"Particular corporations, which, among others, have been held not to come within any of the exceptions, and hence are entitled to institute voluntary proceedings, are membership corporations, formed for the purpose of furnishing recreation to its members; fraternal benefit societies or associations which are corporations within the Bankruptcy Act definition; and gas and electric companies."
In the case of In re Elmsford Country Club, D.C. March 12, 1931, 50 F.2d 238, in an opinion written by Judge Patterson of the Southern District of New York, the distinction was drawn between a voluntary and an involuntary bankruptcy proceeding, under the Act of July 1, 1898, as amended by the Act of May 27, 1926. In that case the court held that a membership corporation operating a golf club for the pleasure of its members was capable of being a voluntary bankrupt, but was not subject to involuntary proceedings in bankruptcy. In ruling that the country club could not be subjected to an involuntary proceeding in bankruptcy, the court stated (50 F.2d at page 239): "* * * for no one can doubt that the club might have filed a voluntary petition and thus been adjudged bankrupt."
And in making the order vacating the involuntary petition, the court stated: "The motion will accordingly be granted and the adjudication vacated. The club may, of course, file a voluntary petition."
In the case of In re Michigan Sanitarium & Benevolent Ass'n, D.C. Oct. 9, 1937, 20 F.Supp. 979, Judge Tuttle of the Eastern District of Michigan, S.D., in ruling that an "eleemosynary corporation", charitable and benevolent in character, and not operated for pecuniary gain, is not a "business corporation" amenable to the provisions of the Bankruptcy Act on involuntary petition, also emphasized the distinction between a voluntary bankruptcy proceeding and an involuntary bankruptcy proceeding. While the question involved in that case was as to whether or not the Association could be subjected to an involuntary proceeding, the court made the distinction between voluntary and involuntary proceedings, stating (20 F.Supp. at page 981):
"It is conceded by all that the debtor could invoke the provisions of the Bankruptcy Act proper (11 U.S.C.A. § 1 et seq.) on voluntary petition, and it is argued by the petitioners that the Association is likewise subject to said act against its will on involuntary petition as a 'business' corporation, within the meaning of section 4, subdivision b of the Bankruptcy Act (as amended 11 U.S.C.A. § 22); it being conceded that it is neither a 'moneyed' or 'commercial' corporation within the provisions of said section."
Again, on page 983 of 20 F.Supp., it was stated:
"Bankruptcy is a statutory proceeding, and if such an involuntary petition may be filed against an association of the character of Michigan Sanitarium & Benevolent Association, the right so to do must be found within the terms and provisions of the act. The court finds no such provision. Like a farmer and a laborer, such a corporation may file a voluntary petition, but like a farmer and a laborer, such association is exempt from involuntary proceedings under the provisions of the act." (Emphasis supplied.)
In the case of In re Carthage Lodge, No. 365, I.O.O.F., D.C. March 11, 1916, 230 F. 694, Judge Ray of the Northern District of New York discussed at considerable length the right of a fraternal organization similar in nature to that of the Consistory to file a voluntary petition in bankruptcy. In ruling that the Carthage Lodge could file a voluntary petition, Judge Ray also drew the distinction between voluntary and involuntary proceedings. Section 4, sub. a of the amended Bankruptcy Act is virtually identical in language with section 4, sub. a of the Bankruptcy Act under consideration in the Carthage Lodge decision. Said Judge Ray on page 698 of 230 F. in his opinion:
"It is clear, therefore, that any corporation or partnership is entitled to the benefits of the act, and may file a voluntary petition in bankruptcy, except a 'municipal, railroad, insurance or banking corporation.' The Bankruptcy Act of 1867 (Act March 2, 1867, c. 176, 14 Stat. 517), as to those entitled to the benefits of the act, was narrower than is the act of 1898, as amended in 1910, as that act of 1867 limited the benefits of the act in case of voluntary bankrupts to 'moneyed, business, or commercial corporations.' The corporations entitled to the benefits of the act of 1898 as voluntary bankrupts are not limited to moneyed, business, or commercial corporations. Municipal, railroad, insurance, and banking corporations only are excluded from the benefits of the act of 1898, as amended, as voluntary bankrupts. When we come to subdivision 'b' of section 4, we find that only moneyed, business, or commercial corporations, excepting therefrom municipal, railroad, insurance and banking corporations, may be proceeded against in involuntary bankruptcy."
In support of the motion to dismiss, counsel cited In re William McKinley Lodge No. 840, F. & A.M., D.C., 4 F.Supp. 280. However, that case dealt with an involuntary petition in bankruptcy. Similarly, In re Roumanian Workers Educational Association of America, 6 Cir., 108 F.2d 782, dealt with an involuntary proceeding, as did In re Lloyds of Texas, D.C., 43 F.2d 383. These cases are not applicable to the instant issue.
For the reasons stated, the petition to dismiss the voluntary petition in bankruptcy is denied.