Petition for rehearing granted and former opinion set aside and judgment appealed from affirmed ON REHEARING (23 P.2d 917) IN BANC. Since our former decision in In re Blagen Estate, a rehearing has been had and this matter is again before us for decision. In that decision we held, all the members of Department 1 concurring, that the exemption provided by section 10-604, Oregon Code 1930, applies to any property which had been received by the decedent within one year prior to his death by inheritance, devise or bequest *Page 76 upon which an inheritance tax had been paid. That decision made the actual receipt of property by the second decedent within one year prior to his death by inheritance, devise or bequest, the sole test of exemption and gave no effect to the words immediately following in the statute, namely: "where such property can be identified as having been so received, and where the tax on such property shall within one year have been imposed and accrued". This we now think was error.
The language of the statute is:
"There shall be allowed as a deduction from the value of the property subject to the taxes imposed by section 10-603, Oregon Code, an amount equal to the value of any property received by the decedent within one year prior to his death by inheritance, devise or bequest, where such property can be identified as having been so received, and where the tax on such property shall within one year have been imposed and accrued in this state under sections 10-603 and 10-606, Oregon Code, and the tax subsequently paid. This deduction shall be allowed only in the amount of the value of the property as fixed and allowed as the basis of the tax in the estate of the prior decedent, and only as to taxes paid to the state of Oregon". Section 10-604, Oregon Code 1930.
Section 10-606, among other things, provides that:
"All taxes imposed by this act shall take effect at and accrue upon the death of the decedent, or donor, and shall be due and payable at the expiration of eight months from such death, except as otherwise provided in this act; * * *".
Under this latter section the inheritance tax provided in the act is imposed and accrues upon the death of the first decedent and, hence, under the admitted facts in this case, it was imposed and accrued upon the property devised by the first decedent at the time of *Page 77 his death and this was more than one year before the death of the second decedent.
The power of exemption, as well as the power of taxation, is an essential element of sovereignty and can only be surrendered or diminished in plain and explicit terms and, since section 10-604 is a statute exempting property from taxation, it must be strictly construed. It clearly provides that there shall be deducted from the value of the property subject to the tax imposed under the act an amount equal to the value of any property received by the second decedent within one year prior to his death by inheritance, devise or bequest, where such property can be identified as having been so received and where the tax on such property shall, within one year, have been imposed and accrued and the tax subsequently paid. It is as essential under the provisions of this statute that the tax on property received by inheritance, devise or bequest shall have been imposed and accrued within one year prior to the second decedent's death as it is that the second decedent shall have received it within the year. The true meaning of the statute is plain and, unless all the conditions prescribed by the statute are shown to exist, the property is subject to taxation under the act. Our former decision gave effect only to a part of the requirements which must exist under the statute before the exemption can be granted and thereby failed to give effect to the true meaning and intent of the statute. In this there was error. For these reasons, our former decision must be overruled and set aside, and the judgment appealed from will be affirmed.
BAILEY, J., did not participate in this decision.
ROSSMAN, J., dissents. *Page 78