Tally v. Brown

Ladd, J. A building on land of defendant was destroyed by fire December 23, 1901. It was insured in several companies, but the loss was not adjusted until January 5, 1905, when these companies and the insured agreed that he was entitled to the payment on the several policies of $25,250 in the aggregate within sixty days. Each of these policies contained the following paragraph: This company shall not be liable beyond the actual cash value of the property at the time any loss or damage occurs, and the loss or damage shall be ascertained or estimated according to such actual cash value, with proper deductions for depreciation however caused, and shall in no event exceed what it would then cost the insured to repair or replace the same with material of like kind and quality; and such ascertainment or estimate shall be made by the insured and this company, or, if they differ, then by appraisers, as hereinafter provided, and, the amount of loss or damage having been thus determined, the sum for which this company is liable pursuant to this policy shall be payable sixty days after due notice, ascertainment, estimate, and satisfactory proof of the loss have been received by this company in accordance with the terms of this policy. It shall be optional, however, with this company to take all, or any part, of the articles at such ascertained value, and also to repair, rebuild, or replace the property lost or damaged with other of like kind and qual [362] ity within a reasonable time on giving notice, within thirty days after the receipt of the proof herein required, of its intention so to do; but there can be no abandonment to this company of the property described. . •. . No suit or action-on this policy for the recovery of any claim shall be sustainable in any court of law or equity, until after full compliance by the insured with the foregoing requirements, nor unless commenced within twelve months after the fire. On January 1st then the validity of defendant’s claims against the several companies depended on (1) whether there had been any breach in the conditions of the policies on the part of the assured; and (2) upon the making of necessary proofs of loss. And payment was contingent upon the exercise of the option to rebuild, and, in event this was not exercised, the extent of the damages for which they' were liable was yet to be determined. Were these contingencies such as to relieve the claims for loss from assessment as property of the insured? The /assessor omitted the claims, and the county treasurer assessed them as omitted property. Under the laws of this state, personal property is “listed and assessed each year in the name of the owner thereof on the first day of January.” In re Estate of Kauffman, 104 Iowa, 639. “All other property, real and personal, is subjected to taxation. . ... And credits including bank bills, government currency, property or labor due from solvent debtors on contract or judgment, mortgages or other like securities.” Section 1308, Code. “The term credit, as used in this chapter, includes every claim or demand due or to become due for money, labor or other valuable thing . . . and all money or property of any kind secured by deed or . . . otherwise.” Section 1309, Code. “Accounts, contracts for cash or labor . . . dioses in action . . . shall be assessed as provided in this chapter.” Section 1310, Code, These in con [363] nection. with other sections of the Code manifest the legislative purpose of taxing all property, not expressly excepted as exempt, and, in construing them, this design is not to be ignored. On the other hand, if the language quoted does not fairly -include the claims on the policies as they existed January 1, 1905, this manifest intent of the lawmakers can not supply the omission of the language sufficiently comprehensive to include them. To be assessable, the liabilities on the policies must be construed to be “a claim or demand due or to become due for money, labor or other valuable thing,” or “property or labor -due from solvent debtors on contract” or “contracts for cash” or “choses in action.” The word “due” as here employed does not have reference to the time of payment or the fulfillment of .an obligation, but is synonymous with “owing.” See Jasper v. District Township Sheridan, 47 Iowa, 183; Barto v. Stewart, 21 Wash. 605 (59 Pac. 480); United States v. Bank of N. C., 31 U. S. 29 (8 L. Ed. 308). 1. Taxation of claim for loss on an insurance policy. Were these policies claims or demands in the hands of defendant? The words “debt” and “demand” are of kindred meaning, but “demand” is of more comprehensive signification than “debt.” The term “debt” imports a sum od: money owing upon a contract, express or implied, while demand . embraces rightful claims whether founded on a contract, a tort, or a superior right to property. United States Rolling Stock Co. v. Clark, 95 Ala. 322 (10 South. 