This is a case where appellant urges that sovereign immunity is not in the case — only a question of whether the government consented to be sued by filing a claim in bankruptcy. But this is mere semantics, for if the government by its action “consented” to be sued, it had waived its sovereign immunity, even though its sovereignty was not in-paired.

There is but one question involved in this case. Does a court of bankruptcy have jurisdiction to hear and determine a counterclaim for affirmative relief asserted by the trustee in bankruptcy against the United States arising out of the same transaction as the claim filed by the government in the bankruptcy proceedings? The Referee in Bankruptcy held that it did not have such jurisdiction, and a petition for review was denied by the District Court. The appeal here is timely and proper. A recital of facts seems unnecessary.

It is apparently conceded by both parties here that if the United States Government were not the party claimant, and a mere creditor had filed a claim against the bankrupt’s estate, then the bankruptcy court would have jurisdiction to enter a summary judgment against the claimant upon a counterclaim asserted by the trustee as an objection to the claim. In re Nathan, D.C.1951, 98 F. Supp. 686 ; 26 So.Cal.L.Rev. 167 (1952).

The government recognizes this general rule, but claims the doctrine of sovereign immunity overcomes the usual rule of law expressed in the Nathan case, prevents recovery, and requires a dismissal of the counterclaim, this being an “unconsented” claim against the government.

The government suggests that this rule of law respecting the sovereignty of the United States has been made clearly applicable to claims against the United States in summary bankruptcy proceedings by many cases, and particularly by United States v. United States Fidelity & Guaranty Co., 1940, 309 U.S. 506 , 60 S.Ct. 653 , 84 L.Ed. 894 , holding void for lack of jurisdiction the affirmative decree of a summary bankruptcy court on a trustee’s counterclaim against the United States.

Appellant replies that the Chandler Act Amendment of 1938 was enacted subsequent to the bankruptcy court judgment in the United States v. United States Fidelity case, supra; that the Second Circuit in United States v. Roth, 1948, 164 F.2d 575 , held that the 1938 amendments to the Bankruptcy Act repealed the ruling of the Supreme Court in the United States Fidelity & Guaranty Co. case in that while § 68, sub. a of the Bankruptcy Act ( 11 U.S.C.A. § 108 , sub. a) deals with set-offs and does not specifically name the United States (and hence there was no waiver of sovereignty with regard to set-offs), taxes owed to the United States are dealt with separately in § 64 sub. a; that before the 1938 Amendment, taxes could not be proved as claims and the court could only “order the trustee to pay all taxes legally due and owing by the bankrupt to the United States;” but that after the Amendment, taxes owed the United States were classed as “debts” and provable as any other claim.

Although the United States is a claimant for purposes of collecting taxes under the 1938 Amendment, and thus there has been enacted a waiver of its sovereign immunity in that respect, has there been a waiver of immunity with respect to other “claims" against the United States? Such was the intent of Congress, says appellant, and “a reading of the Bankruptcy Act,” and “particularly the provisions of § 57, demonstrates that Congress intended that the Government as a claimant should be upon exactly the same basis as any other claimant;” that “Section 68, sub. a, * * * permitting set-offs, must be construed in harmony with the other provisions of the Act,” and that “the absence of a specific reference to the United States in the set-off section can no longer be deemed significant.” United States v. Roth, supra, 164 F.2d at page 578 .

If we are to follow United States v. Roth reasoning, then we must agree

But to reverse here, we would be required to go one step further than does the Roth case. It will be remembered that in Roth, Judge Swan, on the question of affirmative relief against the government, states “whether the bankruptcy court could enter an affirmative judgment against the United States, if the bankrupt’s counterclaim had exceeded the Government’s tax claim, is not presented by this record and need not be considered.” (Emphasis added.) United States v. Roth, supra, 164 F.2d at page 578, note 7 .

