#### State ex rel. M. A. Hanna Dock Company, Respondent, vs. Willcuts, City Clerk, Appellant.

*October 5*—

October *25, 1910.*

*Taxation: Assessment of property omitted in former year: Assessor testifying as to omissions: Statutes: Repeal by implication.*

1. Actual and intentional omission by tbe assessor to assess a part of certain property under the mistaken notion that such part was not subject to local taxation does not preclude assessment thereof in the following year as omitted property, under sec. 1059, Stats. (Laws of 1909, ch. 490), such omission not being in the nature of a judicial determination of a question of fact.

2. The provision of sec. 1063, Stats. (1898), that no assessor shall be allowed by his oath or testimony to contradict or impeach any affidavit or certificate made or signed by him as such assessor, is hy necessary implication repealed by sec. 1059, Stats. (Laws of 1909, ch. 490), and ch. 371, Laws of 1907 (secs. 925 — 139, 1060, 1062, Stats.), in so far as it would interfere with performance by the assessor of the new duties imposed by the last mentioned statutes.

Appeal from a judgment of tbe superior court of Douglas county: Cbaeles Smith, Judge.

*Reversed.*

Action to test tbe validity of a decision of tbe board of review of tbe city of Superior, Wisconsin.

In 1907, tbe assessor of Superior assessed tbe Pittsburgh Goal Company on account of coal on its dock, denominated railway coal. Sucb proceedings were taken in respect to tbe matter tbat tbe circuit court for Douglas county decided tbat tbe property was exempt from local taxation because of its being, in fact, owned and for use by a railway company in tbe operations of its road. Tbe question at tbe bottom of tbe litigation was wbetber, under transactions wbicb bad occurred between tbe railway company and tbe coal company, tbe title to tbe coal yet remained in tbe latter, although tbe property was called railway coal. On appeal tbe judgment of tbe circuit court was reversed, it being thus finally decided tbat tbe real owner of tbe coal was tbe coal company.

*450In 1908, after tbe decision in tbe circuit court and before that on appeal, tbe assessor was called upon to assess sucb coal as tbe respondent bad on its dock in Superior, except sucb as was exempt. It bad, in a common mass, a large quantity of coal of tbe character wbicb bad been beld by tbe circuit court, as aforesaid, exempt from local taxation, and a large quantity wbicb was conceded to be not-so exempt. Tbe assessor estimated that tbe latter portion of tbe common mass was of tbe value of $66,500, and entered that amount on bis roll as tbe value of merchants’ and manufacturers’ stock, assessable to respondent.

In 1909 — it having been decided that coal having tbe status of tbe so-called railway coal was not owned by tbe railway company but was tbe property of tbe coal company and so •liable to local taxation — the assessor, in making bis annual assessment, assessed to respondent, as tbe value of tbe coal wbicb was omitted as aforesaid for tbe year 1908, $96,000. In due course objection was made to sucb assessment before the board of review. Upon tbe bearing in that regard, respondent introduced in evidence tbe assessment roll for 1908, showing tbe assessment to respondent as aforesaid, and purporting on its face to be an assessment of all its property of tbe class in question, assessable for sucb year. In that situation it was claimed that tbe assessor was incompetent to testify to facts showing bow be came to make tbe assessment for 1909 as for property omitted in 1908, because tbe effect thereof would be to impeach tbe assessment of tbe latter year, contrary to sec. 1063, Stats. (1898). On behalf of tbe assessor’s position it was claimed that sec. 1059, Stats. (1898), as amended by cb. 490, Laws of 1909, requiring tbe assessor in making bis assessment for any year to assess for each of tbe three preceding years any property omitted from tbe assessment for any of sucb years, and cb. 311, Laws of 1907, relieving tbe assessor from tbe duty of acting as member of tbe board of review, and substituting therefor tbe duty to *451attend, tbe meeting of tbe board, when desired, and submit to examination under oatb, respecting bis assessment, repealed ■see. 1063, aforesaid, to tbe extent necessary for bim to perform sucb duties. Tbe board of review so beld and tbe assessor, under oatb, explained, in detail, substantially as before stated, bow be came to make tbe assessment complained of. Tbe general effect of bis evidence was that in making tbe assessment of 1908, be estimated tbe number of tons of soft coal found in respondent’s possession and determined that about ■60,000 tons thereof was of tbe class which bad been beld by the circuit court not assessable for local taxation and assessed tbe remainder only, placing on account thereof upon tbe assessment roll $66,500 as tbe value of merchants’ and manufacturers’ stock assessable to tbe dock company. There was •other evidence in support of tbe assessment, tending to show that tbe dock company bad in its possession and assessable for 1908, tbe amount of coal claimed by tbe assessor. Tbe dock company neglected to produce any proof to tbe contrary, except as aforesaid, and, in effect, refused to make any statement respecting tbe amount of coal it bad on its dock at tbe time tbe assessment of 1908 was made.

