(dissenting)-

This is a 'bankruptcy proceeding instituted pursuant to the provisions of Section 75 of the Bankruptcy Act, 11 U.S.C.A. § 203 . The appellee made a proposal for an extension of time to pay its debts. The appellant presented and filed a claim for $150,000 with interest thereon at the rate of six percent per annum from the first day of October, 1937, secured by mortgages upon the real estate of appellee. After a number of hearings, at which objecting creditors appeared and were heard, the proposal was confirmed and approved by the court. After a hearing on appellant’s claim, and some requirements in relation thereto having been complied with, the claim was allowed. Thereafter appellee filed a petition for a reduction of the rate of interest on the claim, to which appellant filed objections upon the grounds that the petition does not state facts sufficient to warrant the granting of the relief prayed for and that the court was without authority, power, or jurisdiction to grant such relief. The court entered the following order: “The application of debtor for a reduction of interest on the Bogart claim, in the above entitled cause is now before the court for consideration. The briefs for and against the application have been carefully considered, and as a result, the court is now convinced that the application of debtor presents a proper case for allowance of a reduction of interest, and that the court has authority to entertain such request; consequently, in the opinion of the court, the interest rate on the above claim should be reduced to 4% per annum, and it is so ordered.”

The appeal is from this order.

From the transcript, the findings and decision of the District Court the following facts appear: •

Miller Land and Livestock Company, appellee here, was carrying on the operations of a large and valuable farm business. Becoming involved in financial difficulties, it sought relief under Section 75 of the Bankruptcy Act, 11 U.S.C.A. § 203 . This appellant, Frank Bogart, filed his claim in said proceedings, as a secured creditor and owner of several mortgages against certain lands owned by appellee.

Bogart’s claim is based on certain deeds of trust on lands owned by debtor, by it acquired from Edwin L. Dana and Fra M. Dana, his wife, who, prior to their transfer of the premises to debtor, had executed these deeds of trust to one Samuel McKennan on September 29, 1919, to secure four promissory notes, each for the sum of $50,000 with interest, payable Octo *775 ber 1, 1924. On October 11, 1919, said McKennan transferred said notes and mortgages to Bogart, but the instruments of transfer were not recorded until March, 1934. Notwithstanding these transfers made in 1919, McKennan, on October 20, 1932, more than eight years after the maturity of said notes and more than thirteen years after he had transferred this indebtedness to Bogart, for the purpose of renewing and extending the mortgages made affidavit that the sum of $150,000 was still due and unpaid.

Certain creditors first appeared and challenged the sufficiency of the petition for the administration of debtor’s property under Section 75. The court held that the petition was in proper form and that the petitioner was qualified under the governing statute, and that the petition should be filed and referred to the conciliation commissioner and the petitioner accorded relief under the Bankruptcy Act aforesaid, provided he complied with the provisions thereof. At a later hearing on the application of debtor for confirmation of the extension proposal certain creditors again objected. The court in its order, inter alia, said: “ * * * there can be no doubt that this essential fact of acceptance of debtor’s proposal as required by statute, a prerequisite to confirmation, has been established by evidence that is clear and convincing.”

Thereafter appellant, in lieu of any rentals, elected to accept payments of ten percent of the indebtedness to him as established by the approval of his claim as provided in the proposal of the debtor. A payment being overdue a few days, appellant secured an order requiring debtor to show cause why the proceedings should not be dismissed and appellant granted permission to enforce his claim by foreclosure. In the return to the show-cause order the debtor alleged payment of amount due, setting forth valid reasons as the cause of the delay. Upon the hearing it developed that by reason of a difference as to the date from which interest was to be calculated it was found that the amount which had been paid was not sufficient to fully discharge the ten-percent payment due, and debtor was directed to make good the amount. The request of appellant to dismiss or allow foreclosure proceedings was denied.

In his return to the show-cause order the debtor prayed that the interest on appellant’s claim be reduced from six percent to three and one-half percent. This application was not referred to in the above order entered by the court on April 7, 1941.

