(dissenting in part).
I concur in the majority opinion in all respects save one: I am constrained to dissent as to the conclusion of the majority to disallow any compensation to the conciliation commissioner except the nominal statutory fees. The District Judge appraised the value of the services of the conciliation commissioner and his appraisal is quoted in the majority opinion and characterized as a “just appraisal”. Admittedly, a strict interpretation of Sections 75, subs, b, s (4), 11 U.S.C.A. § 203, subs, b, s (4), might well result in the dis-allowance of any amounts to the commissioner other than those expressly provided for therein, and it would appear that the courts have so construed these statutes. Rancho San Carlos Inc., v. Greene, 9 Cir., 93 F.2d 338; In re Shindler, D.C.E.D. Wash., 38 F.Supp. 1021; In re Hargrove, 5 Cir., 96 F.2d 168. However, it is significant that in none of these cases was the court dealing with an estate which was more than adequate to pay all the claims in full, hence any additional fees allowed to the conciliation commissioners would have been at the expense of the creditors or the insolvent debtor. In the instant case, however, the allowance of these fees merely results in a reduction in the amount of surplus which -will ultimately be turned over to the solvent debtor whose actions during this extended litigation were largely responsible for the additional services rendered and for whose benefit they were principally designed.
It was not within the original contemplation of Congress that a solvent estate would be settled in the bankruptcy court, and no provision was made in the statute for the disposition of a surplus. Nevertheless, in the rare cases in which a surplus remained after the payment of the claims that had been proved, it was distributed to the bankrupt. In re Silk, 2 Cir., 55 F.2d 917; Burton Coal Co. v. Franklin Coal Co., 8 Cir., 67 F.2d 796. It was not until 1938 that it was provided by an amendment to Section 57, sub. n of the Act, 11 U.S.C.A. § 93, sub. n, that not only claims which had been allowed, but also claims which had not been filed in time, should be allowed out of the surplus if filed within such time as the court might fix. Johnson v. Norris, 5 Cir., 190 F. 459, 462; Hammer v. Tuffey, 2 Cir., 145 F.2d 447, 450.
Where a surplus exists, the reasons underlying the limitations on the amounts allowable to a conciliation commissioner lose their force. The sections dealing with the compensation of the commissioner are obviously designed to keep the cost of the proceeding to a minimum so as not to further burden the hard-pressed farmer or to diminish the assets which he does have at the expense of his creditors who normally receive less than the amount of their claims. Clearly, creditors who have been paid in full are not in any way affected regardless of what disposition is made of the funds in excess of the amount of their claims. Nor can it be seriously argued that Congress in its desire to relieve harassed farmers intended to give to a farmer-debtor who subsequently is found to be solvent the benefit of the extensive services of a conciliation commissioner for seven years at no appreciable cost.
I do not think that in this case the statute should be so construed as to deprive this conciliation commissioner of compensation which he has so justly earned, nor do I believe that such a construction is required. I would affirm the District Court’s award of compensation to the conciliation commissioner.