bankrupt may, pursuant to application to the court, be liquidated in such manner as it shall direct, and may thereafter be proved and allowed against the estate.” The result is to invest the court with a discretionary power that can be fitted to the needs of varying situations. Maynard v. Elliott, 283 U. S. 273. Cf. Foust v. ,

v Munson S. S. Lines, 299 U. S. 77, 83. A holding that a creditor is disabled from making proof in bankruptcy till a suit in equity against the shareholders has been brought to a decree would have unfortunate results. Today it is the bankrupt who is asserting the provable quality of such a claim in order to preserve for himself the benefit of a discharge. Tomorrow it may be a creditor who unless he is given that opportunity may lose his dividend from the assets and find his suit in equity illusory. In that predicament the malleable processes of courts of bankruptcy give assurance of a remedy that can be moulded and adapted to the needs of the occasion. Cunningham v. Commissioner of Banks, supra.

Liquidation being possible, the claim is not defeated though there was uncertainty as to its amount at the filing of the petition. Maynard v. Elliott, supra. Yet even the amount was certain, if we are to credit the defendant's statement. By this it appears that long before the bankruptcy the necessity for an assessment to the amount of the par value of the shares had become obvious to the liquidating agent and indeed to all concerned. The facts are far removed from those in Miller v. Irving Trust Co., 296 U. S. 256, where the claim had its origin in the covenants of a lease. For historical causes such covenants are sui generis (Manhattan Properties v. Irving Trust Co., 291 U. S. 320; Gardiner v. Butler & Co., 245 U. S. 603), but the analogy is still imperfect if that distinction be ignored. There the only cause of action belonging to the claimant was for a deficiency that was

dependent upon unpredictable events.? Here the progress of the liquidation had already brought about a deficiency too great to be corrected by any unexpected windfall. This at least is the situation as the petitioner describes it. What infusion of contingency will vitiate a claim is at best a question of degree (Maynard v. Elliott, supra, p. 278), though there is a leaning toward allowance in aid of the purpose of the statute to relieve the honest debtor. Williams v. U. S. Fidelity & G. Co., 236 U. S. 549, 554–555; Central Trust Co. v. Chicago Auditorium Assn., 240 U. S. 581, 591. To all this we add that the uncertainty, if there was any, as to the exact amount of the assessment was to be dispelled at the farthest by September 30, 1933, less than six months later, for obligations then unpaid were to be classified as losses. Cf. Bankruptcy Act, § 57n; 11 U.'S. C. § 93n. Upon the facts of this case the impediments to a prompt ascertainment of the liability of shareholders were unsubstantial, if not imaginary.

Other objections are made to the operation of the discharge, but they need not detain us long.

There is argument that a claim against a stockholder is not provable in bankruptcy for the reason that it is founded on a statutory liability not subject to discharge. Bankruptcy Act $ 63; 11 U.S.C. 103. True indeed it is that the liability is created by a statute, and not solely by agreement. McClaine v. Rankin, 197 U. S. 154, 159, 161; Christopher v. Norvell, 201 U. S. 216, 225, 226. No disclaimer by the stockholder would be effective to avoid it. Even so, the liability, created though it is by statute, is quasi-contractual in its origin and basis. Chisholm v. Gilmer, 299 U. S. 99, 102; Shriver v. Woodbine Bank, 285

?“Under the clause in question, it was, at the time the petition in bankruptcy was filed, uncertain, a mere matter of speculation, whether any liability ever would arise under it.” Miller v. Irving Trust Co., 296 U. S. 256, 258.

U.S. 467, 477; Coffin Brothers & Co. v. Bennett, 277 U. S. 29, 31; Bernheimer v. Converse, 206 U. S. 516, 529; Christopher v. Norvell, supra; McClaine v. Rankin, supra, p. 159; McDonald v. Thompson, 184 U, S. 71, 74. Cf. Erickson v. Richardson, supra. It is an incident affixed by law to the contract of membership between shareholder and bank. Ibid. A liability upon quasi-contract is one upon an “implied contract," and so provable in bankruptcy (Bankruptcy Act $ 63 (4); 11 U.S. C. $ 103 (4); Crawford v. Burke, 195 U. S. 176; Tindle v. Birkett, 205 U. S. 183; Davis v. Aetna Acceptance Co., 293 U. S. 328, 331), if the other conditions of allowance are found to be fulfilled.

