merce, but an appropriate and legitimate exercise of the taxing power of the states." In all the cases cited on behalf of the petitioner, from Brown v. Maryland down, there was discrimination, and the discrimination was referred to as the obnoxious feature of the statute in question in the various cases. This is the distinction taken between that class of cases and those cited in this opinion; expressly taken in Welton v. J.'Iissouri, lOtto, 282; 3 Cent. Law Journal, 116; i1nd again in Cook v. Pennsylvania, 7 Otto, 573, as well as in other cases. The statute of Nevada makes no reference whatever to foreign goods from or the products of other states.. It simply imposes a license tax upon the occupation of all traveling merchants, agents, drummers, or other persons selling or offering to sell goods of any description without reference to when or where they were made. The act we think valid, and that the petitioner is not restrained in violation of the constitution or laws of the United States. It is therefore ordered that the petitioner be remanded to the custody of the proper officer, and the writ be discharged. HILLYER, J., concurred.
March 22, 1880. J
(District Oourt, D. New Jersey.
BANXRUPTCy-TA.'l:-REV. ST. § 5101.-A taxis nota debt provable in bankruptcy under section 5101 of thc Revised 8tatutes. SAME-8AME-REv. ST. § 5106.-Under the provisions of section 5106 ot the Hevised Statutes, no stay is authorized which the of the orderly methods for the collection of taxes during the pendeucy of bank. ruptcy proceedings.
Motion to vacate order. Leslie Lupton, for city of Rahway. Remington Vernam, for bankrupt. NIXON, D. J. The petitioner filed a voluntary petition for adjudication of bankruptcy on the thirty-first of August, 1878,
IN RE DURYEE.
and was duly adjudged a bankrupt. It appears, by his amended schedules, that the city of Rahway is an unsecured creditor of the bankrupt for $250, the amount of personal taxes due from the years 1870 to 1878, inclusive. The city oommenced a suit for the recovery of these taxes after· the petition in bankruptcy was filed, and the bankrupt applied for and obtained an order for an injunction restraining the suit pending the bankruptcy proceedings. This is a motion to vacate the order, on the ground that the claim of the city is not a debt provable in bankruptcy, within the meaning of the act. I think the objection is well taken, not only for the reasons assigned on the argument by the counsel for the city, but from the proviso of the fifth clause of section 5101 of the act. The order staying the suit was improvidently made, arising from the fact that the petition presented to the court for ohtaining it did not state upon its face or reveal to the court the nature of the action. It simply alleged that the city of Rahway, having a debt provable in bankruptcy against the bankrupt, was endeavoring by legal proceedings to enforce the payment of the claim. Under the provisions of section 5106 of the bankrupt act, it was the dnty of the court, upon such a representation, to require the creditor to suspend the further prosecution of the suit until the question of the debtor's discharge should be determined. But it appears upon this motion that the proceeding was for the collection of a tax, and it will be perceived, on an examination of the provisions of section 5106, that they do not apply to such a case. The section provides that "no creditor whose debt is provable shall be allowed to prosecute to final judgment any suit," etc. But all the authorities agree that a tax is not a debt. The supreme court, in The United States v. The Railroad 00. 17 Wall. 326, defines a tax to be "a charge,a pecuniary burden, for the support. of government." Wharton's definition is more comprehensive. He says it is "a portion of the national wealth applied to public use, granted and controlled by the representatives of the people." The supreme court of New
Jersey, (City of Carnden v, Allen, 2 Dutch. 398,) in holding that the payment of taxes could not be enforced by an action of debt, where the statute .provided any other method of recovery, say: "A tax, in its essential characteristics, is not a debt, nor in the nature of a debt. A tax is an impost levied by authority of government upon its citizens or subjects for the support of the state. It is not founded on contract or agreement. It operates in invitum." But, aside from this, section 5106 must be construed in connection with the provisions of section 5101. Although a. tax is not a debt, it is a provable claim, for the payment of which the bankrupt estate is liable, and the object of this section is to fix the relative priority of claims and to designate the order in which they shall be satisfied in full. It provides for the payment (1) of the fees and costs of the proceedings in bankruptcy; (2) for all debts due to the United States, and all taxes and assessments under the laws thereof; (3) for all debts due to the state in which the proceedings are pending, and all taxes and assessments made under state laws; (4) for the wages due to operatives and servants within the limitations specified; and (5) for all debts due to any persons who by the laws of the United States are entitled to priority; and then, as if to guard against any misconstruction or wrongful interpretation of these provisions, and especially against the 'construction contended for by the counsel of the petitioner in this case, the congress adds: "But nothing contained in this title shall interfere with the assessment and collection of taxes by the authority of the United States, or any state." The city of Rahway, in attempting to collect the personal taxes due from the bankrupt, is proceeding under the authority of the laws of the state of New Jersey, and is not to be restrained from so doing by anything contained in the sections quoted and commented on above, or by any other sections of the title. U. S. v. Herron, 20 Wall. 256. The highest duty of citizenship is the prompt payment of taxes, whether national, state, county or municipal, although it would often seem that no duty is so grudgingly performed. In the contemplation
IN BE NULL.
a.nd judgment of the framers of the bankrupt law, no citizen shall be presumed to sink so low or become so poor that he should be excused from contributing his share to the support Of the government, which continues. to protect his person after his property is gone; and, under its provisions, no stay is authorized which hinders the use of the orderly methods for the collection of taxes during the pendency of bankruptcy proceedings. The order heretofore granted is vacated, with costs.
April 12, 1880.)
(District OOUh't, W. D. Pen11l1Jlvania.
PARTITION-WIDOW'S DOWER-LmN.-In proceedings in partition a recog.
nizance or mortgage given for the principal of the widow's dower is but collateral; the lien is independent of such security, being created by the law itself. .
In Bankruptcy. Sur exceptions to register's report. ACHESON, J. The fund for distribution arises from the sale of certain land of the bankrupt, H. H. Null, in Westmoreland Jounty, Pennsylvania, which, under an order of this court, was sold, divested of liens. The register reports that the heirs of Henry Null, deceased, had the first lien against the land, and he appropriates thereto the sum of $1,485.75. To this appropriation Jesse Fries, a judgment creditor of the bankrupt, has filed exceptions. This land is part of the real estate of which the bankrupt's father, Henry Null, died seized, intestate. Subsequently, on September 11, 1849, the widow and heirs of the decedent made an amicable partition of his real estate by an instrument of writing, executed under their hands and seals, and duly recorded in Westmoreland county on June 2, 1851. By this partition the land now in question was allotted to H. H. Null, the bankrupt, at the agreed valuation of $5,209.50.