On April 29, 1941, appellant petitioned for another show-cause order alleging that the unpaid balance found due on April 7, 1941, had not been paid and again asked to be permitted to foreclose his mortgage. The debtor filed an answer to the show-cause application and also interposed a cross-petition. The answer set forth that the amount which appellant claimed to 'be the balance due was in excess of the amount actually due, again giving reasons for the delay in payment and asking for a reduction of the rate of interest. In this answer it is alleged:

*776 With the answer debtor also filed a cross-petition, again requesting a reduction of the rate of interest. In addition to other matters this cross-petition alleged the following facts, pertinent on this appeal:

That the court had approved and confirmed the proposal of debtor, which was only for an extension of time for the discharge of its obligations;

That in the proceedings Bogart had filed, and secured the approval of, his claim for $150,000, which was secured by mortgages. This debt originally was for $200,-000;

■ That since the said mortgage debt was created, debtor and its predecessors in interest have paid to Frank Bogart in various capacities or to his predecessors in interest approximately $220,000.00 in interest alone;

That pursuant to the proposal of debtor and the order confirming the same, the said Frank Bogart had elected to take ten percent of the debt as his annual payment, beginning on December 1, 1940; that on or about December 7, 1940, said creditor had petitioned the court to dismiss this proceedings and that it have permission to foreclose upon its security;

That on December 19, 1940, debtor paid to the said Frank Bogart $15,482.50 and the court denied the petition of said creditor ;

That the claim of the creditor herein is based upon a debt secured by a first real estate mortgage upon property that at the commencement of this proceedings was worth greatly in excess of the amount of the said mortgage thereon; that since said time, debtor to increase the value and productivity thereof in order to pay off the said Frank Bogart and the other creditors as soon as possible and to preserve to the petitioner its valuable equity in said property, has made extensive and valuable improvements of such real estate and has secured property, necessary and adequate equipment to increase the income therefrom; that it has been necessary to secure part of such equipment on credit;

That petitioner believes and therefore alleges that the said Frank Bogart has not been and is not acting in good faith toward petitioner and its other creditors in that his actions demonstrate that he would rather have the security he claims than the money due him; that by acquiring the security he would make a large unearned and unjust profit at the expense of debtor and its unsecured creditors and that in an effort to bring about such result he has maintained and contemplates maintaining a series of vexatious, harassing and unfounded objections, petitions, motions and other proceedings whereby he hinders debtor from refinancing, takes the time of its management and causes unnecessary expense to the debtor;

That considering the value of the security, the amount of the investment, the present money market and all the circumstances surrounding such investment, as well as the best interests of all of the parties, including the unsecured creditors of debtor who have claims of approximately $200,000, it is just, equitable, and right that the court should reduce the interest rate upon said claim from six percent to three and one-half percent per annum and that the proposal heretofore made be modified accordingly insofar as the claim of Frank Bogart is concerned; that such modification would not adversely affect any other creditor but would be of benefit to debtor and such creditors.

Upon the hearing of the application for reduction of the rate of interest on the claim appellant appeared and interposed objections to the granting of “such relief upon the grounds and for the reasons:

The court entered its order reducing the rate of interest to be paid during the pendency of the proceeding from six to four percent.

By his specifications of error appellant contends (1) that the court was without authority to entertain the application for a reduction of interest on his claim; (2) that the application did not present a proper case for such reduction; and (3) that the court erred in reducing the rate of interest.

For the purpose of considering the motions here presented all the allegations above set forth, taken from the answer and the cross-petition, relating to the reduction of interest on the claim, must be taken as true and correct.

Appellant insists that to construe the Bankruptcy Act as permitting a reduction of the amount of interest on this claim *777 during the pendency of the proceedings would be in violation of the Fifth Amendment to the Federal Constitution. In support of his position appellant cites: Coder v. Arts, 213 U.S. 223 , 29 S.Ct. 436 , 53 L.Ed. 772, 16 Ann. Cas. 1008; Sexton v. Dreyfus, 219 U.S. 339 , 31 S.Ct. 256 , 55 L.Ed. 244 ; Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555 , 55 S.Ct. 854 , 79 L.Ed. 1593 , 97 A.L.R. 1106 .

An analysis of the above cases would readily show that the facts involved and the legal questions there presented and determined differed from those in the case at bar. Such an effort would be much in the nature of an academic discussion, and to no purpose, as.all of the above decisions were rendered prior to the enactment of the amendment to the Bankruptcy Act, Section 203, sub. k, Title 11 U.S.C.A., which added the following clause “ * * * nothing herein, shall prevent the reduction of the future rate of interest on all debts of the debtor, whether secured or unsecured.”

