The suit is prosecuted by the collector of Linn county to recover taxes for the years 1883, 4, 5, 6 and 7, alleged to have been levied by the county court for payment of interest upon railroad aid bonds of Jefferson township, in Linn county, and for creating a fund with which to pay the principal at their maturity. The petition contains five counts, one for the taxes of each year, and is drawn substantially after the form prescribed for such suits by what is now section 7742, Revised Statutes, 1889. In each count it is charged that the tax became delinquent January 1, 1888.
Defendant, by its answer, admitted its incorporation, pleaded charter exemption from taxation, and that, by a former judgment of the circuit court of Linn county, rendered in 1879, the county court had been restrained from levying a tax to pay either principal or interest on said bonds. In this plea defendant stated the date of the alleged indebtedness to have been August 3, 1868. The plea was stricken out, on motion of plaintiff, and defendant saved no exception thereto.
Plaintiff then read the several certificates of the state auditor, showing the valuation at which the property was assessed for each year.
To support the first four counts plaintiff read an order of the county court of Linn county, dated July 5, 1887, requesting the prosecuting attorney of the county to apply to the judge of the circuit court for an order directing the levy of the taxes. This order recited as a reason for the levy that said county court “undertook to, and did levy a tax, on all taxable property in the township,” for said years, but stated further that it was “satisfied that said levies herein before mentioned, and each of them, was illegally and erroneously made by this court because of the failure of this court to comply with the requirements” of the statute making a levy for such taxes conditional upon an order of the circuit court or judge. In pursuance of this order the prosecuting attorney petitioned the circuit judge who, under date of July 6, 1887, made the order requiring the county court to make the levy. The petition and orders were read in evidence.
Plaintiff then read in evidence an order of the circuit judge March 23, 1887, reciting a petition of the prosecuting attorney, and directing the levy of a special tax to pay interest on said township bonded indebtedness, and to create a sinking fund for the year 1887. At the August adjourned term, 1887, of said county
Defendant read section 24' of its charter which provides that the “stock of said company shall be ■exempt from state and county taxes.”
The court refused to declare the law as requested by defendant that “the order of the county court dated November 5, 1887, read in evidence purporting to levy taxes for the years 1883, 4, 5, 6, is unauthorized in law and void as a levy of taxes for those years,” but did declare the law to be, that upon the pleadings and’ evidence the judgment must be for plaintiff.
Judgment was rendered for plaintiff on each count ■and defendant appealed.
I. The objection, urged by the defendant in the circuit court, that the township tax, sued for in this action, is really and in law a part of the county tax, and as such could not be charged against its property under the exemption therefrom contained in its charter, was settled in a recent decision of this court adversely - to defendant’s contention, and is not. seriously insisted upon here. State ex rel. v. Railroad, 101 Mo. 149. In this decision it was distinctly held that a township tax to pay bonds issued in aid of a railroad was not a county tax within the meaning of the exemption from county taxation contained in defendant’s charter.
II. The question of most serious difficulty in the •case respects the effect of the order of the county court in levying the taxes for the years 1883 to 1886, both inclusive, under the direction of the circuit judge, given long after the time srithin which the levy should have been made under section 6879 of the statute of 1879. .It was recently held by this court in State ex rel. v.
Since the foregoing decision, however, the statute (sec. 6799, et seq.) which requires the order of the circuit court or judge to authorize the county court to levy taxes for paying this class of indebtedness, has been declared unconstitutional by the supreme court of the United States, at least so far as they apply to a levy of taxes to pay township bonds issued prior to 1879, the date at which said sections were enacted. Seibert v. Lewis, 122 U. S. 284; see also State ex rel. v. Railroad, supra.
The evidence in this case gives no intimation of the date of the bonds of Jefferson township for the payment of which this levy was made. The plea of estop-pel made by defendant, it is true, fixed the date at a period long prior to the date of the statute, but this plea was stricken out on motion of plaintiff, and the statements contained in it were not read in evidence or preserved by exceptions, and cannot therefore now be used as an admission. We think, however, that courts can presume that an act was done prior to a period after which it could not lawfully have been done. The
It is true that counties are, under laws of 1879, chapter 83, empowered to compromise pre-existing township bonded indebtedness and issue renewal bonds in lieu thereof, but it does not appear in this case that the bonds of Jefferson township were issued for such purposes.
The order of the circuit court not being required to authorize a levy by the county court, the reference by the latter to the order of the circuit judge, as giving authority, can be altogether rejected as surplusage, and enough of the order levying the tax for the omitted years will remain to constitute a valid levy.
III. The statute, providing specially for the collection of taxes upon railroad property, makes no provision for issuing tax bills, such as the one read in evidence, and we do not think it necessary to inquire here, whether the general provision contained in section 7682, under article 6, Revised Statutes, 1889, concerning the collection of back taxes on real estate, authorized it. If the tax bill was not admissible, then the statute is silent as to the manner of proving the liabil
If error was committed in admitting the tax bill in evidence, it was not one that could have changed the result and should not reverse the judgment. Revised Statutes, 1889, sec. 2303; Valle v. Picton, 91 Mo. 215.
IY. It is insisted that the taxes for 1883, 4, 5 and 6, sued for in the first four counts were not levied at the ■ same time that the county court levied other taxes on the same property, for the year .1887, as required by the statute authorizing the levy, and for that reason the levy is void.
Section 7731, Revised Statutes, 1889, provides that, “in case the county court has failed or omitted, or may hereafter fail or omit, from any cause .whatever, to levy the taxes, or any portion of the taxes, for any year or years, or in case the taxes or any portion of the taxes for any year or years shall have been illegally or erroneously levied,, then said court, at the time of making the regular levy upon railroad property as herein provided, shall, in addition thereto, ascertain and levy the taxes * * * for municipal township * * * purposes, on the railroad and the property thereof, in such * * '* township * * * which may have been or may hereafter be omitted or illegally or erroneously levied upon the valuation of the railroad
The correctness of the principle announced in this, and other cases to the same effect, is not controverted, and yet we are of the opinion that the power granted the county court to go back and levy taxes for past years, which had been omitted, did not unconditionally depend on its being exercised on a particular day or occasion. The property was subject to taxation under the constitution. An assessment, including a description of the property and its valuation, had already been made. The rate at which it should be taxed had previously been fixed by the court. These are the substantial steps in the process of taxation. There was only left to the county court the duty of making the formal order, declaring the property, at its ascertained valuation, bound for a tax at a fixed rate. This it had power to do, at a regular adjourned or special term of court. To hold that this formal act could only be done at the
4 4 "When statutes direct certain proceedings to he done in a certain way or at a certain time, and a strict compliance with these provisions of time and form does not appear essential to the judicial mind, the proceedings are held valid, though the command of the statute is disregarded or disobeyed.” In such case the statute is said to be directory. Sedgwick on Construction of Statutory and Constitutional Law, pp. 316, 317, 318; Dwarris on Statutes, 608-611; Beck v. Allen, 58 Miss. 156; Counties v. Railroad, 65 Ala. 394; Pond v. Negus, 3 Mass. 230; Williams v. School District, 21 Pick. 75. The legislative power expressly existing, and the manifest purpose being merely to correct an error, or supply an omission of the county court, we must hold that the date, or occasion named by the statute for exercising the power, was directory only and the levy, made November 5,1887, was a valid exercise of the power.
The foregoing are the substantial grounds urged for reversal of the judgment. A number of other minor questions were discussed which cannot be examined here in detail. We have considered them all and find nothing in them that should change the result. The judgment is affirmed.