 654; Kansas City v. Corrigan, 18 Mo. App. 206; 27 Am. & Eng. Enc. Law (2d ed.), "Street Railways," p. 52; Wiggins Ferry Co. v. East St. Louis, 107 U. S. 365. See further on the general power of cities to impose license taxes in Missouri: St. Louis v. Weitzel, 130 Missouri, 600, 619; Aurora v. McGannon, 138 Missouri, 38, 45; St. Louis v. Green, 7 Mo. App. 468, 474, aff'd on this point in 70 Missouri, 562.

An examination of the numerous franchise or right-of-way ordinances to the predecessors of appellees, demonstrates that the conditions therein recited "in consideration" of which the grants were made, are conditions annexed under art. X of the city charter, and assumed by the street car companies in order to obtain the city's initial consent, necessary under the state constitution, and cannot be construed as an exercise of the power conferred in the city charter in art. III, § 26, cl. 5, to tax street cars, nor as an exemption from such taxes.

There can be no question as to the right or propriety of the city to impose just such terms and conditions before giving its consent as it chose to impose in the said right-of-way ordinances, to wit: payment of certain fixed stipulated sums, or percentage of gross receipts increasing as the franchise ages, paving and repair of space between the rails, rate of fare, time for completion of work, etc.; all of such provisions stand upon the same basis as to the city's power, but vary in particularity with each respective ordinance.

Whilst it is true in one sense that all Missouri corporations, including street railways, derive their franchises or right to exist originally from the State, acting through the General Assembly under general law, yet the rights-of-way conferred by the city upon street railroads are in effect equivalent to franchises, because unlike other corporations, under the Constitution, no street railroad can be granted the right "to construct and operate a street railroad within any city, town, village, or on any public highway without first acquiring the

Argument for Appellant.

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consent of the local authorities, nor can the franchise so granted be transferred without similar assent." Constitution of Missouri of 1875, art. XII, § 20. See also as to such power being equivalent to a franchise: Blair v. Chicago, 201 U. S. 400, loc. cit. 457-460; State ex rel. Cream City Ry. v. Hilbert, 72 Wisconsin, 184, loc. cit. 190.

And the charter of St. Louis also expressly provides that in granting the right-of-way or franchise to a street railway, the city as a consideration therefor, may impose a per capita tax on passengers transported or an annual tax on gross receipts." Charter, art. X, § 1.

In construing the ordinance of a city conferring upon a street railway company the authority to construct and operate a street railway, the right of the city to exact license taxes will not be denied unless such right has been expressly surrendered in the ordinance. Such grants are construed strictly against the corporation companies, and liberally in favor of the public; silence is negation, and doubt is fatal to the claim. There is no such surrender by a grant to operate, construct and maintain a street railway, though given upon compliance with certain conditions and payments. And when the contract ordinance between the city and the company does not in terms dispense with the payment of a license tax, the rights of a company are not impaired by a subsequent ordinance requiring such payment. Springfield v. Smith, 138 Missouri, 645, 655; Wyandotte v. Corrigan, 35 Kansas, 21; New Orleans City Ry. v. New Orleans, 143 U. S. 192; Railway Co. v. Philadelphia, 101 U. S. 528; Met. Street Ry. Co. v. New York, 199 U. S. 1, 37; Savannah Ry. v. Savannah, 198 U. S. 392, 398; Blair v. Chicago, 201 U. S. 400, 471; State ex rel. Cream City Ry. v. Hilbert, 72 Wisconsin, 184, 194; Newport &c. Ry. v. Newport, 100 Virginia, 157; New Orleans v. Orleans Ry. Co., 42 La. Ann. 4; New Orleans v. New Orleans Ry. Co., 40 La. Ann. 587; San Jose v. S. J. Railway, 53 California, 475, 481; State v. Herod, 29 Iowa, 123; Rochester Ry. v. Rochester, 205 U. S. 236, 248; Cleveland Electric Ry. v. Cleveland, 204 U. S. 116, 130.