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I agree with my predecessor in the main and perhaps the only point passed upon by him in his opinion; that is to say, I agree that the making of the compromise does not deprive the portion of the estate passing to the contestors thereunder of the character of inheritance and thus exempt it from the tax. It is clear in my mind, upon the authorities referred to by my predecessor in his opinion, which will be found at page 1444 of the annual report of this department for the year 1913, Vol. 2, that no part of the estate can become exempt from taxation solely by reason of the making of an agreement of this character. Such a conclusion affords a partial answer to the question submitted by you. It is certain that the tax must be collected in the case you submit-all parties to the agreement being collateral relatives—upon the entire estate except as affected by exemptions, and not merely upon that portion thereof which is to be paid or has been paid to the devisees and legatees under the will in pursuance of the agreement.
But there is another question which is material and must be answered in connection with your general query, upon which the opinion of my predecessor is not so satisfactory to me. Though the point was apparently not passed upon in the opinion, the implication from the authorities cited and the reasoning adopted by my predecessor in the opinion referred to is that the tax shall be computed upon the respective shares of the takers, under the agreement, as inheritances. This is the holding of the supreme court of Pennsylvania in the case of In re Peppers Estate, 159 Pa. St., 508, which has been followed in other states. The contrary doctrine is maintained by the supreme court of Massachusetts in the case of Baxter v. Treasurer and Receiver General, 209 Mass. 459, wherein it is held that under circumstances of this character, where the will is sustained, the property is to be regarded as having passed first to the devisees and legatees under the will, so that what ultimately becomes of it under the agreement is subsequent to the vesting of the inheritance and in fact is not an inheritance at all. Upon this theory the tax is to be based upon the respective shares as they would have pased under the will and the exemptions deducted in accordance therewith without making any allowance or deduction for or on account of the amounts paid to contestors. The difference between the two rules is therefore material as affecting the amount of the tax, as determined by the exemptions to be deducted. In a case in which the contestors were direct heirs the difference would be even greater, for in that event, under the Pennsylvania theory, their shares would be exempted entirely and there would be a corresponding reduction in the tax charged against the entire estate, while under the Massachusetts law, the fact that under the agreement and not under the will a part of the estate might go to a direct relative would be immaterial.
Upon very careful consideration I am inclined to prefer the reasoning of the Massachusetts court. As stated in Blakemore and Bancroft on Inheritance Tax Law, Section 106, "It would seem that the Massachusetts doctrine is preferable, both on principle and as a practical matter of policy. The other view is an open inducement to unscrupulous persons to make such collusive arrangement as may save their pocketbooks at the expense of their conscience."
The statute of Massachusetts is not materially different in phraseology from the statute of Ohio in respect to the question under consideration.
It is my conclusion therefore that under the circumstances described by you the tax should be computed upon the value of the several inheritances as determined by the will, deducting only the exemptions thereon and the costs, if any, paid out of the estate in connection with the litigation, as well as other costs of administration.
Where a Mayor of a Village Is Re-elected in November, 1915, but
Dies Prior to January 1, 1916, the President Pro Tem. of Council Becomes Mayor Upon the Death of the Former Mayor and Holds the Office Until January 1, 1918. (Sec. 4256, G. C.)
No. 1127—(Opinion Dated December 31, 1915.) Bureau of Inspection and Supervision of Public Offices, Depart
ment of Auditor of State, Columbus, Ohio.
Gentlemen: I have your letter of December 22nd, 1915, requesting my opinion as follows:
"The present mayor of a village, who has been re-elected to the position at the last November election, died on or about November 20, the president of council succeeding to the position of mayor and is now serving in said position.
“Question:—Whose duty will it be to call the incoming council to order on January i, next, and how shall the vacancy in the office of mayor be filled ?"
Sections 4255 and 4256 of the General Code contain the answers to your question, and are as follows:
“The mayor shall be elected for a term of two years, commencing on the first day of January, next after his election, and shall serve until his successor is elected and qualified. He shall be an elector of the corporation. He shall be the chief conservator of the peace within the corporation, and shall have the powers hereinafter conferred, perform the duties hereinafter imposed, and such other powers and duties as are provided by law. He shall be the president of the council, and shall preside at all regular and special meetings thereof, but shall have no vote except in case of a tie.
"Section 4256. When the mayor is absent from the village, or is unable for any cause to perform his duties, the president pro tem, of council shall be acting mayor. In case of the death, resignation, or removal of the mayor, the president pro tem. of council shall become the mayor and serve for the unexpired term and until the successor is elected and qualified."
By virtue of the last sentence in Section 4255, above quoted, the mayor of a village is the presiding officer of the council, and as such should preside at its regular and special meetings.
By the language in the last sentence of Section 4256 of the General Code, above quoted, upon the death, resignation or re moval of the mayor, the president pro tem. of council becomes the mayor and serves as such for the unexpired term and until a successor is elected and qualified.
