#### Hurley and another vs. The Town of Texas.

*Taxation*— Assessment *of manufacturers’ stock*— Logs *m transit to mill,rto be assessed at town whei'e mill is situate*— LiaMUty *of town for taxes illegally assessed*— Secs. 6, IS *and*16, *ch.*167, *Laws of*1859.

1. The provisions of sections 13 and 16, Laws of 1859, in regard to listing and taxing “manufacturers’ stock,” are in conflict with those of sec. 5 of the same chapter, as amended by ch. 295, Laws of 1860; but the former two sections are continued in force by said ch. 295, and all three sections re-enacted in ch. 886, Laws of 1860; and tbe provisions of said secs. 13 and 16 must prevail over those of said sec. 5.

2. Logs in transit on the 5th of June through one town to the owner’s mills in another town, at which they are to be converted into lumber, are taxable (as manufacturers’ stock) in the town where the mills are situate, and not in that in which they are found on that day.

S. The logs in this case having been improperly assessed and taxed in the latter town, and the tax collected by distress, the town is held liable to the owner for the amount so collected.

APPEAL from tbe Circuit Court for *Marathon*County.

Tbe plaintiffs were partners residing and owning saw mills in Wood county, and on tbe 5tb of June were owners of 15,000 feet of “pine lumber, board measurement in tbe log,” tben situated in tbe town of Texas in Marathón county, in Pine river and on tbe banks thereof, which was *then in*transit to said mills in Wood county, but was temporarily detained by low water. While it was so detained, tbe assessor of tbe town of Texas assessed it to' tbe plaintiffs, and thereupon tbe town clerk issued his warrant for tbe collection of $202.31, taxes upon tbe same. Tbe taxes having been returned unpaid, tbe county treasurer of Marathon county issued his warrant in due form of law, and tbe sheriff levied upon tbe personal property of tbe plaintiff tben in said county, and sold sufficient thereof to pay said taxes and costs. This action was brought to recover tbe amount so made.

To a complaint stating tbe above facts tbe town demurred, on the grounds, 1. That tbe county treasurer should have been joined as a defendant. 2. That no cause of action was *635stated. The demurrer was overruled as to the first ground of objection, and sustained as to the second; and the plaintiff appealed.

*Chase & West*(with whom was *S. TJ.*Pinney, of counsel), for appellants,

to the point that the foiwiwas liable, cited *Matheson v. Town of Mazomanie,*[ante, p. 191.] 2. The logs in question, situated as they were, were not “manufacturers’ stock,” within the meaning of the law, secs. 13 and 16, chap. 167, Laws of 1859, as modified by chap. 403, Laws of 1864. Personal property, before it becomes “ manufacturers’ stock,” must be purchased and *held in readiness to*manufacture, and must have reach the location of the manufactory ; otherwise very absurd and unjust consequences would follow from the application of the rule that the actual presence of the property in a town on a given day determines where it is liable to taxation. Property in transit may in fact be in half a dozen different towns on the same day. The words “ where it was situated” must therefore be interpreted to mean where it was situated in readiness to be submitted to the manufacturing process. Until it reaches that point, it is taxable as personal property in the town where the owner resides. But perhaps it might be taxed as *“*manufacturers’ stock” in the town where the manufactory is located, though it may not have actually reached its destination. In either case the logs in question were not taxable in the town of Texas.

*W. C. Silver thorn,*for respondent:

1. The complaint shows that the taxes collected included the county taxes as well as those of the town &c., and that the county treasurer issued his warrant for their collection. He should therefore be joined as a defendant. 2. The property was taxable in the town of Texas. Laws of 1864, chap. 403, sec. 1; Laws of 1860, ch. 386, sec. 16 ; Laws of 1862, ch. 279.

The following opinion was filed at the January term, 1866 :

Downer, J.