917). “Demand” is regarded as a word of Avider signification than any other except “claim.” Vedder v. Vedder, 1 Denio (N. Y.) 257, 261. Judge Story defined a “claim” in Prigg v. Pennsylvania, 16 Pet. 539 (10 L. Ed. 1061), as “in a judicial’sense a demand of some matter as of right by one person upon another to do or to forbear to do some act or thing as a matter of duty.” See cases - collected in 2 Words and Phrases, 1202, 1973. [364] In Webster’s Dictionary “claim” is defined as “a demand of a right, a calling on another for something due or supposed to be due.” Without pursuing the inquiry further, it will be perceived that these policies, after the fire, came within the ordinary definition of claims, and there can be no doubt but that the Legislature employed the word in its most comprehensive sense. But it is objected, even if claims, they were contingent, and not perfected on January 1st, and therefore could not properly have been assessed. True, the proofs of loss had not been furnished. But the statute includes claims “due or to become due.” If these were within the class to “become due,” it would be immaterial whether this were because of the policy postponing the obligation to pay six days or owing to the necessity of serving proofs of loss. “If the claim had been merely one which would be due in sixty days, it comes within the definition of credits which embraces claims to become due as well as claims ‘due,’ and it would equally come within the definition if it was not yet due because the ‘proofs’ had not been made.” Cooper v. Board of Review, 207 Ill. 472 (69 N. E. 878, 64 L. R. A. 72). Again, it is said that the amount of damages had not been ascertained. The value of claims must necessarily be estimated by the assessor; and that there were difficulties in the way will not obviate the requirement that there be an assessment. Moreover, in estimating the value on January 1st, the assessor is not limited to conditions then known, but may use such information bearing thereon as may be available at the time the work of assessing is done. The value of the claims January 1st had become definitely known at that time. It is contended, however, that, as the insurance companies had the option' to rebuild, the claims were purely contingent, and therefore not subject to taxation. Authorities holding that when in that situation insurers are not subject to garnish [365] ment are cited. See Hurst v. Dowling Ins. Co., 81 Ala. 171 (1 South. 209); Dowling v. Lancashire Ins. Co., 89 Wis. 96 (61 N. W. 76); Martz v. Insurance Co., 28 Mich. 201; 20 Cyc. 997. But these decisions proceed upon, the theory that there must be a definite or absolute money liability in order to warrant holding the garnishee. An election to rebuild necessarily would relieve the company from liability as garnishee, but it would not destroy the character of the policy as constituting a claim. Conceding that, in event of electing to rebuild, the companies would cease to be insurers and become parties to a contract by which they agree to erect' for the insured a building substantially like that destroyed (Beals v. Insurance Co., 36 N. Y. 522), it is still “property due on contract” under section 1308 of the Code or “.a claim due or to become due for money, labor or other valuable thing” under section 1309. In other words, the policies in connection with the loss constituted claims for money in compensation for damages for which indemnity had been contracted by payment of money or by the restoration of property destroyed, and, in either event, are included within the language of the assessment statutes. Should the insurers elect to rebuild, the building would not be included in the valuation ' of the realty for that year, and the claim of the insured would be for property and labor in the improvement of his land, and plainly within the terms of the statute quoted. To authorize the assessment of the policies as credits, it was not essential that the assessor know whether the claims were for money or might turn out to be for property, for in either event they would be assessable as credits, though these matters would have an important bearing in estimating the value of such claims. We are of opinion that the claims for loss under the policies were subject to taxation. [366] 2. Same: assessment of property: omission by assessor: review: subsequent assessment. [365] The assessor, with full knowledge of the facts, con- , eluded that the claims were not assessable, and notified [366] defendant that he need not list them. Appellant contends that, in the absence of fraud or bad faith, this was such a determination as should be regarded as conclusive against another taxing officer attempting to assess the claims as omitted property. The nature of the act was such that, but for statutes indicating that this was not the design of the Legislature, it might well be regarded as quasi judicial, and not open to subsequent review. Such a result is obviated by the system^ of assessment _ which obtains in this state. To secure a fair assessment of large aggregation of capital, whether in the hands of individuals or corporations and a complete listing of moneys and credits are the difficult problems constantly confronting