
    No. 31,771
    The State of Kansas, ex rel. Roland Boynton, Attorney-general, Plaintiff, v. John F. Millhaubt, George Rogers and Herman Hill, as the Board of County Commissioners of the County of Sedgwick, Orville Bell, County Clerk, and R. M. McKee, County Treasurer, Defendants.
    
    (34 P. 2d 577.)
    Opinion filed July 7, 1934.
    
      Roland Boynton, attorney-general, W. C. Ralston, assistant attorney-general, L. A. Hasty, L. P. Brooks and Martin P. Shearer, all of Wichita, for the plaintiff.
    
      John W. Wood, of Wichita, for the defendants.
   The opinion of the court was delivered by

Smith, J.:

This is an original proceeding in mandamus by which the state seeks to require the county officials of Sedgwick county to repay the estate of Margaret Schindler certain taxes, and to strike the property of the estate of Margaret Schindler from the tax rolls of the county.

The theory of plaintiff is that Margaret Schindler died intestate and without heirs. The state claims that immediately on her death the title to the real estate vested in the state and hence cannot be taxed.

This question was settled adversely to the claims of the state in the case of McVeigh et al. v. First Trust Co., ante, p. 79, this day decided. Under the rule announced in syllabus 1 of the opinion in that action the writ is denied.

Harvey, J.

(concurring specially): Since our constitution (art. 6, § 3) provides, “The proceeds of . . . all estates of persons dying without heir or will . . .” shall be the common property of the state and a part of its perpetual school fund, and since our statutes (R. S. 22-933 to 22-935) provide for converting the real property of such a decedent into cash which is to be paid into the state school fund, and since the right of the state to sell such property may be lost, if not exercised in twenty-five years (R. S. 67-238), I am inclined to the view that neither our constitution nor our statutes contemplate that the corpus of the property of one who dies without heir or will shall be taken from the tax roll, or relieved from the payment of taxes.  