The F e d e r a l M u n i c i p a l D e b t A d j u s t m e n t A c t
A. M. HILLHOUSE Director of Research, Municipal Finance Oficers Association
Experience u n d e r the act too meager for definite conclu- sions to be drawn as to its usefulness
MORE than two years have elapsed since Sections 78-80 (popularly
known as the federal municipal debt adjustment act) were added to the na- tional bankruptcy laws, yet experience under this act has been so meager that both supporters and opponents can still advance arguments for and against the wisdom of this amendment with little fear of conclusive contradiction. Two years ago opponents warned that once this breach was made, the dikes pro- tecting municipal credit would be down. Today they point a knowing finger to the passage in April of H. R. 10490 and H. R. 6982. The former extends duration of the amendment until Janu- ary 1, 1940 (the original time of ex- piration was May 24, 1936) ; the latter liberalizes the act as applied to drain- age, irrigation, reclamation, and levee districts. Where a loan has been author- ized to such a special district by an agency of the United States govern- ment for the purpose of reducing or refinancing its indebtedness, the district may now file a petition without secur- ing the written acceptance of 30 per cent of its creditors. Furthermore, the percentage of creditors of such special districts which must accept before the debt adjustment plan can be confirmed has been reduced from 66 2/3 to 51 per cent. Nor has Congressman J. Mark Wilcox (Dem.), Florida, ceased his ef-
forts towards further liberalization of the act.
Supporters of the original Sumners- Wilcox bill, on thesother hand, can with pride and equal validity stress the fact that they were right in predicting that the act would not bring a great flood of petitions and debt scaling. They con- tended that the privilege of using bank- ruptcy machinery to effect an adjust- ment acceptable to a majority of credi- tors could not and would not be abused, and that only those taxing districts which were so heavily burdened with debt that no hope of payment in full remained would resort to this procedure. To date this contention has been borne out by the facts. Less than a hundred taxing districts out of approximately 3,000 in default have filed petitions. A check of several sources shows a total of eighty-four petitioners, scattered through twenty states.
Arizona: Maricopa County Munici- pal Water Conservation District No. 1 ;
Arkansas: Poinsett County Drain- age District No. 7, Chicot County Drainage District, Cypress Creek Drainage District, Little Red River Levee District No. 1 of White County, Grassy Lake and Tyronza Drainage District No. 9, its Subdivisions Nos. 3 and 4, and Subdivision No. 1 of the Carson Lake Drainage Improvement District;
19361 FEDERAL DEBT ADJUSTMENT ACT 329
California: City of Imperial; East Contra Costa, El Dorado, Glenn-Colusa, Imperial, Lindsay-Strathmore, Little- rock Creek, Merced, Naglee-Burke, Oroville-Wyandotte, Palo Verde, Para- dise, Santa Fe, South San Joaquin, Oakdale, Vista, Terre Bella, and Water- ford Irrigation Districts; Reclamation District No. 2064; and Pescadero Re- clamation District No. 2058;
Codorado: Otero Irrigation District; Florida: Clearwater, Belleair, Dune-
din, Lake Wales, Sarasota, and Safety Harbor; Wahneta Drainage District; Broward County Road and Bridge Dis- trict No. 3, and Special Tax School Districts Nos. 2, 3, 4, and 5 ;
Idaho: Boundary County Drainage District No. 8;
Illinois: Gillespie ; H e n d e r s o n County Drainage District No. 3;
Zowa: Green Island Drainage Dis- trict;
Kansas: Frontenac; Mississippi: Boyle; Lake Cormo-
rant Drainage District ; Missouri: Pemiscot County Drain-
age Districts Nos. 3, 6 and 8, Scott County Drainage District No. 10, and Little River Drainage District;
Nebraska: Ralston and Spencer; Whitney Irrigation District;
New Jersey: North Bergen Town- ship;
New Mexico: Antelope Irrigation District;
North Carolina: Benson and Row- land; Ohio: Brooklyn; Oklahoma: Wynona, Burbank, and
Covington ; Oregon: Medford Irrigation Dis-
trict; Tennessee: Sweetwater, Rogersville
and Etowah; Texas: Corpus Christi and Electra;
Cameron County Irrigation District No. 1 , Cameron County Water Improve- ment Districts Nos. 1 and 2, and Hi-
dalgo County Drainage District No. 1 and Road Districts Nos. 1 to 8 in- clusive.