Upon tbe case thus made, tbe objection by tbe dock company was overruled. . Tbe proceedings in that regard were duly carried by writ of *certiorari*to tbe superior court of Douglas county for review, resulting in a judgment reversing the decision of tbe board of review. This appeal is taken from sucb judgment.

Eor tbe appellant there was a brief by *B. I. Tipton*and *T. L. McIntosh,*and oral argument by *Mr. Tipton.*

Eor tbe respondent there was a brief by *Luse, Powell & Luse,*and oral argument by *L. K. Luse.*

Maeshaul, J.

Tbe judgment of tbe superior court must be reversed for reasons which very clearly require that result.

Counsel for respondent cite *Allwood v. Cowen,*111 Ill. *452481, as bolding, under a similar law, that where the assessor determines a question of fact as to the value of a certain class, or certain articles of property, such determination is of a judicial nature and not subject to review by him a subsequent year, so as to permit him to make a further assessment on account of the same property upon the theory -that his previous determination was too low. It is sufficient for now that we have no such case befoi*e us. If the assessor had determined in 1908, that the dock company had 80,000 tons of coal and that the assessable value thereof was $66,500, doubtless he could not have assessed to it an additional amount on account of such coal the next year, upon the pretext that the first assessment was too low. That would have been radically different than what in fact took place; an actual omission to assess the greater part of the coal upon the mistaken notion that it was not subject to local taxation. Counsel has not advanced any reason which appeals to our minds why such omitted coal was not assessable in 1909 under sec. 1059, Stats. (Laws of 1909, ch. 490).

The claim that the board of review committed .jurisdictional error in overruling appellant’s objection to the assessment, in face of the prima *facie*case, if there were such, against the assessment, made by introducing the roll of 1908, rests wholly on the theory that the evidence of the assessor explaining the situation was incompetent under sec. 1063, Stats. (1898). If his evidence was competent it would not be contended, for a moment, but that the board decided the question presented to it without jurisdictional error, so far as presence of evidence bearing on the question at issue was concerned.

It is conceded, as we understand it and as the fact is, that the record of the assessment of 1909, by itself^ made a *prima facie*case in favor of the work of the assessor. *State ex*rel. *Giroux v. Lien,*108 Wis. 316, 84 N. W. 422; *State ex rel. Heller v. Fuldner,*109 Wis. 56, 85 N. W. 118. There *453was no evidence against it except tbe assessment roll of 19OS which, was conclusively explained in harmony with the assessment objected to, if the assessor’s evidence was proper or the assessment was otherwise sustained. The oral evidence on the subject was not confined to that of the assessor, while the failure of the dock company to offer any evidence of the amount of coal it had in 1908, and refusal to make any disclosure in that regard, left it in an exceedingly weak position regardless of the assessor’s evidence.

However, we cannot escape the conclusion that the statutory requirement for the assessor to assess in one year property omitted the previous year, and the one requiring him to testify under oath before the board of review respecting all matters relating to his assessment, by necessary implication, repealed sec. 1063, Stats. (1898), so far as performance of the new statutory duties would otherwise be interfered with.

There is no more familiar rule relating to the construction together of two statutes which conflict, than that, so far as they cannot reasonably be both given full effect, the later statute is to be regarded as having been intended to supersede the earlier one. *Kellogg v. Oshkosh,*14 Wis. 623; *Bohlman v. G. B. & M. R. Co.*40 Wis. 157; *Northwestern Mut. L. Ins. Co. v. Drown,*51 Wis. 419, 8 N. W. 237; *Wis. Cent. R. Co. v. Cornell Univ.*52 Wis. 537, 8 N. W. 491; *Smith v. Eau Claire,*78 Wis. 457, 47 N. W. 830.

The decision of the board of review was unimpeachable except for jurisdictional error. *State ex rel. Milwaukee Med. Coll. v. Chittenden,*127 Wis. 468, 107 N. W. 500; *State ex rel. Augusta v. Losby,*115 Wis. 57, 90 N. W. 188. ’The board had undoubted jurisdiction over the subject matter, by express provision of the written law. It, as clearly, had jurisdiction to decide, upon evidence produced, whether the facts existed or not rendering the assessment complained of justifiable. It had no jurisdiction to condemn the assessment without evidence to impeach it, and, as we have seen, there *454was none. To bave condemned it under tbe circumstances would bave been jurisdictional error in favor of tbe dock company. Assuming that there was some evidence impeaching the assessment, tbe board bad jurisdiction to sustain it, if there was any evidence which, in any reasonable view of itr justified that course. *State ex rel. Augusta v. Losby, supra.*So in any view we can take of tbe case, no jurisdictional error was committed by tbe board and its decision should bave been affirmed instead of reversed.

*By the Court.*— Tbe judgment of tbe superior court is reversed, and tbe cause remanded with directions to enter judgment affirming tbe decision of tbe board of review.