This appeal has been here before, and it may be seen in our opinion in United States v. Division of Labor Law Enforcement, 9 Cir., 1953, 201 F.2d 857, 36 A.L. R.2d 1197, that we held an assignment to a private assignee for benefit of creditors under Section 1204 of the California Code of Civil Procedure1 does not prevail in favor of labor claims over claims of the United States by Rev.Stat. 3466.2 We reversed the district court and remanded the case, to hold accordingly.

The mandate of this court was filed and spread upon the records of the district court which then held not only that the priority of the United States was superior to the appellant's claim arising under Section 1204 of the California Code of Civil Procedure, supra, but that in addition the fees, expenses, disbursements and charges of the assignee were superior in entitlement to plaintiff's liens.

The Division of Labor Law Enforcement appealed from the judgment as to fees, et cetera. This court questioned its jurisdiction to hear the appeal, inasmuch as the United States was no longer an interested party to the suit, and upon the further ground that notice of appeal was filed more than thirty days after judgment.3

Supplemental briefs were filed and oral argument was heard on these points, and the appeal is now before us for decision.

A review of the statutes involved indicates that even though the claims of the United States were judicially settled prior to this appeal, the district court retained jurisdiction to hear the cause. Section 1340 of the Judicial Code, Title 28 U.S.C.A., provides with a minor exception for original jurisdiction over actions arising under the revenue law. Section 1346(a) (2) of Title 28 U.S.C.A. provides for original jurisdiction for certain actions not exceeding $10,000. Section 1441 provides for removal of actions from the state to federal courts. Subparagraph (c) of Section 1441 provides:

"Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matter not otherwise within its original jurisdiction." [Emphasis added.] § 1441(c) of Title 28 U.S.C.A.

This would seem to settle the point in favor of the court's jurisdiction. There is no reason to suppose that the district court did not properly exercise its discretion in retaining jurisdiction.

Appellee urges that the appeal should be dismissed by reason of being filed more than 30 days after judgment when the United States was no longer a party to the suit. (Appellee's earlier motion to this effect was denied by us.) In support of this contention appellee cites the case of Virginia Land Co. v. Miami Shipbuilding Corp., 5 Cir., 1953, 201 F.2d 506. Though superficially similar, this case is not applicable here, since a careful reading shows that the United States never had a claim against the appellant therein and joined it as party defendant against its wishes only at the order of the court. Such is not the case in the instant case. Since a real controversy initially existed between appellant, appellee, and the United States, the fact that the rights of the United States have now been satisfied does not change the fact that this action is one to which the United States is a party within the purview of Rule 73(a).4 Appellant's contention that satisfaction and withdrawal of the United States at some time during the proceedings, causes a change in the jurisdictional rules, is inconsistent with what we have said before and is well answered by the words of the first circuit in commenting upon an attempted narrow construction of Rule 73(a): "The short answer to this contention is that if Congress had intended its words to have the limited construction contended for we think it would, as it easily could, have used appropriate language to express that limited meaning. Having spoken generally we construe the words used as they read." Mercado v. United States, 1 Cir., 1950, 183 F.2d 486, 487.

The sole remaining question is whether under Section 1204, California Code of Civil Procedure, an assignment for benefit of creditors instanter creates in wage claimants of the assignor, a lien on the property assigned which is superior in entitlement to the expenses of administration and liquidation incurred by the assignee? An examination of the applicable authority indicates this question must be answered in the affirmative. The California Civil Code provides in respect to liens:

"§ 2872. Definition. A lien is a charge imposed in some mode other than by a transfer in trust upon specific property by which it is made security for the performance of an act." (Enacted 1872 as amended, Code./Am. 1877-78, c. 74, p. 88, § 1) West's Ann.Calif.Codes.

The rationale of our opinion and decision in United States v. Division of Labor Law Enforcement, 9 Cir., 1953, 201 F.2d 857, 36 A.L.R. 2d 1197, supra, is that no lien for wages could become effective over the United States government's declaration that its taxes must be satisfied out of the estate before any other debt is so satisfied. That of course the property must be in the estate and that to the extent that a completed and perfected lien was existent as to any property, that moiety of the property so existent was realistically not in the estate and therefore could not be resorted to for payment of the taxes.

