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Sec. 27. (11 U.S.C. § 50.) Compromises
The receiver or trustee may, with the approval of the court, compromise any controversy arising in the administration of the estate upon such terms as he may deem for the best interest of the estate.
"Receiver" in sections 26 and 27 was added by the Chandler Act (1938). Sec. 28. (11 U.S.C. § 51.) Designation of Newspapers
The judges of courts of bankruptcy shall by order designate a newspaper published within their respective territorial districts, and in the county in which the bankrupt resides or the major part of his property is situated, in which notices and orders. which the court may direct to be published shall be inserted. Any court may in a particular case, for the convenience of parties in interest, designate some additional newspaper in which notices and orders in such case shall be published.
As Amended by the Chandler Act (1938). "The judges of" was required by the enlarged definition of “court" in section 1(9). "Required to be published by this Act," which followed "notices," was dropped.
Sec. 29. (11 U.S.C. § 52.) Repealed. June 25, 1948, ch. 645, § 21. Offenses
Section 29 was repealed by the adoption of the new Title 18, U.S.C., Crimes and Criminal Procedure, Act of June 25, 1948, P.L. 772, 62 Stat. 683, 865, effective September 1, 1948. Section 29 became sections 151 to 155 of Title 18, with minor changes, including a change in the limitation provisions. For these sections see page 301, post.
Sec. 30. (11 U.S.C. § 53.) Rules, Forms, and Orders
a. All necessary rules, forms, and orders as to procedure and for carrying this Act into force and effect shall be prescribed, and may be amended from time to time, by the Supreme Court of the United States.
Sec. 31. (11 U.S.C. § 54.) Computation of Time
Whenever time is enumerated by days in this Act, or in any proceeding thereunder the number of days shall be computed by excluding the first and including the last, unless the last fall on a Sunday or holiday, in which event the day last included shall be the next day thereafter which is not a Sunday or a holiday. As Amended by the Chandler Act (1938). "In bankruptcy" was replaced by "thereunder."
Sec. 32. (11 U.S.C. § 55.) Transfer of Cases
a. In the event petitions are filed by or against the same person or by or against different members of a partnership, in different courts of bankruptcy each of which has jurisdiction, the cases shall, by order of the court first acquiring jurisdiction, be trans
ferred to and consolidated in the court which can proceed with the same for the greatest convenience of parties in interest.
b. Where venue in any case filed under this Act is laid in the wrong court of bankruptcy, the judge may, in the interest of justice, upon timely and sufficient objection to venue being made, transfer the case to any other court of bankruptcy in which it could have been brought.
C. The judge may transfer any case under this Act to a court of bankruptcy in any other district, regardless of the location of the principal assets of the bankrupt, or his principal place of business, or his residence, if the interests of the parties will be best served by such transfer.
Subdivision a stands as Amended by the Chandler Act (1938). "By or" was inserted to cover voluntary petitions in two jurisdictions. "Court" in the fourth line was originally plural. "First acquiring" replaced "relinquishing," and "in the court" replaced "by the one of such courts."
Subdivisions b and c were added by the Act of July 7, 1952, P.L. 456, 82d Cong., 2d Sess., § 11.
OFFICERS, THEIR DUTIES AND COMPENSATION
Sec. 33. (11 U.S.C. § 61.) Creation of Two Offices
a. The offices of referee and trustee are hereby created.
Sec. 34. (11 U.S.C. § 62.) Appointment, Reappointment, and Removal of Referees
a. The judges of the several courts of bankruptcy shall appoint referees. Where there is more than one judge of a court of bankruptcy, or where the territory to be served by a referee includes territory in more than one judicial district, the appointment, whether an original appointment or a reappointment, shall be by the concurrence of a majority of all the judges of such court or of the courts of bankruptcy of such judicial districts, and where there is no such concurrence, then by the senior judge. Except as otherwise provided in section 37 of this Act, each appointment and reappointment shall be for a term of six years. Upon the expiration of his term, a referee in bankruptcy shall continue to perform the duties of his office until his successor is appointed and qualifies provided the filling of the vacancy has been authorized by the Conference as provided in subdivision b of section 43 of this Act.
The last sentence was added by amendment of May 16, 1951, P.L. 31, 82d Cong., 1st Sess. There seems to be some formal difficulty here, because section 43b does not provide for authorizing the filling of the vacancy until it has occurred, which seems to involve at least a theoretical interruption of the continuity of service.
b. Removal of a referee during the term for which he is appointed shall be only for incompetency, misconduct, or neglect of duty: Provided, however, That, in the case of a part-time referee, an additional cause for removal shall be that his services are not needed. Any cause for removal in respect of any referee coming to the knowledge of the Director shall be reported by him to the judge or judges of the judicial district or districts in which such referee serves, and a copy of such report shall at the same time be transmitted to the council and to the referee. Such judge or judges may, upon receipt of such report, or upon their own motion, remove the referee for any one or more of the above mentioned causes; where there is more than one judge, such removal shall be by a concurrence of a majority of the judges, and where there is no such concurrence, then by the council. Before any order of removal shall be entered, except in the case of a part-time referee where the cause for removal is that his services are not needed, a full specification of the
charges shall be furnished to the referee, and he shall be accorded by the removing judge or judges an opportunity to be heard on the charges.