Only twenty-three of these petition- ing districts are incorporated cities, villages, or towns. The largest is Corpus Christi, Texas, with a population of 27,741 (1930 census). The most im- portant urban district, however, to file petition is North Bergen Township, New Jersey. This township with 40,000 inhabitants is also the only petitioner in the east. The petitions of the Merced Irrigation District and North Bergen Township involve the largest amounts, approximately $1 6,000,000 principal in- debtedness in each case. Frontenac with a population of 2,000 is suffering from loss of population and a decline in its main industry-coal mining. Wynona, formerly a thriving oil field town of 3,500 is now a quiet community of 400 with a debt of more than $1,000 per capita. The little city of Imperial (about 2,000 in population) is head- quarters for the Imperial Irrigation District, also a petitioner in bankruptcy. Four states only-California, Texas, Florida and Arkansas-have more than five taxing districts in bankruptcy. Only two states-Kentucky and Michi- gan-with more than fifty taxing dis- tricts in default report no petitioners.
COURT ACTION NOT ALWAYS NECESSARY
There are several reasons why mu- nicipalities and other taxing districts have been slow to enter the bankruptcy courts. First, so drastic a step is not necessary in the great majority of de- fault cases because most municipalities will eventually be able to pay in full. Usually they are asking creditors to ac- cept only an extension of maturity dates, and a readjustment of interest rates so as to lessen the interest burden for a few years. Generally, unless the plan involves a scaling of principal, there
330 NATIONAL MUNICIPAL REVIEW t June is no necessity for going into the federal bankruptcy courts. Creditors are usual- ly willing to cooperate to the extent of postponing maturities and sometimes re- ducing interest. Second, some petitions have not yet been filed because the tax- ing districts have not been able to get the consent of the required percentage of creditors. The novelty of the proced- ure, the fact that precedents and rules have not been settled, and doubt its to the acts constitutionality have also re- tarded use of this procedure. A fourth reason is that the mere presence of the act has in some cases induced minority creditors to accede to the plans of the majority. It has not actually been neces- sary to go into bankruptcy. Knowledge that the municipality and the majority could wield the big stick has been sufficient. But an even more important reason is that municipalities have sensed that this step invites a stigma which will materially damage their credit in the future. Filing of a petition under Section 80 immediately becomes news to the investing world, and singles out the petitioner from the general rank and file of defaulters. Moreover, cities have been warned by investment bankers and others that this act should be used only as a last resort.
Failure by a majority of the states to pass statutes authorizing their mu- nicipalities to use the act seems to have
had little if any deterrent effect. Sec- tion 80 does not specifically require enabling state legislation. By its terms it purports to reach political subdi- visions, not only when the state con- sents, but also when the state has not exercised its power to require the ap- proval by any governmental agency of the state of the filing of any petition, or has no existing fiscal agency whose affirmative approval is required under the terms of the act. Nevertheless, fol- lowing an opinion from the United States Attorney-Generals office in which it was stated, among other things, that state legislation was necessary, more than a third of the states passed enabling statutes. Several of the statutes, however, are restrictive in nature. The Iowa and Oregon laws per- mit petitions only by special districts. In Louisiana, Michigan, North Caro- lina, Pennsylvania, and Oregon a state agency must first give its approval. In point of fact petitions have been filed in ten states which have no enabling acts.
With but two or three exceptions, the act has been used in an honest endeavor to effect a debt adjustment desired by the municipality and a majority of its creditors. The filing of a petition by New Orleans in April 1935 was but by-play in the feud between Mayor Walmsley and Senator Huey Long. Similarly petition by the village of Lemont, Ill., in May 1935 was but a
DEBT ADJUSTMENTS UNDER THE FEDERAL ACT Percentage
Name of Principal Payment of Reduction in Taxing District Involved Par Value Interest
Gillespie, 111. Belleair, Fla. Imperial Irr. Dist., Calif. Lindsay-Strathmore Irr. Dist., Calif. Merced Irr. Dist., Calif. Sante Fe Irr. Dist., Calif. Waterford Irr. Dist., Calif. Imperial, Calif. Poinsett County Arkansas Drainage Dist. Chicot County Arkansas Drainage Dist.
