Affirmed.

LINDE, J.Page 11

LINDE, J.

Oregon subjects to taxation "[a]ll property and any interest therein, within the jurisdiction of the state, whether belonging to the inhabitants of this state or not," which is transferred by inheritance or in other specified ways on the occasion of a person's death. ORS 118.010. The rate of the tax on an estate is determined by the amount of the estate subject to the tax, according to the following table set forth in ORS 118.100 (1):

The rates of tax on all estates shall be as follows:

--------------------------------------------------- On any amount But not Rate exceeding exceeding (in percent)

$ 25,000 $ 75,000 3 75,000 100,000 4 100,000 300,000 7 300,000 500,000 9 500,000 12 --------------------------------------------------- The tax on the estate under this subsection shall be in full for all inheritance tax on any devise, bequest, legacy, gift or beneficial interest to any property or income therefrom which shall pass to or for the use or benefit of any grandparent, parent, spouse, child or stepchild or any lineal descendant of a child or stepchild of the deceased.

An additional inheritance tax is levied against beneficiaries other than a decedent's spouse or lineal relatives. ORS 118.100 (2), (3). Subsections (4) and (5) provide for "picking up" any unused portion of a federal estate credit for a state tax to which Oregon may be entitled.

A section enacted in 1969, ORS 118.095, provides that when a decedent leaves property both within and outside Oregon, "exemptions" from the inheritance tax shall be prorated in proportion to the fraction of the entire property that is within Oregon. The Department of Revenue construes this provision so as to prorate those parts of an estate that fall within the "zero rate" brackets of ORS 118.100. Plaintiffs filed a class action in the Tax Court asking the court to declare this pro rate reduction invalid under the uniformity provisions of the Oregon Constitution and the fourteenth amendment of the Constitution of the United States. The Tax Court rejected these constitutional claims, and plaintiffs appeal.

1, 2. It is the established practice of this court to examine nonconstitutional issues that bear on the decision of a case before reaching claims that the state has violated its own or the federal constitution, and to choose between alternative constructions of an uncertain text the one that avoids serious constitutional difficulty. See State v. Harmon, 225 Or. 571, 577, 358 P.2d 1048 (1961); Wright v. Blue Mt. Hospital Dist., 214 Or. 141, 144, 328 P.2d 314 (1958); Peninsula Drainage Dist. No. 2 v. City of Portland, 212 Or. 398, 418, 320 P.2d 277 (1958); Federal Cartridge Corp v. Helstrom, 202 Or. 557, 565, 276 P.2d 720 (1954). In this case, the text of the challenged statute, ORS 118.095, leaves much uncertain. First, while this section prescribes the apportionment of "exemptions," the inheritance tax statute does not describe the first, untaxed, steps of the tax tables in ORS 118.100, supra, as "exemptions." At the same time, the statute does provide for a number of "exemptions", but these do not lend themselves to the prorating prescribed in ORS 118.095. Secondly, the prorating of the "zero rate" brackets in ORS 118.100 does not necessarily have the same effect as the prorating of a true "exemption" would have, if the thresholds for the steps beginning, for instance, at $75,000, $100,000, etc., are left where ORS 118.100 places them. Finally, we note that the legislative assembly amended this statute in 1977, introducing new "exemptions" into ORS 118.100 and simultaneously repealing ORS 118.095, the section at issue here. Or Laws 1977 ch 666, §§ 9, 36. Accordingly, we invited the parties to submit supplemental memoranda on the uncertainties of the law in order to see whether decision of its validity is necessary. Apparently it is. The parties agree that ORS 118.095 was enacted at the instance of the Department of Revenue to match a similar prorating of inheritance tax exemptions by the State of Washington. The Department's statement to the legislature and its subsequent administration of the section bear out this intended application of the prorating formula to the "zero rate" brackets and not to the exemptions actually so labeled in the inheritance tax statute. We turn, therefore, to the constitutional arguments.

3. With respect to the claim to uniformity or equality of taxation, this court has stated on past occasions that for practical purposes the concept is the same under the relevant provisions of the Oregon Constitution as under the equal protection clause of the fourteenth amendment. See In re Estate of Heck, 120 Or. 80, 86, 250 P. 735 (1926), citing Standard Lumber Co. v. Pierce, 112 Or. 314, 333, 228 P. 812 (1924). This is so in the sense that a court will rarely have occasion to hold that an act provides the requisite uniformity and equality under the Oregon Constitution and yet falls afoul of the federal clause, though the opposite may well occur. Thus we shall treat these claims together for convenience, though if Oregon's own law entitled plaintiffs to prevail, they need no claim under the Federal Constitution.