Finally argument is possible that the discharge is ineffective against the creditors of the bank for the reason that only a single creditor of Union was listed in the schedules. This, however, is unimportant if the creditor so listed (the liquidating agent) was in fact the only creditor, as the petitioner insists it was. Cf. Longfield v. Minnesota Savings Bank, 95 Minn. 54; 103 N. W. 706. If in fact there were other creditors whose names have been omitted, the burden rests on the respondent to make proof of such omission. Hill v. Smith, 260 U. S. 592, 595. The conclusion may well follow, if the omission shall be proved, that as to any creditors not listed the discharge is without effect.

Whether the petitioner will be able to make good the allegations of his answer, amplified and explained by the supporting affidavits, is not to be predicted now. Enough for present purposes that there are issues to be tried.

The decree should be reversed and the cause remanded for further proceedings in accord with this opinion.

Reversed.

HIGHLAND FARMS DAIRY, INC., ET AL. V.

AGNEW ET AL.

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES

FOR THE EASTERN DISTRICT OF VIRGINIA,

No. 573. Argued March 8, 9, 1937.-Decided March 29, 1937.

a

1. The Virginia Milk and Cream Act created a Commission with power

to establish market areas, and to determine, after hearings, the need for regulation of milk and cream prices within each area and, if satisfied of the need, to fix prices accordingly. Held that the objection of unconstitutional delegation of legislative power has no basis under the Federal Constitution, and has been decided adversely as to the state Constitution by the highest court of the

State. P. 611. 2. How power shall be distributed by a State among its governmental

organs is commonly, if not always, a question for the State itself.

P. 612. 3. The federal guaranty to the States of a republican form of govern

ment, Const., Art. IV, § 4, is not involved in this case, and, in

any event, is an obligation of Congress, not of the Courts. Id. 4. A judgment by the highest court of a State as to the meaning and

effect of its own constitution is decisive and controlling. P. 613. 5. The validity of a provision in the above mentioned statute for

the cancellation of the prices established for a market if cancellation is requested by a majority of the producers and distributors in the area affected, need not be considered, because no exercise

of the power of cancellation has been threatened. P. 613. 6. A holding of invalidity as to this provision for cancellation would

not affect the rest of the statute because of the saving clause.

P. 614. 7. The price-fixing and licensing provisions of the Virginia Milk and

Cream Act do not apply to transactions in interstate commerce, notwithstanding the broad definition of a "distributor.” This view is confirmed by the administrative practice under it and by its declaration that operations in interstate commerce shall not be

The obvious purpose of the license is to provide the Commission and the members of the local boards with a record of the distributors and producers subject to the Act, as an aid to supervision and enforcement. It is not to be inferred that any one was intended to be excluded because of favor or caprice. An order refusing to issue a license, or suspending or revoking one, may be reviewed on

appeal to the Supreme Court of Appeals. 9. One who is required to take out a license will not be heard to

complain, in advance of application, that there is danger of refusal.

P. 616. 16 F. Supp. 575, affirmed.

APPEAL from a judgment of the District Court, of three judges, denying a permanent injunction and dismissing the bill in a suit to restrain enforcement of the Virginia Milk and Cream Act.

Messrs. Philip Rosenfeld and Lawrence Koenigsberger; with whom Messrs. Morris Simon and Eugene Young were on the brief, for appellants.

Mr. Edwin H. Gibson, Assistant Attorney General of Virgina, and Mr. John S. Barbour, with whom Mr. Abram P. Staples, Attorney General, was on the brief, for appellees.

MR. JUSTICE CARDOZO delivered. the opinion of the Court.

A statute of Virginia, known as the "Milk and Cream Act," is assailed by the appellants as invalid both under the Constitution of Virginia and under that of the United States.

The act is chapter 357 of the Laws of 1934. It recites the existence of demoralizing trade practices in the dairy industry, threatening to interrupt the supply of pure and wholesome milk for the inhabitants of the Commonwealth and producing an economic emergency so acute and destructive as to call for corrective measures. It establishes

130607°—37

39