
    The State, ex rel. Ellsworth, Exr., v. Mong, County Auditor, et al.
    (No. 25432
    Decided March 4, 1936.)
    
      Messrs. Morris S McVeigh, Messrs. Squire, Sanders S Dempsey, Mr. Robert F. Denison, Mr. W. Lowric Fleming, Mr. Otis B. Bosworth and Mr. John B. Dempsey, for relator.
    
      Mr. Herman E. Werner, prosecuting attorney, Mr. Robert Pflueger, Mr. Wade DeWoody, director of law, Mr. Nathan Koplm and Mr. H. A. Sullivan, for respondents.
   By the Court.

This action is an original one seeking a writ of mandamus commanding the Auditor of Summit county to issue a warrant upon the County Treasurer in the sum of $34,505.77 as a refund of overpaid inheritance taxes. All the material allegations of the petition are admitted in the answer, and the relator has filed a motion for judgment on the pleadings in his favor.

Defendants contend that Sections 5339 and 5348-12, General Code, which provide for such refund (called in the statutes a “refunder”) are in contravention of Article XII, Section 9 of the state Constitution, which provides that not less than fifty per centum of inheritance taxes that may be collected by the state shall be returned to the county, school district, city, village or township in which said inheritance tax originates, or to any of the same, as may be provided by law, and also in contravention of Article I, Sections 1 and 19, of the state Constitution, and of the Fourteenth Amendment to the federal Constitution, which guarantee the right of private property.

The intent of the inheritance tax law is that inheritance taxes shall be paid promptly with right of refund of such an amount thereof as may later lawfully appear to be overpaid. The tax is computed on the net balance and often after payment further deductions come to light which may be cared for -by refund.

Under the laws of Ohio one-half of the refund was chargeable to the state of Ohio and the remaining one-half to the village of Hudson. The portion chargeable to the state has actually been refunded. This action relates to the half chargeable to the village, decedent’s place of residence.

Nothing in the sections of the General Code referred to is in violation of these constitutional provisions as claimed. There is no vested right to inheritance taxes which have been paid and distributed to the state or a subdivision thereof, such as prevents a refund of payments in excess of those warranted by law.

' The relator is entitled to judgment on the pleadings, and a -writ of mandamus will be issued as prayed for.

Writ allowed.

Weygandt, C. J., Stephenson, Williams, Matthias, Day and Zimmerman, JJ., concur.

Jones, J., not participating.  