236 U.S.

Opinion of the Court.

time and place of delivery under said contract;

that his said claim having been disallowed and adjudicated not provable in bankruptcy, the said discharges of the defendants are no bar to the prosecution of this suit, and the plea of bankruptcy is not available to the defendants;" and he prays for judgment.

In support of the demurrer defendant Gray maintains: (1) The plaintiff sustained no legal injury. Before any breach of the contract an involuntary petition in bankruptcy, afterwards sustained, was commenced against the partnership and its members; the partnership was dissolved, the contract rendered impossible of performance and annulled by the law; and whatever loss resulted was damnum absque injuria. (2) If there ever was a valid claim defendant's discharge in bankruptcy acquitted it. (3) The matter was submitted to a competent court of bankruptcy with exclusive jurisdiction, which disallowed the demand; no appeal was taken; and the question became res judicata.

The plaintiff in error insists: That he suffered legal damage because the contract of purchase was not fully complied with. "Under the classification of the act, claims are either provable or not provable;" when of the former class they are dischargeable, when of the latter they are not dischargeable. His "claim had been adjudged by the bankruptcy court, to which it had been presented for proof, to be not provable," and therefore the discharge constitutes no bar to his right to recover against the defendant.

Section 2 of the Bankruptcy Law (July 1, 1898, c. 541, 30 Stat. 544) invests courts of bankruptcy with jurisdiction to "(2) allow claims, disallow claims, reconsider allowed or disallowed claims, and allow or disallow them against bankrupt estates; (6) bring in and substitute additional persons or parties in proceedings in bankruptcy when necessary for the complete determina

Opinion of the Court.

236 U. S.

tion of a matter in controversy; (7) cause the estates of bankrupts to be collected, reduced to money and distributed, and determine controversies in relation thereto, except as herein otherwise provided; (10) consider and confirm, modify or overrule, or return, with instructions for further proceedings, records and findings certified to them by referees; (15) make such orders, issue such process, and enter such judgments in addition to those specifically provided for as may be necessary for the enforcement of the provisions of this Act." A "discharge' shall mean the release of a bankrupt from all of his debts which are provable in bankruptcy, except such as are excepted by this Act." (§ 1.) "A discharge in bankruptcy shall release a bankrupt from all of his provable debts." (§ 17.) Debts of the bankrupt may be proved and allowed against his estate which are founded upon an open account, or upon a contract express or implied; and unliquidated claims may be liquidated in such manner as the court shall direct, and may thereafter be proved and allowed. (§ 63.)

A bankruptcy court in which an estate is being administered has full power to inquire into the validity of any alleged debt or obligation of the bankrupt upon which a demand or claim against the estate is based. This is essential to the performance of the duties imposed upon it. When an alleged debt or obligation is ascertained to be invalid-without lawful existence the claim based thereon is necessarily disallowed. A disallowed claim and a non-provable debt are not identical things; and a failure accurately to observe the distinction has led to confusion in argument.

The United States District Court, being of opinion that an implied condition in Lesser's contract terminated it when the involuntary bankruptcy proceeding was begun, held that the bankrupt incurred no obligation to pay damage by reason of the firm's failure fully to comply there

with. Accordingly the judgment in respect of the claim presented by plaintiff against the estate was that it be disallowed because without foundation-not that he had a non-provable debt.

The petition in the cause now under review was properly dismissed. If, as both the bankruptcy and state courts concluded, the contract was terminated by the involuntary bankruptcy proceeding no legal injury resulted. If, on the other hand, that view of the law was erroneous, then there was a breach and defendant Gray became liable for any resulting damage; but he was released therefrom by his discharge. In this state of the record we will not enter upon a consideration of the specific reason assigned by the state court for sustaining the demurrer. No effort was made by plaintiff in error to secure a review of the action of the bankruptcy court in the direct way prescribed by the statute and that result may not be obtained indirectly through the present proceeding. The judgment of the court below is

Affirmed.

LIEUTENANT COLONEL STEARNS v. BRIGADIER GENERAL WOOD.

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF OHIO.

No. 647. Argued December 18, 1914. Decided January 18, 1915.

The province of courts is to decide real controversies and not to discuss abstract propositions; and this court cannot be called upon to construe orders, acts of Congress and provisions of the Constitution for the information of persons whose rights are not directly affected or threatened, notwithstanding their laudable feeling of deep interest in the general subject.

Opinion of the Court.

236 U.S.

An officer of the National Guard whose personal rights are not directly violated or interfered with and whose present rank remains unchanged thereby cannot, in this court, question the validity and constitutionality of the General Order contained in Circular No. 8 issued by the Secretary of War pursuant to § 3 of the Military Law, act of January 21, 1903, c. 196, 32 Stat. 775, as amended by act of May 27, 1908, c. 204, 35 Stat. 399, relative to the organization, armament and discipline of the organized militia, and orders of the Adjutant General of Ohio with respect to the mobilization of the National Guard of that State and commanding that upon any declaration of war all furloughs be revoked and the officers and soldiers shall assemble and proceed wherever directed by the President of the United States, whether within or without the United States.

THE facts, which involve the jurisdiction of this court on a direct appeal from the District Court, are stated in the opinion.

Mr. Hubert J. Turney, with whom Mr. Nathan William MacChesnay and Mr. Don R. Sipe were on the brief, for appellee.

Mr. Harvey R. Keeler and Mr. Fred C. Geiger for appellant, submitted.

MR. JUSTICE MCREYNOLDS delivered the opinion of the court.

This is a direct appeal from the District Court which held that the original bill states no cause of action. It must be dismissed unless the case involves the construction or application of the Constitution of the United States, or the constitutionality of a Federal statute is fairly drawn in question.

The only serious attempt to show that appellant has a direct personal interest in the subject presented is found in the section of the bill which alleges that he is now serving as a Major in the Inspector General's Department of the

Ohio National Guard and is aggrieved because defendant Wood, the Adjutant General of the State, is about to put into full force and effect a general order issued by command of the Secretary of War and known as Circular No. 8, which, without right or authority, directs that the maximum rank of senior officers in complainant's department shall be a Lieutenant Colonel, and if this is done he will be prevented from attaining and serving in the higher rank permitted by the existing laws of Ohio.

Section 3 of the Military Law (act of January 21, 1903, c. 196, 32 Stat. 775, as amended by the act of May 27, 1908, c. 204, 35 Stat. 399), provides that on and after January 21, 1910, the organization, armament and discipline of the organized militia in the several States, Territories, and the District of Columbia, shall be the same as that which is now or may hereafter be prescribed for the regular army of the United States, subject in time of peace to such general exceptions as may be authorized by the Secretary of War. Exercising his discretion the Secretary of War directed the issuance of Circular No. 8, to become effective January 1, 1914. It is comprehensive in terms and prescribes general regulations concerning the members, officers and organization of the state militia. The validity of the order is denied.

The bill further avers that the Adjutant General of Ohio has issued an order with respect to the mobilization of the National Guard of that State wherein he commands that upon any declaration of war all furloughs shall be revoked and all the officers and soldiers shall assemble and proceed wherever directed by the President whether within or without the United States. The validity of this is also denied.

The brief in behalf of appellant states that "this action is a test case brought by an officer of the National Guard against the Adjutant General of Ohio, who are nominal complainant and respondent, and involves the construc