The court then cites United States v. Shaw, 1940, 309 U.S. 495, 502 , 60 S.Ct. 659 , 84 L.Ed. 888 and United States v. Biggs, D.C.E.D. Ill.1946, 46 F.Supp. 8, 11 . The reason that issue was not determined in Roth was the holding in United States v. Shaw, which is, of course, binding on the Second Circuit as it is on us. And Shaw specifically holds:

United States v. Biggs, supra, examined the immunity problem from the standpoint of the Tucker and Miller Acts, and said:

Thus we prefer to distinguish United States v. Roth on its facts, and on those facts it did not pass upon, rather than on the government’s argument that the Chandler Act Amendment of 1938 changed § 64, sub. a (( 11 U.S.C.A. § 104 , sub. a) taxes became claims) and did not change § 68, sub. a ( 11 U.S.C.A. § 108 , sub. a). In the opinion of the second circuit, it did change the set-off provisions by including the United States as a “creditor” for certain purposes, though not for all. With this, we agree.

But appellant also relies heavily upon In re Ward, D.C.D.Colo.1955, 131 F.Supp. 387 . There an opinion and a supplemental opinion rendered by Referee Hil-liard were upheld by Chief Judge Knous. The latter does not discuss the law, being satisfied with the Referee’s reasoning. The Referee’s supplemental opinion took the position that § 23, sub. b of the Bankruptcy Act ( 11 U.S.C.A. § 46 , sub. b)

Referee Hilliard then pointed out that he had “assumed that the United States had consented to the jurisdiction, but this is now disputed;” that the government had failed to argue the matter in its briefs, as ordered; that

The Referee then held the government could consent, and had waived any right of objection:

The Referee cited authorities to the effect .that there can be waiver in an ordinary case where the government is not a party. He recited that the government raised the issue in the Ward matter, and that he had ordered the matter argued in the briefs, but it was not. From this he found a waiver, and that the assertion of lack of jurisdiction came too late.

Both these conclusions of Referee Hilliard are questionable. Lack of jurisdiction can always be raised — it never comes too late. United States v. United States Fidelity & Guaranty Co., supra, 309 U.S. at pages 513-514, 60 5. Ct. at pages 656-657. And on the facts recited, a waiver is, to say the least, questionable.

The cases cited by Referee Hilliard point out that the

citing MacDonald v. Plymouth County Trust Co., 1933, 286 U.S. 263 , 52 S.Ct. 505 , 76 L.Ed. 1093 .

In the ease now before us there was certainly no formal consent, and the facts detailed to us show no waiver on the part of the government, nor any failure to make objection. Thus neither Cline v. Kaplan, supra, nor MacDonald v. Plymouth County Trust Co., supra, is apposite.

In Honeyman v. Hughes, 9 Cir., 1946, 156 F.2d 27 , this Court held that one who makes no objection to an adjudication of his claim in a summary proceeding is not thereafter permitted to speculate on the outcome of the proceedings, and then, if he loses the decision, for the first time understandably protest the procedure. That was not the factual situation in In re Ward, nor was it here.

None of the other cases cited in In re Ward supports the “too late” theory, and none of the cases cited therein supports the theory that a balance may be struck and a judgment awarded against the claimant when the claimant is the government having sovereign immunity (to wit: Cline v. Kaplan, supra; Alexander v. Hillman, 1935, 296 U.S. 222 , 56 S.Ct. 204 , 80 L.Ed. 192 ; MacDonald v. Plymouth County Trust Co., supra; Columbia Foundry Co. v. Lochner, 4 Cir., 1949, 179 F.2d 630 , 14 A.L.R.2d 1349 ; Florance v. Kresge, 4 Cir., 1938, 93 F.2d 784 ).

The doctrine of sovereign immunity may be waning — it may not, as Mr. Justice Frankfurter stated in National City Bank of New York v. Republic of China, have been favored by the test of time. But it has existed for many years, is a “well settled rule” and ordinarily “an insuperable objection to allowance,” and until Congress says it does not exist, we are not prepared to strike it from the body of the law, or to ignore it.