the taxing officers. So much is at stake in the valuation of great properties that, owing to causes not necessary to enumerate, the tendency is always towards undervaluation. The ingenuity of lawmakers hás' been exercised for generations in devising schemes for discovering personalty and getting it into the open for the purposes of assessment, and still it is a matter of common knowledge that but a small percentage of moneys and credits is ever listed for taxation. Apparently this is due to no fault in the law, for our statutes, as heretofore construed, have seemed’ sufficiently drastic to secure the proper assessment of all property. The prime difficulty is in their administration, and this accounts for statutory provisions intended to close every avenue of escape through collusion, evasion, or mistake. Thus the duty of listing for taxation is cast on the person who owns or controls the property. “Every inhabitant of this state, of full age and sound mind, shall list for the assessor all property subject to taxation in the state, of which he is the owner, or has the control or management, in the manner herein directed.” Section 1312, Code. By section 1320 the duty of listing also devolves on an agent in possession [367] or control of personal property for another. The same duty is exacted of private banks or bankers, as well as of national, state,, and savings banks and different corporations. Section 1321 et seq. Not only is this required, but the owner must subscribe to an oath that the assessment roll of property listed or assessed “to me” is' a “full, true and correct list of my taxable property, both real and personal property, subject to taxation within this district, and all property which should be listed on this assessment roll to me or by me.” Section 1360, Code. Refusal is punishable as a, misdemeanor. Section 1354, Code. And other lists or information from which to make them exacted in the several sections cited must be verified, and on refusal one hundred percent may be added to the assessments. Section 1357, Code. It will be noted that the oath is not that the assessment roll contains all that such assessor found to be assessable as would be likely if the assessor were exercising quasi judicial functions, but that the list is of “all taxable property which should be listed on this assessment roll to me or by me.”If the act of listing were thought judicial, it is scarcely conceivable that the owner would be required to verify the assessor’s findings. Ordinarily it is enough to submit to the judgment of a court without swearing to its correctness. The several statutes cited plainly indicate the design of casting upon the taxpayers the burden of truly listing all property. What is exacted from them under oath is required of the assessor as an official duty. Section 1352 of the Code provides that: “Each assessor shall enter upon the discharge of the duties of his office immediately after the second Monday in January in each year, and shall, with the assistance of each person assessed, of who may be required by law to list property belonging to another, enter upon the assessment rolls furnished him for that purpose the several items of property required to be entered for [368] assessment. He shall personally affix values to all property assessed hy him.” Section 1354: “The assessor shall list every person in his township, and assess all the property, personal and real therein, except such as is heretofore exempted or otherwise assessed and any person who shall refuse to make the oath required by the next section, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined in a sum not to exceed five hundred dollars.” Section 1360 directs the county auditor to furnish appropriate assessment rolls, and section 1356 that a copy of the assessment be delivered by the assessor to each person assessed with this notice: “If you are not satisfied that the foregoing assessment is correct, you can appear before the local board of • review.” Section 13 5 Y prescribes a penalty for knowingly failing to make the assessment at the true value of the property, and section 1368 provides for the examination of assessors before boards of review concerning methods adopted in fixing valuations. It will be observed that these sections !j contain no intimation that the act of the assessor in list-J ing or omitting property is to be regarded as final .or i conclusive. On the contrary, he is required to notify [every taxpayer that such is not the case, but that he may j appear before -the board of review, and have any error ¡ corrected. Without such notice, he may appear and the j omission thereof by the assessor in no way affects the validity of the assessment. In re Kauffman's Estate, 104 Iowa, 639. In some states the assessor may demand a sworn list of property, and in others the law requires the property holder to furnish such a list. The effect thereof, when furnished, necessarily depends on the wording of the several statutes. Thus in Massachusetts, when such a list is exacted, the assessors can not add thereto without notice to the person furnishing it. Moors v. Boston St. Commissioners, 134 Mass. 432. In Minnesota additions may be made by the assessor. Thompson v. [369] Tinkcom, 15 Minn. 295 (Gil. 226). As seen in this1 state, the list is made up by the assessor with the assist-: anee of the owner and each is made responsible for its correctness — the assessor because of his official duty and the owner by his oath. The proceeding is in no sense adversary, but necessary and indispensable to the determination of the exact share each property holder should take and may be supposed to be desirous of taking in meeting the public necessity for revenues. 