P.L. No. 464, 79th Cong., 2d Sess. (June 28, 1946). Previously sections 34 (a) and (b) were respectively designated sections 34(1) and (2). Section 34 formerly read: "The judges of courts of bankruptcy shall, within the territorial limits of which they respectively have jurisdiction, (1) appoint referees, each for a term of two years and may, in their discretion, remove them because their services are not needed or for other cause; and (2) designate and from time to time change the limits of the districts of referees: Provided, That the jurisdiction of such referees in matters referred to them shall not be restricted to the districts so designated for them, but shall, unless otherwise provided in this Act, be coextensive with the territorial limits of the jurisdiction of the courts of bankruptcy appointing them."
The amendment thus extends the terms of referees from two to six years. The word "Reappointment" in the title of sec. 34 is not accurate, since the draft of the bill (H.R. 4160) was amended to remove the only paragraph relating to reappointment, but the word "Reappointment" was not removed from the title of the section.
This amendatory statute is sometimes herein referred to as the "Referees' Salary Act (1946)."
Sec. 35. (11 U.S.C. § 63.)
Qualifications of Referees
Individuals shall not be eligible to appointment as referees unless they are (1) competent to perform the duties of a referee in bankruptcy; (2) not holding any office of profit or emolument under the laws of the United States or of any State or subdivision thereof other than conciliation commissioner or special master under this Act: Provided, however, That part-time referees may be commissioners of deeds, United States commissioners, justices of the peace, masters in chancery, notaries public, retired officers and retired enlisted personnel of the Regular and Reserve components of the Army, Navy, Marine Corps, and Coast Guard, members of the National Guard of the United States and of the National Guard of a State, Territory, or the District of Columbia, except the National Guard disbursing officers who are on a full-time salary basis, or either conciliation commissioners or supervising conciliation commissioners but not both; (3) at the time when originally appointed not relatives of any of the judges of the courts of bankruptcy or of the justices or judges of the appellate courts of the districts wherein they may be appointed; (4) resident and have their offices within the judicial district of the court or one of the courts of bankruptcy under which they are to hold appointment: Provided, however, That where a referee shall be temporarily transferred or permanently appointed to another judicial district, residence or office in such other district shall not be requisite for eligibility; and (5) members in good standing at the bar of the district court of the United States in which they are first appointed or, if appointed to serve in territory within more than one judicial district, at the bar of one of such district courts:
Provided, however, That the requirement of membership at such bar shall not apply to referees holding office on the date when this amendatory Act takes effect.
As amended by the Referees' Salary Act (1946). This section as amended by the Chandler Act (1938) read: "Qualifications of Referees.-Individuals shall not be eligible to appointment as referees unless they are (1) competent to perform the duties of a referee in bankruptcy; (2) not holding any office of profit or emolument under the laws of the United States or of any State other than commissioners of deeds, justices of the peace, masters in chancery or notaries public; (3) not relatives of any of the judges of the courts of bankruptcy or of the justices or judges of the appellate courts of the districts wherein they may be appointed; (4) resident within the territorial limits of the court of bankrutcy and have their offices in the districts for which they are to be appointed; and (5) members in good standing at the bar of the district court of the United States in which they are appointed: Provided, however, That this requirement shall not apply to referees holding office on the date when this amendatory Act takes effect."
The last amendment thus elaborates the qualifications of referees, further restricting eligibility to hold other offices, modifying the residence and bar membership requirements to meet the case of a referee serving territory in more than one district as now permitted under section 37, while making several other changes.
Section 35(2) was amended by the Act of June 30, 1947, P.L. 143, 80th Cong., 61 Stat. 213, to include the enumerated military personnel.
(3) originally defined relatives in terms of "consanguinity or affinity within the third degree as determined by the common law," the definition of section 1(27) not being introduced until 1938
(4) originally read: "residents of, or have their offices in, the territorial districts for which they are to be appointed." The Chandler Act first put the residence and office requirements in the conjunctive. This change, being in the direction of localized patronage, is detrimental.
(5) requirement of bar membership was introduced by the Chandler Act. Presumably it applies to referees first appointed on and after Sept. 22, 1938, although the further amendment in 1946 might seem literally to move the exemption date correspondingly forward.
Sec. 36. (11 U.S.C. § 64.) Oaths of Office of Referees
a. Referees shall take the same oath of office as that prescribed for judges of the United States courts.
Sec. 37. (11 U.S.C. § 65.) Number and Territories of Referees a. The Director shall recommend to the district judges, the councils and the conference the number of referees to hold appointment and the territory which each shall serve, after he has made a careful study of conditions throughout the country as a whole, and of local conditions, including the estimated amount of funds available for salaries, the areas and the populations to be served, the transportation and communication facilities, the previous types and amount of business under this Act in such areas and where such business is centered, the existing personnel, and any other material factors. The territory of a referee may,