Express statutory consent to suit is essential to avoid the claim of the sovereign. That consent may not be found by implication in statutory provisions that omit all reference to the sovereign. Cf. United States v. Sherwood, 1941, 312 U.S. 584 , 61 S.Ct. 767 , 85 L.Ed. 1058 . Consent given by one statute and not given in another raises a legitimate inference that such legislative amendment was by design, not by inadvertence. Cf. Johansen v. United States, 1952, 343 U.S. 427 , 72 S.Ct. 849 , 96 L.Ed. 1051 .

It is doubtful if any court could by interpretation of or implication from legislation alone, create a consent that was not specifically enunciated by the Congress. Only Congress has the power to grant jurisdiction over the sovereign.

Failing to find a specific statutory waiver, and having no power to find one by implication or interpretation, we are bound by a long line of cases to hold that an affirmative judgment against the United States cannot be entered on a counterclaim without specific statutory authorization for affirmative relief against the government on the counterclaim as such. United States v. United States Fidelity & Guaranty Co., supra; United States v. Shaw, supra; Nassau Smelting & Refining Works v. United States, 1924, 266 U.S. 101 , 45 S.Ct. 25 , 69 L.Ed. 190 ; United States v. Merchants Transfer & Storage Co., 9 Cir., 1944, 144 F.2d 324 ; In re Clayton Magazines, 2 Cir., 1935, 77 F.2d 852, 854 .

This does not mean that a party sued by the government may not recoup or set-off, United States v. United States Fidelity & Guaranty Co., supra, at 511, or that the government’s claim may not be contested, Gardner v. State of New Jersey, 1947, 329 U.S. 565 , 67 S.Ct. 467 , 91 L.Ed. 504 .

Nor is there merit to appellant’s position that having once filed a claim, the sovereign is in the same position as a private suitor. United States v. Shaw, supra, and cases cited therein; United States v. United States Fidelity & Guaranty Co., supra; see, also, Case v. Terrell, 1870, 11 Wall. 199 , 78 U.S. 199 , 20 L.Ed. 134 ; United States v. Eckford, 1867, 6 Wall. 484 , 73 U.S. 484 , 18 L.Ed. 920 . As already illustrated, affirmative recovery against the sovereign is not a corollary of the sovereign’s right to sue or present a claim for bankruptcy adjudication.

We agree with the reasoning of Judge Lindley of the Seventh Circuit in the case heavily relied upon by the government, In re Greenstreet, Inc., 1954, 209 F.2d 660 . Although that was a Tucker Act case, the specific question of consent under the Bankruptcy Act was considered. The court said:

The judgment is affirmed.

. Act of July 1, 1898, as amended, Chapter 541, Sec. 24, 25, 30 Stat. 553 , as amended. 11 U.S.C.A. §§ 47 , 48. . 52 Stat. 840 , 874. . 11 U.S.C.A. § 93 . . 11. U.S.C.A. § 108, sub. a. . 11 U.S.C. § 46 , sub. b reads as follows: “Suits by the receiver and the trustee shall be brought or prosecuted only in the courts where the bankrupt might have brought or prosecuted them if proceedings under this title had not been instituted, unless by consent of the defendant, except as provided in sections 96, 107, and 110 of this title. July 1, 1898, c. 541, § 23, 30 Stat. 552 , Feb. 5, 1903, c. 487, § 8, 32 Stat. 798 ; June 25, 1910, c. 412, § 7, 36 Stat. 840 ; May 27, 1926, c. 406, § 8, 44 Stat. 664 ; June 22, 1938, c. 575, § 1, 52 Stat. 854 .” . 1955, 348 U.S. 356 , 75 S.Ct. 423 , 99 L.Ed. 389 . . United States v. Roth, supra, 164 F.2d at page 577 .