1 Cooley on Taxation, 595. There is no provision for an appeal fromj the assessor, nor is any required, for nothing he does inj the way of listing „ property is final. Until examined in . detail and approved by the board of review, the assess- ¡' ment is of no validity as the basis of a tax levy. Section { 1366, Code. It is^the sanction of the board that fixes the valuation of the several items as quasi judicial findings, and these are subject to review on appeal. Section 1370 of the Code provides that the board of review “shall adjust assessments for the township, city or town by raising or lowering the assessment of any person, partnership, corporation or association as to any or all of the items of. his assessment, in such manner as to secure the listing of property at its actual value and the assessment of property at its taxable value, and shall also add to the assessment rolls any taxable property not included therein, assessing the same in the name of the owner thereof, as the assessor should have done.” Section 1371: “The clerk or recorder of the township., city or town, as the case may be shall be clerk of the board of review, and keep a record of its proceedings, and the assessor shall be present at its meeting and make upon the assessment rolls all corrections or additions directed by the board. At such meetings it shall be the duty of the assessor to read each and every taxpayer’s name and assessment on [370] J the assessor’s books, and, if the assessment is approved, pass to the next name. After checking the same, the board shall then take np the unchecked names in alphabetical order, and. raise or lower the same as in their opinion will be just; checking off each taxpayer as the same is adjusted.” The effect of this statute is to refer jto the board of review the name of every taxpayer and (his assessment for its approval or disapproval. Section '¡1372 prescribes the notice to be given of assessments raised and of property added, and provides for an opportunity of being heard with reference thereto. Section 1373 of the Code Supplement of 1907 defines the procedure by which any one aggrieved by the action of the assessor in assessing property (not in omitting it) and of the board in raising the assessment or adding property may be reviewed. Any officer of the several municipalities interested or any taxpayer therein is authorized to make complaint with respect to the assessment of any property, and may appeal from the .action of the board thereon. So that property may be added to the assessment roll on the motion of the board or on the complaint of an officer or taxpayer, regardless of how it came, to be omitted. It is the order of the board of review, if not ¡appealed from, which is final, and the statutes will be «searched in vain for suggestion that the action of the ¡assessor is a finality as to anything save in correcting «the assessment rolls as directed so as to appear as approved by the board of review. The assessor is not required to report to the board of review property not assessed or thought by him to be nonassessable. Is it possible that his act in omitting it from the assessment roll, if. voluntarily done, is clothed with the sanctity of a solemn adjudication, even though the completed roll until approved .by the board of review is not regarded as an assessment .roll upon which taxes may be levied? Decisions of the courts of New York and New Ilamp [371] shire are sometimes cited as so holding. See Barhyde v. Shepherd, 35 N. Y. 238; Boody v. Watson, 64 N. H. 162 (9 Atl. 794). In New York three assessors are elected in each town or ward of a city. They, by mutual agreement, divide the same into convenient assessment districts, and then proceed to ascertain by “diligent inquiry” the names of all the taxable inhabitants in their respective towns or wards and also all the taxable property, real and personal, within the same. When the assessment roll is completed, it is left with one of their number and public notice given it has been completed, where to be found and that on the third Tuesday in August at the designated place the assessors will meet and review the assessments, then hear and pass on all complaints, and, save for manifest errors to- be corrected by the board of supervisors, their decision appears to be final. See part 1, chapter 13, title 2, article 2, 1 Rev. St. New York (1st. Ed.). The decisions of that state disclose that the acts