(dissenting).
I think the court erred in allowing the trustee’s claim under petition No. 266 without findings of fact or conclusions of law and in effect holding that § 77, sub. c(12), 11 U.S.C.A. § 205, sub. c(12), is not controlling. This section is specifically made applicable to “trustees under indentures”, and a procedure with right of appeal is prescribed for determining the amount of such claims and for their allowance. The indenture in this instance creates a lien but does not fix its amount.
In my opinion the trustee should have proceeded under its petition No. 267. Even though it claims subsection c(12) is unconstitutional, if applied to its claim, it nevertheless should be required to present the facts in the prescribed administrative proceeding. It could then raise, and ultimately present for judicial review, any legal question which may arise. Anniston Mfg. Co. v. Davis, 301 U.S. 337, 57 S.Ct. 816, 81 L.Ed. 1143; Alabama Power Co. v. Ickes, 302 U.S. 464, 58 S.Ct. 300, 82 L.Ed. 374; Commonwealth of Massachusetts v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078; Wilshire Oil Co. v. United States, 295 U.S. 100, 55 S.Ct. 673, 79 L.Ed. 1329. It is not clear to me that a district court sitting as a court of bankruptcy has power in a bankruptcy proceeding to ignore the statute prescribing a means for determining the amount of unliquidated and disputed claims and to act upon such claims outside the statute.
Even if this court should hold that subsection c(12) is not applicable and that the court should properly allow claim No. 266, then the case should be remanded for findings of fact and conclusions of law by the bankruptcy court. See Kelso v. Maclaren, Trustee, 8 Cir., 122 F.2d 867, and Order 47 of General Orders in Bankruptcy, 11 U.S.C.A. following section 53, 305 U.S. 681, 702.