In the case of Bartels v. John Hancock Mutual Life Ins. Co., 5 Cir., 100 F.2d 813 , affirmed 308 U.S. 180 , 60 S.Ct. 221 , 84 L.Ed. 176 , also cited by appellant, the farmer-debtor filed his application for relief under subsections a to r of Section 75 of the Act. After his proposals for composition or extension were denied, he filed an amended petition under subsection s, praying that he be adjudged a bankrupt. The District Court denied the application and dismissed the proceedings. An appeal was taken to the Circuit Court of Appeals, which reversed the District Court. Upon appeal to the Supreme Court the reversal was sustained. The question here involved was not in issue and the subsection of the act here under consideration was neither cited not discussed. Likewise, in Consolidated Rock Products Co. v. DuBois, 312 U.S. 510 , 61 S.Ct. 675 , 85 L.Ed. 982 , the statute here invoked was not cited nor discussed, the appeal being from an order confirming a plan of reorganization, which was held to be unfair and inequitable as permitting a dominating holding company to escape or reduce its liabilities ’by reliance upon self-serving contracts which had been imposed upon the subsidiaries. Under the complicated circumstances there set forth it was decided that bondholders were- entitled to full and absolute priority as against the holding company, its subsidiaries, and their stockholders as well.

The due process of law as required by this amendment must refer to that law of the land which derives its authority from the legislative power conferred upon Congress by the Constitution. As meeting this requirement we have here the Federal Constitution expressly granting to Congress the power to legislate in matters of bankruptcy and the exercise of that authority by the Congress. In considering appellant’s contention it must not be lost sight of, that this bankruptcy legislation is expressly authorized. Article I, section 8, clause 4, of the Federal Constitution vests Congress with the power “to establish * * * uniform Laws on the subject of Bankruptcies throughout the United States”. The amended subsection k of Section 203 of Title 11 U.S.C.A. — the pertinent part of which reads, “ * * * nothing herein shall prevent the reduction of the future rate of interest on all debts of the debtor, whether secured or unsecured”- — was strictly within the authority granted by the Constitution.

As far back as Hanover Nat’l Bank v. Moyses, 186 U.S. 181 , 22 S.Ct. 857 , 46 L.Ed. 1113 , the Supreme Court, in an erudite opinion by Chief Justice Fuller, discussed the subject of bankruptcies and the effect of the Constitution and laws of Congress relating thereto. From this decision we quote the following pertinent passage (pages 187, 188 of 186 U.S., page 860 of 22 S.Ct, 46 L.Ed. 1113):

The Circuit Court of Appeals for the Seventh Circuit in In re Prima Co., 88 F.2d 785, 788 , 116 A.L.R. 766 , answers the argument made here as follows:

Subdivision k of Section 75, 11 U.S.C.A. § 203 , expressly authorizes the action taken by the court here: " “ * * * nothing herein shall prevent the reduction of the future rate of interest on all debts of the debtor, whether secured or unsecured.”

The court in Van Schaick v. McCarthy. 10 Cir., 116 F.2d 987, 992 , said: “* * * While the Congress may not impair the obligation of contracts by laws acting directly and independently to that end, it has authority to enact legislation on the subject of bankruptcies which may operate collaterally or incidentally to impair or destroy the obligation of private contracts. * * *»

This court has indicated its approval of this view. We said: “The statute clearly empowers the court to approve a proposal altering the rights of secured creditors * * In re Los Angeles Lum. Prod. Co., 9 Cir., 100 F.2d 963, 966 , reversed on other grounds 308 U.S. 106 , 60 S.Ct. 1 , 84 L.Ed. 110 .

Again: “Appellant urges the court abused its discretion in dropping the rate of interest pending the administration and that 3% percent is so low as to be confiscatory. There is no merit in this contention * * Cohan v. Elder, 9 Cir., 112 F.2d 967, 970 .

While the case of Kuehner v. Irving Trust Co., 299 U.S. 445 , 57 S.Ct. 298 , 81 L.Ed. 340 , concerned the construction of a different section of the Bankruptcy Act, the reasoning of that case is persuasive here.' There under Section 77B, 11 U.S.C.A. § 207 , the District Court set a limit on a landlord’s claim under a twenty-year lease with more than ten years to run. The Supreme Court held that the limitation was not arbitrary and was not the taking of the landlord’s property without due process of law in violation of the Fifth Amendment.

Appellant presented his claim in these proceedings and engaged in litigation with respect thereto before the court. The court had jurisdiction of the subject matter and of the parties. The order of the court was authorized by the statute and the Constitution, and it in no way affects any interest on the claim which had accumulated prior to the institution of these proceedings in bankruptcy or prior to the filing of an allowance of appellant’s claim.

It is also important to have in mind that this reduction of interest is only effective during the period that the debtor estate is being administered by the court.

The order of the District Court should be affirmed.