of the assessors declared to have been judicial in character were of the assessors sitting as a board of review. In Boody v. Watson, supra, the property had heen declared exempt by a board known .as the selectmen of the town, and the reference to the assessment was that of this body.) We have been unable to discover any decision holding that the duty of merely listing for assessment is quasi t judicial in its nature. In Van Wagenen v. Supervisors, 74 Iowa, 716, the stock had been assessed, and the assessment approved by the board of review. Moreover, it was taxable as has since been held. Judy v. Beckwith, 137 Iowa, 24. All decided in German Savings Bank v. Trowbridge, 124 Iowa, 514, was that property assessed and on the tax list could not be assessed again by the county treasurer. The point was not touched in Ind. School Dist. v. Board, 131 Iowa, 195. On the other hand, authorities are not wanting which [372] proceed on the theory that the functions of the assessing officer are ministerial. Baldwin v. Shune, 84 Ky. 512, (2 S. W. 164); Vandercock v. Williams, 106 Ind. 345 (1 N. E. 619, 8 N. E. 113); Auditor of State v. Railway, 6 Kan. 500 (7 Am. Rep. 575); Mayor, etc., of City of Baltimore v. Bonaparte, 93 Md. 156 (48 Atl. 735). See State Board of Equalization v. People, 191 Ill. 528 (61 N. E. 339, 58 L. R. A. 513). Some courts in construing particular statutes have held that in fixing values on taxable property the assessor acts judicially. See Stewart v. Cash, 53 Minn. 62 (54 N. W. 938, 39 Am. St. Rep. 575). But the point has never been before this court, though it has been remarked that the making of an assessment is a quasi judicial function. See Security Savings Bank v. Carroll, 128 Iowa, 230; Berestein v. Arnd, 117 Iowa, 83. The assessments referred to in these cases were those appearing in the tax list, and therefore after approval by the board of review. Whether in the preliminary work of making up the assessment roll every item of which must be read to and approved by the board of review any act of the assessor can be said to be final or conclusive in a subsequent review is, to say the least, extremely doubtful. But we are now concerned only with the act of omitting property from the assessment roll; and, as seen, the | circumstance that he has intentionally done this interposes J. no obstacle to its subsequent assessment by the board of * review. Other statutes expressly authorize its assessment, (if ignored, by,both the board of review and assessor, and thereby plainly indicate the legislative intention that a f finding by the latter should not be regarded as quasi | judicial in character. Section 1385b, Code Supp. 1907.-“The auditor may correct any error. in the assessment or tax list and may assess and list for taxation any omitted property; hut, before assessing and listing for taxation any omitted property, he shall notify by registered letter [373] the person, firm, corporation or administrator, or other person in whose name the property is taxed, to appear before him at his office within ten days from the time of said notice and show cause, if any there be, why such correction or assessment should not be made, and should such party feel aggrieved at the action of ■ said auditor*, he shall have the right of appeal therefrom to the district court.” Is taxable property any the less omitted from the assessment roll when the assessor has been told of its existence on the street -or in private conversation, and renders his opinion that it is not taxable, than when it is left off the assessment roll through oversight or ignorance of its existence? What is meant by omitted? Webster’s Dictionary says to omit means “to let fail, to leave out, not to insert or name.” The Century Dictionary: “To fail to use or to do; neglect; disregard; to fail, forbear, neglect to mention or to speak of; leave out; say nothing of; to leave out; forbear, fail to assert or include, as to omit an item from a list.” The Standard Dictionary: “To fail to include, insert or mention; leave out; pass over; overlook; drop, as to omit an important fact.” The cause of omission is not suggested in this statute, so that, if for any reason taxable property has been “left out” of the assessment roll by the assessor, it is subject to assessment by the auditor. Still another officer is authorized to assess property which has not reached the assessment roll. Section 1374 of the Code provides that: “When property subject to taxation is withheld, overlooked, or from any other cause is not listed or assessed, the county treasurer when apprised thereof, at any time within five years from the date at which such assessment should have been made, shall demand of the person, firm, corporation or other party by whom the same should have been listed, or to whom -it should have been assessed, or of the administrator thereof, the amount the property should have been [374] taxed in each year the same was so withheld or overlooked and not listed and assessed, together with six percent interest thereon from the time the taxes would have become due and