We are unable to see any reason why, if this Act is constitutional, as applied to actions pending, it is not equally so as to judgments and executions. There is the same propriety for saying to the owner of a judgment, yoii shall not proceed upon it until you pay to the State the taxes you owe upon it, as there is in saying to a plaintiff in a pending suit, you shall not have a judgment until you pay the taxes.
Indeed, it seems to me there is less objection to the law as applied to judgments; no time is fixed. The plaintiff can proceed whenever he makes the affidavit. If he is not ready to make it to-day, if he cannot make it, it is in his power to qualify himself by paying the taxes and to make it whenever he gets ready.
As we have construed this law, to-wit: that it only denies the rights of the plaintiff to go on until he pays and swears he has paid the tax, we think the restraint nothing but the legitimate and proper exercise of the rights of the State. It impairs no contracts, it divests no rights; it simply says, “do your duty before you use the. State’s process to compel others to do their duty to you.”
Without doubt, a judgment is taxable property. Without doubt, under our laws, in force for many years, this debt owes to the State its burden, and it seems to us clear that it is in the power of the State to deny the use of its process to enforce it, until the burden is discharged.
Judgment reversed.
Lochrane, Chief Justice, concurred and Warner, Judge, dissented, but neither furnished any opinion.