The first question presented for our consider*636ation by tbe demurrer to the complaint is: Were tbe logs of tbe appellants, wbicli were temporarily in tbe town of Texas on tbe 5tb day of June, 1864, being then in transit to their mills in another town, .where they intended to manufacture them into lumber, lawfully listed and taxed in tbe town of Texas ? Tbe logs were manufacturers’ stock Section 5, cb. 386, Laws of 1860, provides that manufacturers’ stock shall be listed and taxed in tbe town or ward in which it was situated at tbe time of listing. This section was amended by cb. 403, Laws of 1864, so as to provide that manufacturers’ stock shall be listed and taxed each year in tbe town or ward in which it was situated on tbe fifth day of June in each year. Sections 13 and 16, cb. 386, Laws of 1860, provide, in substance, that when a merchant or manufacturer shall be required to make out and deliver to tbe assessor a statement of his other personal property, be shall include in such statement tbe value of bis personal property appertaining to bis business as a merchant or manufacturer. And in estimating tbe value of such property, it further provides, be shall estimate tbe average value of tbe ■personal property be bad in bis business each month of tbe preceding year, or such part thereof as be may have been in business, then add tbe several monthly estimates and divide tbe aggregate by twelve, or tbe number of months be may have been thus engaged in business. And tbe average value thus ascertained is tbe amount on which be is to be taxed for stock or personal property appertaining to bis business. It is clear that there is a conflict between tbe provisions of section five as amended, and those of sections 13 and 16. Tbe provisions of tbe former require manufacturers’ stock on band on tbe fifth day of June to be valued, listed and taxed tbe same as other personal property in tbe town where it is or was on that day. Tbe latter provide a different mode of valuation and listing — in substance, that tbe manufacturers’ stock on band on tbe fifth day of June shall not be valued and listed tbe same as other personal property in tbe town where it is *637or was on tbat day. Section five must be construed to mean tbat manufacturers’ stock belonging to tbe same person and pertaining to tbe same business may be taxed in different towns, part in one and part in another, if it is situated part in one and part in another on tbe fifth day of June. Sections 13 and 16 provide tbat tbe manufacturer, when he delivers to tbe assessor a statement of bis other personal property, *shall include in such statement*tbe value of tbe personal property appertaining to bis business, to be ascertained by monthly averages in tbe manner therein pointed out. This statement should include all personal property pertaining to bis business, on which be could be taxed, though situated in different towns. We cannot reconcile these conflicting provisions. And we bold tbat tbe provisions of sections 13 and 16 must prevail where they are in conflict with those of section five as amended. It follows, taking tbe statements of tbe complaint as true, tbat tbe plaintiffs’ property was wrongfully listed and taxed in tbe town of Texas.

Tbe next question is, can tbe town be held liable for tbe unlawful act of tbe assessor? It is a general principle, tbat if officers of a corporation do not act within tbe scope of their au thority, tbe corporation is not responsible for such unlawful acts. But we think this case comes within tbe exception to tbe rule laid down in tbe case of *Thayer v.*Boston, 19 Pick., 511. They court there say: “ There is a large class of cases, in which tbe rights both of the public and of individuals may be deeply involved, in which' it cannot be known at tbe time tbe act is done, whether it is lawful or not. Tbe event of a legal inquiry in a court of justice may show tbat it was unlawful. Still,if it was not known and understood to be unlawful at tbe time, if it was an act done by tbe officers having competent authority, either by express vote of tbe city government or by tbe nature of tbe duties and functions with which they are charged, by their offices, to act upon tbe general subject matter, and especially if tbe act was done with an honest view to *638obtain for tbe public some lawful benefit or advantage, reason and justice obviously require that tbe city, in its corporate capacity, should be bable to make good tbe damage sustained by an individual in consequence of tbe acts thus done.” And tbe court further proceed to show that it was for tbe benefit of tbe corporation that such a rule should be established; otherwise its officers might refuse to act, on any weak pretense. We have no hesitation in applying tbe principle of that decision to this case.

*By the Court.*— Tbe judgment of the court below is reversed, with direction to overrule tbe demurrer.'

A motion for a rehearing was argued by *Messrs. Braley &*Smith, for tbe respondent, and *Mr.*Pinney, *contra;*and was denied at tbe June term.

I)OWNER, J.

We are asked to grant a rehearing in this cause, on tbe ground that so much of any act as conflicts with sec. 5, ch. 167, Laws of 1859, as amended by ch. 295, Laws of 1860, was repealed by sec. 3 of the latter chapter, which repeals so much of any act as conflicts with the provisions of that chapter. Hence it is said that if there is a conflict between the provisions of sec. 5, as amended, and sections 13 and 16 of the act of 1859, the former should prevail, as the conflicting provisions of the latter were repealed. The act of 1860 also amends, and continues in force as amended, section 16 of the act of 1859, and of course it cannot be repealed by the same act which amends a7id continues it in force.

Section 16 refers to and is so connected with section 13 that the former cannot be in force without the latter, or at least so much of it as is connected with any question arising in this action. All these sections were therefore rightly inserted by the committee revising these acts, in what is published as chapter 886, Laws of 1860. The amendments to the chapter in 1864 were obviously not intended to repeal sections 13 and 16; and all these sections, 5,13, and 16, being properly *639inserted in tbe revision known as chapter-' 386, Laws of 1860, must be construed as if they bad all been enacted at tbe same time by tbe same act.

*By the*Gourt.— The motion for a rehearing is overruled.