payable had such property been listed and assessed, ' and upon failure to pay such sum within thirty days, with all accrued interest he shall cause an action to be brought in the name of the treasurer for the use of the proper county, to be prosecuted by the county attorney, or such other person as the board of supervisors may appoint, and when such property has- been fraudulently withheld from assessment, there shall be added to the sum found to be due a penalty of fifty percent upon the amount which shall be included in the judgment. The amount thus recovered shall be by the treasurer apportioned ratably as the taxes would have been if they had been paid according to law.” The above language would seem to be broad enough to include all taxable property which has not been listed for taxation. Again, resorting to the • lexicographers, we find that Webster’s Dictionary defines “withhold” as meaning “(1) to hold back; to restain; to keep from action; (2) to retain; to keep back; not to grant.” The Century Dictionary says it means “to hold back; keep from action; to keep back; refrain from going, giving.” Plainly enough by taxable property withheld is meant property held or kept from being entered on the assessment roll. This may have been done by the person owning or controlling the property, whose duty it was to assist the assessor, or by that officer in not listing property to which his attention was directed. As the duty of entering on the assessment roll devolves on the assessor, there is as much reason for saying that the language of the statute applies to him as to the person whose property 'is assessed. The statute does not undertake to point out who may be at fault in withholding from assessment, but plainly covers all property voluntarily or purposely not listed on the roll. This view is • emphasized [375] by the addition of the word “overlooked.” Webster’s Dictionary defines “overlook” as meaning: “To look beyond so that what is near by is not perceived; to omit to see by looking at other obj ects; to neglect by carelessness or inadvertence; to pass by. (2) Hence, to refrain willingly from noticing; to excuse, to pardon.” The Century Dictionary: “To look beyond or by so as to fail to see or so as to disregard or neglect; pay no attention to; disregard; hence, to pass over indulgently; excuse, forbear to punish or censure.” The Standard Dictionary defines the word as meaning: “To look over, by or beyond, so as to avoid seeing; disregard purposely; forgive; condone; to fail to see, notice or observe; disregard negligently or accidentally; slight; as he overlooked the papers in a hurry.” Manifestly it was intended to cover by the word “overlooked” all property omitted because, not noticed or disregarded by the owner or assessor whether due to neglect, accident, inattention, or indulgence. These words would seem to cover every possible contingency; but out of abundance of caution the Legislature added to what preceded — i. e., “When property subject to taxation is withheld, overlooked” — the clause “or for any other cause is not listed and assessed.” The evil to be remedied was the escape of property from taxation because of being omitted from the tax lists. Prior to its enactment there was no remedy after the tax lists had been completed, and such as was afforded prior thereto was inadequate. The manifest design was to provide an adequate remedy by which all omitted property might be subjected to its proper share of the public burdens and to render this available within the reasonable period of five years. It has been suggested that the rule of “ejusdem generis” has some place in the construction of ■ this statute. If this be conceded and that “other cause” be “narrowed and restricted” to causes like those expressed in “withheld” or “overlooked,” it would be well to indicate some [376] of like causes. Wbat other taxable omitted property could there be save that which was overlooked, and that which was not overlooked, but was withheld from the assessment roll? The statute does not undertake to designate the cause of being “withheld, overlooked” so that the -words “other cause” must refer to the manner of the omission from the list, and, even if such manner of omission must be of like kind, a contingency not covered thereby can not be imagined. The language of the Supreme Court of Indiana in a somewhat similar case is especially pertinent: “The tax law contemplates instances of omission of property from current lists, not only on account of evasions and concealments of property owners, but also by reason of derelictions of the' officers' upon whom rests the primary duty of listing all taxables. It is conceivable that, if the primary taxing officers were infallible, there would be no instances of omitted property. Yet so careful is the state to guard against loss to its' revenues from the remissness of those officers that four different officers are each commanded to look after the state’s continuing claim for taxes from property omitted from assessment in any year, or number of years and from any