Article I, section 32, originally stated that "all taxation shall be uniform within the territorial limits of the authority levying the tax." It was amended in 1917 to the present form, supra note 5, which requires uniformity of taxation only "on the same class of subjects." H.J.R. No. 16, Or Laws 1917. The same resolution proposed, and the people adopted, changes in article IX, section 1, that replaced prior requirements of an "equal rate" and a "just valuation" with the less stringent requirement of "uniform rules" of assessment and taxation. These changes were apparently thought necessary to facilitate the evolution of taxation beyond the ad valorem property tax and to allow different taxes on different "subjects," as well as differential rates of taxation (such as a progressive income tax), so long as the tax was uniform geographically and within one "class of subjects." See Standard Lumber Co. v. Pierce, 112 Or at 335, 228 P at 818-819. While the notion of a "class" cannot eliminate the problem of uniformity, the amendment signalled a change of political emphasis from the earlier concern for identical taxation toward a more differentiated tax system, safeguarded nevertheless against favoritism or discrimination, the same concerns that are embodied respectively in Oregon's article I, section 20, and in the equal protection clause. Accordingly, the court early held that lawmakers have broad freedom to classify the subjects of taxation both for purposes of the imposition and of the rate of tax. In re Estate of Heck, supra; Standard Lumber Co. v. Pierce, supra; see Etter, Municipal Tax Differentials, 37 Or L Rev 1, 35-45 (1957).

4. Measured by the standards set in those decisions, we cannot say that ORS 118.095 fails for lack of uniformity. The characteristic that differentiates one estate from another for purposes of prorating the "exemptions" in the inheritance tax brackets is the proportion of the taxable property that is within Oregon. It is not the court's concern whether the scheme had a reason with which we would agree. As already stated, the legislature itself has repealed it. But the rule does not differ from one part of the state to another. It does not single out any fixed group or class of persons; anyone might change or move property in and out of Oregon, altering the proportions of the eventual estate from day to day. The prorating rule is not tied to someone's residence within or outside Oregon, thus avoiding any issue similar to that in Berry v. State Tax Commission, 241 Or. 580, 397 P.2d 780 (1964), appeal dismissed, 382 U.S. 16 (1965). Cf. Mendiola v. Graham, 139 Or. 592, 10 P.2d 911 (1932). While the effect of ORS 118.095 is to increase or decrease the tax collected on sums within the lowest tax brackets, this effect is the same for all estates and all heirs of estates that are similarly situated under the law. For the same reasons, we do not find ORS 118.095 to grant any citizen or class of citizens a privilege or immunity that is not equally available to all on the same terms, Or Const art I, § 20, nor to deny anyone the equal protection of the laws.

5. Plaintiffs' main constitutional claim is that ORS 118.095, in prorating the "exemptions" by the location of the property of the estate, in effect levies the additional tax on property outside Oregon, which is said to violate the due process clause of the fourteenth amendment. They invoke the decisions of the United States Supreme Court in Frick v. Pennsylvania, 268 U.S. 473, 45 S Ct 603, 69 L Ed 1058 (1925), and Treichler v. Wisconsin, 338 U.S. 251, 70 S Ct 1, 94 L Ed 37 (1949). The Department relies on other decisions holding that property outside a state may be counted in determining the rate at which something otherwise within the state's taxing power will be taxed. Maxwell v. Bugbee, 250 U.S. 525, 40 S Ct 2, 63 L Ed 1124 (1919). The Tax Court thought Maxwell closer than Frick and Treichler and sustained the Department's position.

None of these decisions arose from laws identical to the one challenged here, nor are their constitutional premises clear enough to indicate an obvious result. Maxwell in 1919 sustained a New Jersey inheritance tax levied against the transfer of the New Jersey property of nonresident decedents at a rate which was measured by the size of the entire estate. Given a progressive structure of rates, this resulted in a higher tax on the New Jersey property of an estate that had assets elsewhere than on the same amount of property of an estate that did not. Six years later, the Supreme Court held in Frick that Pennsylvania could not include in its tax on the transfer of a resident decedent's estate that part of his wealth represented by tangible property outside the state. Frick was applied in Treichler in 1949 to strike down a Wisconsin "emergency" inheritance surtax of 30 percent beyond the 80 percent of the federal basic estate tax already "picked up" by the state, insofar as the federal tax so used as a base included tangible property outside Wisconsin. No further guidance on the precise point has appeared in the past 28 years, though there has been considerable movement in other aspects of the constitutional law of state taxation.

