I am unable to concur in the opinion of the majority in this case. As I view the foregoing opinion, it proceeds upon a clear misconception of the character and purpose of section 7396 of the Code of 1931 quoted in the opinion. This section does not in any sense, either in terms or by implication, purport to fix the time within which an action to adjudicate the right of an administrator, executor, or person in interest to a refund of inheritance taxes erroneously or illegally paid shall be commenced. In that sense, it is not, in my opinion, a statute of limitations at all. The legislative history of the act seems to me to be quite conclusive on the subject. The original enactment constituted chapter 63, Laws of the Twenty-ninth General Assembly, which, omitting the title, is as follows:
"Section 1. That when a court of competent jurisdiction has or may hereafter determine that property, upon which a collateral inheritance tax has been paid, is not subject to or liable for the payment *Page 238 of such tax, so much of such tax which has been overpaid to the treasurer of state, shall be returned or refunded to the executor or administrator of such estate, or to those entitled thereto, when a certified copy of the record of such court showing the fact of non-liability of such property to the payment of such tax has been filed with the executive council of the state, the executive council shall issue an order to the auditor of the state directing him to issue a warrant upon the treasurer of the state to refund such tax.
"Sec. 2. Such order of court shall not be given until fifteen days notice of the application therefor shall be given to the treasurer of state of the time and place of the hearing of such application, which notice shall be served in the same manner as provided for original notices."
The time element was omitted from this act. Authority to refund a tax existed only when preceded by an adjudication by a court of competent jurisdiction. The duty to direct the refund after an adjudication by a court of competent jurisdiction was had rested, in the first instance, upon the executive council. The act was two-fold in character. It assumed that a court of competent jurisdiction might, in some form of action, adjudicate an issue as to the right of the state to demand or retain the tax. This done, the act made it the duty of the executive council to proceed under proper circumstances as directed by section 1 of the act. It also, in effect, limited the authority of the executive council or other officers to refund taxes without a prior adjudication of a court of competent jurisdiction. Perhaps the act would not be deemed to apply to a case in which the error was merely one of computation or otherwise purely clerical in character. Thus, the law remained until 1911 when the laws of the Thirty-fourth General Assembly were enacted. By this act chapter 4, title 7, of the Code relating to collateral inheritance tax was repealed, and chapter 68, Laws of the Thirty-fourth General Assembly, substituted therefor. Sections 1 and 2 of chapter 63 were re-enacted with certain material changes noted below as section 44 of chapter 68. Except as here noted, the change in the verbiage of the two acts is wholly immaterial. It is at this point in the history of the legislation that the time element enters.
The material change in the respective acts to be noted is almost wholly confined to the first two lines. Chapter 351 of the Code of 1931, of which the above section is a part, is much broader and *Page 239 more comprehensive than preceding collateral inheritance tax laws were. Subject to certain exceptions noted in chapter 351, inheritance taxes are required to be paid in all cases instead of being limited to collateral inheritance taxes alone. We quote the first line of section 7396 as follows: "When, within five years after the payment of the tax. * * *" This language differs from the language of chapter 63, Laws of the Twenty-ninth General Assembly, in effect only, in respect to the time within which the adjudication by a court of competent jurisdiction must be had. As originally enacted, the corresponding language was as follows: "That when a court of competent jurisdiction has or may hereafter determine. * * *" When the acts are compared and read together, it is obvious that the section in question was never designed as, and is not in any sense, a statute of limitations fixing a time within which actions may be commenced. Instead, it places a limit upon the time within which adjudication may be had. As stated, the original enactment did not limit the time within which a court of competent jurisdiction might adjudicate the right to a refund of the tax. The original purpose of the act was to provide a method by which collateral inheritance taxes, illegally or erroneously exacted, might, upon proper adjudication by a court of competent jurisdiction, be refunded. The present statute merely limits the time within which the right to a refund may be declared by a court of competent jurisdiction. In other words, the statute operates as a limitation upon the time within which the adjudication must be complete, and, in addition, limits the authority of the executive council to proceed under the certification of the record of an adjudication entered more than five years after the payment of the tax. In my opinion, the judgment should be reversed.