Under the facts stated in your letter, the president pro tem. of council by virtue of his office because the mayor of the village upon the death of the elected mayor and succeeded to all the powers and authority of the office to as full an extent as though he had been regularly elected. By virtue of this same language in Section 4256 of the General Code, the president pro tem., having succeeded to the office of mayor, is entitled to hold this office until his successor is duly elected and qualified. Since the former mayor was re-elected to the office in November, 1915, and has since died, it follows that no new mayor can be elected until November, 1917. Therefore the incumbent of the office, viz., the former presidene pro tem. of council, will, under the statutes, hold the office of mayor until January 1, 1918.
The language of the sections of the General Code above quoted is, to my mind, clear and susceptible only of the interpretation above given to it.
For a further citation of authority and a discussion of what is meant by the term "until his successor is elected and qualified" I respectfully refer you to an opinion of my predecessor, Honorable Timothy S. Hogan, rendered March 14, 1912, found at page 1202 of Volume II, of the Annual Report of the Attorney General for 1912
Directly answering your question, therefore, I am of the opinion that it will be the duty of the present mayor, viz., the former president pro tem. of council, to call the incoming council to order on January 1, 1916, and that there will at that time be no vacancy in the office of mayor, but that the present mayor will hold office until January 1, 1918.
United States Bonds Included in an Inventory of an Estate Are to
be Considered in Determining the Amount of Collateral Inherjtance Tax to be paid.
No. 1131—(Opinion Dated December 31, 1915.) Honorable A. V. Donahey, Auditor of State, Columbus, Ohio.
Dear Sir: I am in receipt of your letter of December 21, 1915, submitting for my opinion the following question:
"Are United States government bonds which were included in an inventory filed in the probate court of a county taxable under the collateral inheritance tax law of this state?”
No property as such is taxable under the collateral inheritance tax law. The subject of the tax is the privilege of inheriting; that is, taking property by will or under the intestate laws of the state, or by deed or other instrument of conveyance intended to take effect at the death of the owner thereof. There are exemptions from the collateral inheritance tax, and it would be sufficient to state that none of them would include any part of an inheritance on the ground that the same is composed of United States bonds. It may, however, be stated also that none of the exemptions from the tax are based upon the character of the property transmitted, but upon the character of the taker or the purpose of the bequest.
The one serious question involved in your inquiry arises under the language of the first section of the inheritance tax law, G. C., Section 5331, as amended 103 0. L., 463. The section provides that:
“All property within the jurisdiction of this state, which pass by will or by the intestate laws of this state * to a person
* shall be liable to a tax of five per cent of its value above the sum of five hundred dollars."
The query is thereby raised as to whether United States bonds are "within the jurisdiction of this state,” within the meaning of this section. If the meaning of this phrase is to be determined by the analogy of the general property tax laws the answer must be in the negative, because it must be conceded that the state is with
out power to tax bonds of the United States as property unless with the consent of the United States evidenced by an act of congress. In my opinion, however, the meaning of the phrase in question may not be thus narrowed. I think the word “jurisdiction” implies rather the idea of territoriality than the notion of power, especially in view of the fact that it is not the property as such which is taxed but the privilege of inheritance; so that though specific property be sold to pay debts, or otherwise, and a residue merely passed to the inheritor, he is under this law taxed on his inheritance and not upon the property itself.
There can be no doubt that the state may tax the privilege of inheriting United States bonds as well as the privilege of inheriting any other property, though it might not tax the bonds themselves.
For all these reasons, as well as for the primary reason above suggested, and the language of the act, including as well that of the sections containing the machinery of the assessment of the tax as the exemption provision thereof which are consistent with such a conclusion, I advise that United States bonds included in the inventory of an estate are to be considered in determining the value of a taxable inheritance therein, under the collateral inheritance tax laws of this state.
The Provisions of Section 3353-1, General Code, Requiring a Person
Elected as Assessor to Give Bond Within Thirty Days After His Election are Mandatory, but Where Such Bond is Filed After Said Thirty Days, and the County Auditor has not Appointed Anyone to Fill Such Position, he may Accept Such Bond and Permit the Person Elected to Qualify.
No. 1102—(Opinion Dated December 16, 1915.) Hon. P. A. Saylor, Prosecuting Attorney, Eaton, Ohio.
Dear Sir: I have your letter of December 6, 1915, submitting the following inquiry:
"Quite a few of our assessors-elect have given their bonds since the second day of December, 1915. Shall the auditor refuse these bonds and declare the offices vacant and appoint others, or has he the discretion to accept these bonds and treat them as having been filed before the second day of December? The auditor has stated that he will appoint the parties elected, if he has to appoint them under Section 3353 General Code (105-106 Year Book at 252)."
Section 3353-1 G. C., being Section 22 of an act to provide