Taking only these three decisions, it would appear that a taxing state may count the total size of an estate, including tangible property outside its borders, to increase the rate applied in taxing the transfer of the estate within its jurisdiction, but it may not count the total wealth even of a resident decedent as the base for applying that rate in taxing his estate. Since either inclusion of out-of-state property in the formula increases the tax, taxpayers may be forgiven if they regard the distinction as one of the mysteries of constitutional law, a view shared by Justice Holmes, dissenting with three colleagues in Maxwell, supra, and by Justice Black, dissenting in Treichler, supra. Each was doubtful how a limit on the state's power to count extraterritorial values in taxing taxpayers and incidents within its jurisdiction could be attributed to the due process clause of 1868. See, e.g., Union Refrig, Transit Co. v. Kentucky, 199 U.S. 194, 211, 26 S Ct 36, 41, 50 L Ed 150, 157 (1905) (Holmes, J., dissenting). Insofar as the notion that one state has no jurisdiction over land or tangible property in the territory of another was a postulate of the federal system, it would antedate the Civil War and the fourteenth amendment. See, e.g., Howell v. State, 3 Gill 14, 21-23 (Md 1845); State ex rel Potter v. Ross, 23 NJL 517 (1857); Railroad Co. v. Jackson, 74 US (7 Wall.) 262, 19 L Ed 88 (1869); St Louis v. Ferry Co., 78 US (11 Wall.) 423, 429, 20 L Ed 192 (1871). In its simplest form of a limit on state property taxes, the postulate recognizes that tangible property in one state is beyond another state's power to enforce a lien, levy execution, or transfer possession. See Curry v. McCanless, 307 U.S. 357, 59 S Ct 900, 83 L Ed 1339 (1939). But the same postulate does not explain why a state may not collect from a taxpayer within its jurisdiction a tax measured by his entire estate or inheritance, which need not be enforced against out-of-state property.

Invocation of "due process" for this result is further complicated by the fact that the same words in the fifth amendment do not prevent the United States from taxing the foreign property of a taxpayer or an estate otherwise within its jurisdiction, apparently including nonresident citizens and land outside the United States, although the United States has no legal power there. See United States v. Bennett, 232 U.S. 299, 34 S Ct 433, 58 L Ed 612 (1914); Cook v. Tait, 265 U.S. 47, 44 S Ct 444, 68 L Ed 895 (1924); Frick v. Pennsylvania, supra, 268 US at 491; cf. Revenue Act of 1962, Pub.L. No. 87-834, § 18(a), 76 Stat. 960. These decisions place the difference on "the limitations on state authority to tax resulting from the distribution of powers ordained by the Constitution," United States v. Bennett, 232 US at 306, or on "the relation of the States to each other in the Federal Union," Burnett v. Brooks, 288 U.S. 378, 401, 53 S Ct 457, 77 L Ed 844 (1933), again, premises of federalism that do not stem from the fourteenth amendment. Also unenlightening are statements that due process makes the state's power to tax a resident by a measure that includes out-of-state assets depend, on whether the state confers a benefit in return. In no literal sense is the permissible rate or amount of a general tax on a resident tied to a corresponding benefit to the taxpayer, nor is it vulnerable to a showing that Peter is taxed to benefit Paul. Thus the quid pro quo notion is no help in explaining why a domiciliary state's benefits to a decedent are sufficient to count in his taxable estate the securities in his out-of-state wall safe, see Blodgett v. Silberman, 277 U.S. 1, 48 S Ct 410, 72 L Ed 749 (1928), but not the painting that conceals it, Frick v. Pennsylvania, supra. Rather, the distinction merely restates the extension to the inheritance tax of the same territorial postulate of state power to tax property that was earlier described as "jurisdiction."

ORS 118.095 does not purport to include tangible property outside Oregon in the gross estate or inheritance subject to its taxes. The state exempts from taxation certain amounts of the transfers that are within its jurisdiction, something it is under no obligation to do, and it fixes the size of the exemption with an eye to the size of the total estate or inheritance. In the absence of direct precedent or clearer light on the federal constitutional premises, we are not inclined to extend to this law the rule of Frick and Treichler that the state may not levy an inheritance tax against tangible property beyond its borders. Accordingly, the decision of the Tax Court is affirmed.

Affirmed.