Epitomized Opinion
Wertheimer and others brought an action to recover certain sums paid as taxes- In June, 1920, Neurad entered into a contract with the defendant by which he agreed to buy 500 cases of Green Briar Whiskey in quart bottles at $11.50 per case, subject to all taxes and charges due thereon. After paying for these cases he received five warehouse certificates for 100 cases each, under which he was entitled to receive the goods upon payment of all taxes levied thereon. Among the taxes levied was a tax by the state of Kentucky known as the Vance tax, amounting to $0.50 per gallon. Later this tax was declared unconstitutional and the amount paid thereunder was returned to the defendants. The plaintiff brought this action to recover the amount so received. The Municipal Court of Cincinnati and the Common Pleas rendered judgment for the defendants. Plaintiff prosecuted error. In reversing the judgment of the lower courts, the Court of Appeals held:
1. As the sales are made subject to the payment of a tax by the holder of the warehouse receipts at the time the whiskey was ordered out, the holder is entitled to recover back any sums paid to the seller because of a tax levy under an unconstitutional tax law.