That the wage claimants had no moiety of interest over that of the United States because the State could not by its ipse dixit set aside the plain declaration of the United States under its taxing power by merely declaring that a wage claim shall exist as a lien in the future when an assignment for the benefit of creditors is effected.

It follows that our former opinion and decision, so understood, did not and could not affect the completion and perfection of the lien as to all other claims. See People of State of Illinois ex rel. Gordon v. Campbell, 1946, 329 U.S. 362, 374, 375, 67 S. Ct. 340, 91 L. Ed. 348.

Appellant directs our attention to the closing provision of § 1204 which subordinates the liens of wage claimants to the payment of the current operating expenses of a receiver. We agree that the legislature, by granting such priority solely to receiverships to the exclusion of all other forms of liquidation proceedings, meant to restrict the priority exclusively to the class specifically named, and we so hold under the doctrine of "expressio unius est exclusio alterius."5

As appellant states, the reason for the exception in favor of receiverships is clear. There, the estate is in the hands of a court-appointed and supervised individual acting as an arm of the court. Such is not true of the common law assignee. No matter how salutary the practice of assignments for creditors, it must be conceded that as an individual engaged in private enterprise, the assignee is for practical purposes outside the control and supervision of the court.

The precise point involved in this appeal was determined in the leading California case of Bank of Visalia v. Dillonwood Lumber Co., 1905, 148 Cal. 18, 82 P. 374. In that case an assignment was made by the debtor corporation to one of the creditors as trustee for benefit of creditors. By the terms of the agreement the trustee was to carry on the business and pay off the indebtedness. In ultimately disposing of the case, it was found that the fund derived from the sale of corporate property would be inadequate to pay all the allowed claims, and the court allowed a priority to wage claimants, under § 1204, C.C.P., over the expenses incurred by the trustee in liquidation and administration of the assigned property. In conducting the business, the trustee engaged certain persons to perform labor or furnish necessary supplies; to these persons the court awarded next preferential payment. To the effect that such expenses are part of the assignee's cost of liquidation and administration, see Shull v. Fontanet Co-op Mining Ass'n, 1891, 128 Ind. 331, 26 N.E. 790, cited and relied upon by appellee.

In Div. of Labor Law Enforcement v. Plotnek, No. 601781, 24 C.C.H. Labor Cases, Para. 67,793, supra in footnote 5, the trial court stated: "The claims of plaintiff, Division of Labor Law Enforcement etc., which are secured by a lien under C.C.P. 1204, are next entitled to payment subordinate in priority to the claims of the United States, out of any and all funds of the defendant Plotnek which came into the hands of the trustees. The claims of the plaintiff are entitled to payment before the allowance to the trustees of any of their fees or expenses * * *." Cases cited by appellee in support of a position contrary to the above are distinguishable from our case in that the state statute in question gave wage claimants a priority rather than a lien,6 or expressly gave priority to assignees' expenses over wage claims,7 or the case involved a court-appointed receiver rather than a common law assignee for benefit of creditors.8

Appellee earnestly argues that a ruling in favor of appellant's position would be fatal to the accepted salutary business practice favoring assignments for the benefit of creditors since the risk of non-payment of fees and expenses would be immeasurably increased if labor claims be held to be entitled to a priority. No assignee for the benefit of creditors, it is argued, could administer the estate of the debtor even for the short span necessary for liquidation if such a "harsh" and "unconscionable" rule be established. We think appellee has overstated the harm, but even if not, we find no sufficient ground for holding otherwise. A trenchant statement in this regard is contained in In re Milwaukee Sheep & Wool Co. (Town of Emery v. Alm), 1925, 186 Wis. 320, 202 N.W. 693, 695:

"His [the common law assignee's] assumption of duty is voluntary. Before he evidences his consent he must determine from a reasonable aspect of the situation as it then appears whether a remuneration will accrue to him or not. He is the sole judge, under the circumstances, and must abide by the results, whether favorable to him or otherwise."

The judgment of the lower court should be modified to conform with this opinion.

Affirmed as modified.