cause. Nothing will discharge the state’s claim but actual payment, and the general law must be liberally construed in aid of the taxing power. Graham v. Russell, 152 Ind. 186 (52 N. E. 806), and cases cited; Burns’ Ann. St. 1894, section 8642 (Horner’s Ann. St. 1897, section 6491). But no construction, however strict, would require the officers in listing omitted property to pass by the property of corporations when the statute empowers them to list any omitted property, or to overlook omissions resulting from the fault or inaction of the primary listing agents, when, the statute directs them to list omitted property from any cause.” Hunter Stone Co. v. Woodard, 152 Ind. 474 (53 N. E. 947). The primary duty of assessing is imposed on the assessor and board of review. That any [377] property may have escaped their notice, or been purposely omitted by the assessor and not brought to the attention of the board of review, does not render such property any the less taxable, nor relieve its owner of his obligation to bear his proportional share of the governmental burdens. In dealing with vast amount and varieties of valuables omission of considerable is inevitable. If such omission is discovered within a reasonable time, it ought not to escape taxation. To meet such a contingency, the duty of assessing omitted property is imposed on the county auditor and treasurer; the latter being authorized so to do at any time within five years. This works no hardship on owners, and circumstances seldom, if ever, are such as to justify a special plea for the construction of the assessment statutes in their interest. The law in every instance requires notice to the owner and an opportunity to be heard before adding omitted property, and the owner is in no wise injured by the belated assessment for no penalty save where fraud has been perpetrated is imposed, interest being added at the lowest legal rate. Of course, property declared nontaxable by a trib- / unal on which authority to decide has been conferred is/ not omitted property within the meaning of the law foi it has been adjudged otherwise. Our statutes, as seen, contemplate no such adjudica- j tion, save on notice and hearing, and neither are provided] with respect to anything exacted of the assessor. If, not-, withstanding his rulings, the board of review discovers that through mistake, partisanship, corruption, or ignorance these have been erroneous in leaving taxable property off the roll, the board of review may add it. This is not]!; owing to any appeal from the assessor, but for the reason ij that the assessor’s findings are not binding on that body, ij as they were not intended by the Legislature to be on the ¡‘ county auditor or treasurer. If the property is listed and no objection thereto is raised before that board, unless [378] changed by it, such listing is treated as approved, and can not thereafter be assailed as not assessable. This is because of having been brought before the board where a hearing is authorized, and not owing to the assessor’s decision in having entered it on the assessment roll. Property neither listed nor brought to the attention of the board has not been the subject of a hearing, nor has the owner been put in a situation to demand it. The functions of the county treasurer and auditor in the matter fj of adding omitted property are like those of the board | of review. An appeal may be taken > from the findings ' precisely as from those of the board. y^That the procedure before the auditor and treasurer witli reference to property omitted by the assessor is substantially like that before the board of review is convincing that the findings of the assessor were intended to be no more conclusive on the auditor or treasurer than on the board of review.^ f The authority to determine finally what property is tax- ! able must be lodged somewhere, and the statutes have ■ plainly indicated that such final authority has been imposed on the board of review first, and thereafter as to property not called to its attention on the county auditor or treasurer subject' to appeal to the courts. Only by giving to the statutes cited a construction not justified by the language employed and contrary to the manifest purpose of the Legislature can any other conclusion be reached. That adopted will wrong no man. It will deprive no one of his property without a hearing. It will subject no one to a second trial of the same issues. It will result in the taxation of no taxable property which ought not to be taxed. It will defeat, and it ought to defeat, the successful interposition of a plea of former adjudication in proceedings for the assessment of omitted property by the county auditor or treasurer by the evidence of an assessor that he can not remember, and of the owner that he can [379] remember of having submitted the question of its taxability privately to such official. We are of opinion that the finding of the assessor that ' the claims were not assessable was not conclusive, and was no obstacle to the subsequent assessment by the county treasurer. — Affirmed.