City of Waco v. Bryan

PARDEE, Circuit Judge. The city of Waco, county of McLennan, state of Texas, in the bankruptcy of Bart Moore, made proof of a debt for $503.72, taxes levied and legally due and owing by said bankrupt to said city, and asked for priority of payment and recognition of a lien. The referee rejected the demand on' the ground that [80] the property on which the taxes were levied never came into the hands of the trustee. On certificate, the judge of the District Court affirmed this-ruling, and ordered that “the claim of the city of Waco be, and it is hereby, denied, as to the right of priority of payment, or as to security on any property of the estate,” and on this ruling the case is brought here for review. It is not disputed by anything we find in the transcript that the said taxes are legally due and owing by the bankrupt to the city of Waco, irrespective of any lien for taxes on the property assessed, and arising under the law of Texas. The case, then, comes under the provisions of section 64a, Bankr. Daw July 1, 1898, c. 541, 30 Stat. 563 [U. S. Comp. St. 1901, p. 3447], as follows: ■ “The court shall order the trustee to pay all taxes legally due and owing by the bankrupt to the United States, state, county, district, or municipality in advance of the payment of dividends to creditors, and upon filing the receipts of the proper public officers for such payment he shall be credited with the amount thereof, and in case any question arises as to the amount or legality of any such tax the same shall be heard and determined by the court.” This section is perfectly plain, and seems to admit of very little, if any, construction. It is contended that it is inequitable for the bankrupt’s estate to be compelled to pay by priority taxes originally levied on property which does not come into the hands of the trustee. To this it is'-sufficient answer- to say that the priority to be given payment of claims against the bankrupt is within the control of the lawmaker, and is absolutely fixed by the statute, and the rule therein declared cannot be varied to meet ideas of -what equity and good conscience may require. From the foundation of the government, it has been’ the policy of the United States to exact priority in favor of the Unitéd. States in, all cases of insolvency. This policy is declared in section 3466 of the Revised Statutes [U. S. Comp. St. 1901, p. 2314], as-follows: “Priority Established; Whenever any person indebted to the United States is insolvent, or whenever the estate of any deceased debtor, in the hands of the executors of administrators, is insufficient to pay all the debts due from the deceased, the debts due to the United States shall be first satisfied; and the priority hereby established shall extend as well to cases in which a d.ebtor, not having sufficient property to pay all his debts, makes a voluntary assignment thereof, or in which the estate and effects of an absconding, concealed, or absent debtor are attached by process of law, as to cases in which an act of bankruptcy is committed.” Under this statute there seems to -be no case for the injection of equity, or the suggestion that, through pursuing some other party, and -marshaling liens upon some outside estate, the United States’ demands can be eventually satisfied. The sovereign cannot be hindered or embarrassed or postponed in* the collection of his revenues. This policy was recognized in all the bankruptcy laws heretofore passed. Section 62- of the bankruptcy act of April 4, 1800, c. 19, 2 Stat. 36, provides that' “nothing contained in this law shall in any manner- affect the right of preference to prior satisfaction,. of debts due the United' States.”'' 'Section 5 of the act'of August 19, 1841, c. 9, 5’Stat. [81] 444, gives priority to the United States “for all debts due by such bankrupt to the United States.” Section 28 of the act of March 3, 1867, c. 176, 14 Stat. 530, gives priority, first, “for the fees, costs and expenses of suit,” etc.; second, “for all debts due the United States and all taxes and assessments under the laws thereof”; third, “for all debts due to the state in which the proceedings in bankruptcy are pending, and all taxes and assessments made under the laws of such state.” The present bankruptcy law gives priority for all taxes legally due and owing by the bankrupt to the United States, the state, county, district, or municipality, in advance of the payment of dividends to creditors. In short, it puts taxes due the state, counties, and municipalities upon the same footing as taxes due the United States. On the plain construction of section 64a of the present law, and particularly in the light of past legislation on the subject, there is no room to hold that it makes any difference whatever, as to the right of priority, whether property on which taxes were assessed ever came into the hands of the trustee. The test is given in the statute: Are the taxes legally due and owing by the bankrupt to the United States, state, county, district, or municipality claiming the same? If yea, they are entitled to be paid in advance of the payment of dividends to creditors, for thus saith the ,law. As to the matter of a lien, which, it seems, was claimed by the city of Waco, the referee ruled correctly. If the property did not cóme into-the hands of the trustee, the court can allow no lien on it. The judgment of the District Court is reversed, and the cause is remanded, with instructions to order the trustee to pay the taxes legally due and owing by the bankrupt to the city of Waco in advance of the payment of dividends to creditors.