¶1The following opinion was filed April 17, 1928:
¶2(dissenting). While not formally dissenting in the two companion cases, I wish to herein express myself on propositions involved in all three.
¶3I cannot agree with either of two main propositions asserted as the basis for the majority opinion, namely, that there was a voluntary payment of the amounts sought to be recovered by the individual petitioners, or that the original determination by the county court in the hearing on inheritance was so binding and conclusive that it could not thereafter be changed.
¶4The executors of the estate, on behalf of the estate, and presumably on behalf of the heirs of Mr. Cudahy, the petitioners here, paid over to the county treasurer within the year following Mr. Cudahy’s death some $222,000 as a tender of inheritance tax, accompanying such tender with the statement that the same was made under protest and not voluntarily. Quite plainly, however, whether with or without any formal protest, such a tender should be held a voluntary tender only to the extent of any lawful tax that might be assessed, not as a voluntary tender or payment of amounts that the court had no lawful right to thereafter declare, as was done here, should be withheld from such tender.
¶5In May, 1919, and just prior to Mr. Cudahy’s death, this court, in Estate of Ebeling, 169 Wis. 432, 172 N. W. 734, held that the 1913 amendment to sec. 72.01 (3), Stats., pro- . viding that a gift made within six years of death shall be deemed to have been made in contemplation of death, established a conclusive presumption of fact and not a mere presumption of evidence, and also held (p. 437) as to such *253amendment, that whether such gifts were of “a material part of the estate of the donor was a judicial question.”
¶6Upon the hearing in the matter of the inheritance tax the county court held, upon such statute, buttressed as it was by such decision, that the amounts here involved, being upon the several gifts made to the individual petitioners, were a part of the estate for the purposes of inheritance tax even though each one of the petitioners received no title to such gift by reason of the death, but had unquestioned title thereto long prior to such death.
¶7Such advance tender being permitted, if not, strictly speaking, invited by the state, under sec. 72.08 (3), and which was not made directly by or on behalf of the petitioners as individuals but by and on behalf of the estate, creates a situation manifestly distinguishable from one where a precise and acknowledged amount is tendered as a discharge from a recognized liability, and such material distinction ought not to be overlooked. The crucial point in this situation arose, therefore, not when the tender was made, but when, pursuant to the county court’s order, there was withheld from that deposit the respective sums charged for an inheritance tax as against the petitioners whose unchallenged title to this gift was not dependent upon the death. If, as a matter of ultimate fact, the gifts here in question were not lawfully subject to assessment for inheritance tax and because thereof not to be treated as a part of the estate of the deceased, then there was a want of power in the county court to determine and adjudge as it did. Its judgment so attempting should be held void and as a nullity. Western P. & M. Co. v. American M. S. Co. 175 Wis. 493, 496, 185 N. W. 535.
¶8No claim is or was made that the several gifts were or are to be considered as part of the estate other than solely for inheritance tax purposes. The statute itself, sec. 72.05 (1), declares that such taxes shall be and remain a lien upon the property transferred until paid, and the person to whom the *254property is transferred, and the administrators, executors, and trustees of every estate so transferred, shall be personally liable for such taxes until payment. It is thereby plainly declared that the inheritance tax is considered as a charge against the person to whom the gift is made, so that he is thereby expressly recognized as an individual debtor for such tax as well as giving the additional security against the estate itself which is then in process of probate:
¶9Whether we consider the action of the county court in its determination as to assessments for inheritance tax an administrative or a judicial function, a question about which there is much room for debate under our decisions, in neither aspect has such county court, nor does the statute attempt to give it, jurisdiction or power to assess an inheritance tax against a donee of a valid gift inter vivos; it is only given such power if as a fact it is, or because of the statute it can be considered, a gift causa mortis. If, therefore, the fact of its being causa mortis is wanting, then the county court has, and can claim to have, no jurisdiction over such transfer or over the donee, any more than would its attempted jurisdiction on the presumption of a death confer jurisdiction to administer the property of one alive. Melia v. Simmons, 45 Wis. 334, 337; Scott v. McNeal, 154 U. S. 34, 43, 49, 14 Sup. Ct. 1108. Mere assumption of jurisdiction, the necessary facts being wanting, never creates a conclusive presumption of jurisdiction. The gifts here involved, made bona fide and absolute, so far at least as any and all questions between the estate of Mr. Cudahy and the donees are concerned, vested absolute title in the donees, and the county court can no more take such title away from them nor administer the property conveyed by such gifts as part of the estate than it could in a case where it assumed jurisdiction over either real or personal property not belonging to Mr. Cudahy, but which he might have erroneously considered his *255and specifically so mentioned in his will, and which was subsequently recited in the inventory and specifically disposed of by final decree; as to such property I take it there could be no question but that the county court might thereafter, and before the bar of some statute of repose of title intervened, be required to clear, by expunging from its records, that which might otherwise seem a cloud upon the title to such real or personal property belonging, as a matter of fact, to some one else than Mr. Cudahy; there being no established method here, as in Massachusetts, for distribution of the property of persons presumed, for lapse of time, to be dead, as in Blinn v. Nelson, 222 U. S. 1, 32 Sup. Ct. 1.
¶10That mere passage of time creates no barrier as against the power to exercise such expunging process upon its own records by the county court, whose power in that regard is recognized as distinct from that possessed ordinarily by other courts, is well established. Guardianship of Reeve, 176 Wis. 579, 590, 186 N. W. 736; Waters v. Stickney, 12 Allen (94 Mass.) 15; Fidelity & Casualty Co. v. Withington, 229 Mass. 537, 540, 118 N. E. 902; Jones v. Jones, 223 Mass. 540, 541, 112 N. E. 224; Cousens v. Advent Church, 93 Me. 292, 45 Atl. 43; Merrill Trust Co. v. Hartford, 104 Me. 566, 572, 72 Atl. 745.