$ 236,000 1,049,000
7 5,600,000 705,087
50 100 100 59.978 51.5 53.55 48.82
100 28.879 31.1131
For 3 years Yes Yes Yes Yes Yes YeS YeS
19361 FEDERAL DEBT ADJUSTMENT ACT 33 1
tactical move. The village president and board having been cited for contempt in a state court sought to delay action therein by placing the village in bank- ruptcy. The petition was promptly dis- missed because the village had not se- cured the required consent of creditors.
The majority of petitions filed are still pending, but the character of the adjustments in a few cases where plans have been approved can be shown, (See table on previous page.)
Reconstruction Finance Corporation loans have provided the money for re- financing in most of the settlements of special districts, If a cash offer for a reduced principal is offered to the bond- holders, and 85 per cent or more ac- cept, the RFC disburses sufficient funds to pay such bondholders and takes pos- session of the district's outstanding bonds. A petition is filed solely to make the plan binding upon those who refuse the plan offered, usually a very small percentage of the original holders. Upon approval of the plan and comple- tion of the settlements, refunding bonds are issued to the RFC in exchange for the original bonds. The refunding is- sues bear interest at 4 per cent and mature over a period of thirty to thirty- five years, whereas the original bonds usually bore interest at 6 per cent.
Experience under the act has already demonstrated that the machinery has certain good points yet could be im- proved. A decided advantage to the petitioner is that the court, after ap- proval of the petition, usually halts all mandamus actions? For example, after petition by Sarasota, Florida, had been filed and approved, the court stayed fifteen suits then pending against the city.
After approving the petition the court
'Mandamus will also not issue from a state court while a suit is pending in the federal court. See Morris v. South Sun Joaquin Irrigation Dist. (1935) 2 Cal. (2d) 492, 41 P (2d) 537.
orders all creditors to appear and file their sworn claims on or before a cer- tain date. A date for hearing is like- wise set, generally sixty or ninety days after approval of the petition, and a short period after the date for filing claims, A special master may be ap- pointed to represent the court. On the day of hearing all parties are heard as to the merits of the proposed debt adT justment plan. Testimony is taken and evidence presented. Questions of law are submitted by briefs, and the court may allow additional time for presenta- tion of briefs on the part of objectors and for answer and rebuttal.
Altogether the procedure is too slow. Municipalities in default can locate the owners of their bonds only with great difficulty. Yet before a petition can be filed the requisite consent of 51 per cent of the creditors (or 30 per cent in the case of special districts except as provided by H. R. 6982) must be se- cured. This in itself requires a long delay.
A further delay has developed in Florida because of a provision in the state refunding law requiring that all bonds be validated in a state circuit court proceeding. After one town successfully put its plan through the federal court, its refunding operation was further delayed by an attack on the validity of the bonds in the validation proceedings, and an appeal to the state supreme court after all objections had been over- ruled. Several of the Texas cases were delayed after a federal district court in that state ruled in In re Cameron Colcn- t y Water Improvement District No. 1 (1934 S. D. Tex.) 9 Fed. Supp. 103, that the act was unconstitutional. Fur- ther proceedings were halted, awaiting action by the appeal court.
Only a guess can be made as to the extent to which the act will be used in the future. A greater number of peti-
332 NATIONAL MUNICIPAL REVIEW r. June tions by drainage, irrigation, reclama- tion and levee districts may be expect- ed within the year now that the Miller bill (H. R. 6982) has made the pro- cedure much easier for the petitioning district. The number of petitions by other municipalities will also likely in- crease. Some municipalities are just now, after many months of effort, securing the requisite consent for filing a petition. There have been an increasing number of petitions since January 1, 1936. Still other municipalities will decide to file petitions, now that the trail has been blazed. But there is a limit to the num- ber of taxing districts that will resort to this procedure. The larger cities have, for the most part, already adjusted their difficulties. There are scores of muni- cipalities that will never be able to pay their debts, but these are in the minori- ty.
The petition filed in March 1936 by North Bergen Township may raise some interesting questions of practice since under the states municipal receivership law the townships fiscal affairs are in the hands of the New Jersey Munici- pal Finance Commission. This will be the first time that state and federal legislation, both dealing with a munici- pality in default, have come into close contact. The relationship of the com- mission to the court, and the nature of the commissions control while the peti- tion is pending and after the plan is approved are important matters to those who see complementary state and fed- eral legislation as the most adequate solution to the problem of municipal insolvency.
Two approaches to the problem of joint federal and st...