¶11I think the situation here is analogous with the want of power or jurisdiction to assess an inheritance tax on the transfer of stock of a nonresident decedent in a corporation organized elsewhere but doing business in this state. Estate of Shepard, 184 Wis. 88, 197 N. W. 344; Rhode Island Hospital Trust Co. v. Doughton, 270 U. S. 69, 83, 46 Sup. Ct. 256; Colorado v. Harbeck, 232 N. Y. 71, 82, 133 N. E. 357.
¶12The fundamental proposition here presented is: Whether, where as here the state through its agencies has taken from the individual petitioners certain money belonging to them," *256because, and solely because, of the assertion by state officials under a claimed statutory right, supported as it was by an express ruling of this court, and which, so long as the two so stood, were binding upon the state officials and the citizens, and thereafter, by a higher authority than exists in this state, and an irresistible one, it has been declared that such statute, so solely and entirely relied upon in the taking of these funds, was unlawful because unconstitutional, and therefore void under the accepted doctrine that an unconstitutional law is no law, — such ruling should not be now as fully accepted by the state and followed to its just and logical end, as was the prior ruling to the contrary by this court then accepted by the petitioners. Especially is this so when any application to change the ruling of the county court by review or appeal here would have been a vain and useless thing after the decision by this court of the Ebeling Case, supra. See on this point Montana Nat. Bank v. Yellowstone County (U. S.), 72 Lawy. Ed., Adv. Op. No. 10, p. 394, 48 Sup. Ct. 331 (decided April 9, 1928).
¶13The state having received and benefited by the payment of such funds, the plainest dictates of justice and fair play require the return of such sums to the ones unlawfully deprived of the same, and this court, bound as we are by statute, sec. 251.09, coinciding as it does with what should be our inclination, should see to it that justice does not miscarry and should follow recognized paths for affording relief rather than give judicial sanction to attempts to retain such unjust enrichment. Under the power there is in' this court as recognized in Estate of Hoehl, 181 Wis. 190, 193 N. W. 514, and in many other instances, I think the proceedings should be remanded to the county court with directions to expunge from its record so much thereof as attempted to withhold from the tender which was made for the payment of only proper inheritance tax, the amounts here involved, and that then such amounts should be certified as having *257been erroneously paid and be refunded under sec. 72.08 (2) ; or direct relief be given in this action.
¶14As far back as 1850 in Woodruff v. Trapnall, 10 How. (51 U. S.) 190, it was said (p. 207) : “We naturally look to the action of a sovereign state to be characterized by a more scrupulous regard to justice and a higher morality than belong to the ordinary transactions of individuals.” Trite as such declaration may seem, I should regret to see it become obsolete.
¶15Upon the receipt by the agents of the state of money which did not, in law or justice, rightfully belong to them, thereupon, at the time of such withholding of the money, there arose an implied contract to repay the same, and after having been presented to the legislature by way of a claim, as was done in this case, it could thereafter be the basis for a judgment for such return.
¶16In Sultzbach C. Co. v. U. S. 10 Fed. (2d) 363, the plaintiff there had pleaded guilty to a violation of the Lever Act and paid $6,000 on an execution on the penalty, but before the balance was paid the act was held unconstitutional; thereupon the indictment was vacated; the sentence set aside; and in an action brought to recover the $6,000 the government’s motion to dismiss was denied. This right to sue was placed squarely upon the ground that a qiiari-contractual relationship existed by which the government obligated itself to repay such amount, and that any element of tort which might exist might be waived and the implied.promise to repay be asserted, the court saying (p. 365) : “It is fair to presume that in the instant case the government, in withholding the money paid, does not, in view of the unconstitutionality of the statute under which the fine was imposed, claim to be the owner thereof.” That case referred to U. S. v. Great Falls Mfg. Co. 112 U. S. 645, 28 Lawy. Ed. 846, 5 Sup. Ct. 306, and to Devlin v. U. S. 12 Ct. Cl. 266, where it was held that a fine imposed on an illegal conviction during the *258Civil War is a deposit with the government and an action on implied promise to repay was proper. See, also, U. S. v. Rothstein, 187 Fed. 268, 109 C. C. A. 521.
¶17It being so well established that the United States government recognizes that such an evident moral obligation is also a legal obligation and that compensation is due to one whose property is taken unlawfully by the government, and that it is bound as much, if not more so, than would be an individual, by the arising of an implied contract to pay when it improperly benefits and the owner of property is unjustly deprived thereof, and this based upon the principles of common justice as is so well stated in Phelps v. U. S. 274 U. S. 341, 343, 47 Sup. Ct. 611; Campbell v. U. S. 266 U. S. 368, 370, 45 Sup. Ct. 115; U. S. v. Cress, 243 U. S. 316, 329, 37 Sup. Ct. 380; U. S. v. Lynah, 188 U. S. 445, 465, 23 Sup. Ct. 349, just why a state should not recognize and be bound by such a plain legal as well as moral obligation, so clearly recognized by the federal government, I am at a loss to understand. I think that in such matters the state, as sovereign, should set a proper standard and exemplar to the citizens instead of asserting technical claims to hold onto property of its citizens, taken from them by agencies of the state and by reason of the exercise of a temporary controlling authority for which it had no constitutional warrant.
¶18A motion for a rehearing was denied, with $25 costs in one case, on June 18, 1928.