This suit was brought to recover an *148alleged balance of taxes due from defendant for the-years 1876,1877,1878, and 1879. Plaintiff obtained judgment in the circuit court, from which, defendant has appealed.
It appears fro.m the record before us that the prop-erty of defendant, on the first day of August, 1875, was assessed in May, 1876, by the state board of equalization, in pursuance of section 7, acts 1875, page 120; that, after the completion of the work by the board, the state-auditor certified its action to the clerk of the .county court of Pettis county, setting forth the description, valuation, and location of all of defendant’s railroad property in said county as assessed, equalized, and apportioned by said board to said county, and the various-townships, cities, and incorporated towns therein, and the amount of taxes due the state upon such property in. said county. It further appears that the county court, in levying taxes upon the property thus assessed, and its value as ascertained by the state board, levied the-rate of taxes which had been levied on general property owned by individuals on the first day of August, 1874,. instead of the rate levied upon property owned by individuals on the first day of August, 1875..
This was an erroneous levy under the ruling of this-court in the case of State ex rel. Pettis Co. v. Union Trust Co., 68 Mo. 463, where it is held that the tax year extends from the first day of August in one year to the-first day of August in the ensuing year; and that in-levying taxes on railroad property the same rate must be-applied to it as is applied to general property.
Under the revenue law, as it stood in 1875, it is-made the duty of the county assessor, between the first day of Augustin each year, and the first day of January, to assess for taxation property owned by individuals on the first day of August of each year, and return his assessment to the county court by the twentieth of January, whose duty it is to meet .in - April thereafter,- *149and equalize the valuation of the property, and, as soon as may be, fix and levy the rate of taxes thereon. The taxes thus levied are required to be paid by the thirty-first of December of the year in which they are levied, so that, as to individual property owned on the first day of August, 1875, and assessed for taxation, the tax, when imposed, is for the year 1876. While the county court of Pettis county pursued the law in levying taxes on individual property owned on the first day of August, 1875, it failed to do so in levying taxes on the railroad property owned by the defendant on the first day of-August, 1875, but levied taxes thereon at the rate which it had levied on general property owned on the first day of August, 1874. Notwithstanding this illegal levy, defendant paid the tax thus imposed.
To correct the mistake thus made the county court, in 1879, by virtue of section 2, acts 1879, page 175, treated the levy thus made as a nullity, and levied upon the property owned by defendant the same rate which it had levied on property owned by individuals on the first day of August, 1875, thus making it the tax for 1876 ; and it is for an alleged balance of this tax due by defendant for which plaintiff sues in the first count of the petition.
It further appears that, on the assessment made by the state board in 1877, of the property owned by defendant on the first day of August, 1876, the county court, instead of levying the same rate of taxes which it had levied on individual property owned on the first day of August, 1876, levied the rate which had been levied on individual property owned on the first day of August, 1875. The taxes thus levied were paid by defendant and in the receipt given were designated as the taxes of 1876, when, under the ruling of this court in the case of State ex rel. Pettis Co. v. Union Trust Co., supra, if the proper rate had been levied, the tax should have been designated as the tax of 1877, and not that of 1876. In 1879 the county court, to correct the mistake, treated *150said levy as a nullity and levied upon the property of defendant owned on the first day of August, 1876, the same rate of taxes which it had levied on property owned by individuals on the first day of August, Í876 ; and it is for the recovery of an alleged balance of their tax for which plaintiff sues in the second count of the petition.
It further appears that, on the assessment made by the state board of equalization in 1878, of the property owned by defendant on the first day of August, 1877, the county court levied thereon, for the taxes of 1878, the same rate which had been levied on other property for the year 1878; and it is for the whole of the taxes thus levied for which plaintiff sues in the third count of his petition.
It further appears that, on the assessment made by the state board in 1879, of the property of defendant owned on the first day of August, 1878, the county court levied a tax for the year 1879 ; and it is for an alleged balance due by defendant on this tax for which plaintiff sues in the fourth count of the petition.
It appears from the record before us that defendant paid taxes on the property owned by it on the first day of August, 1875, not at the rate imposed upon general property owned by individuals on the first day of August, 1875, but at the rate levied on property owned by individuals on the first day of August, 1874. While the tax paid by individuals on property owned by them on the first day of August was called, and properly called, the tax for 1876, the tax paid by defendant on property owned by it, on the first day of August, 1875, was improperly called the tax of 1875.
One of the controlling questions arising on this state of facts is, whether the tax paid by defendant on the improper levy made by the county court on the property owned by defendant the first day of August, 1875, should be applied as a credit on the tax levied by *151the county court on defendant’s property owned by it on the first of August, 1875, and which, is sued for in the first count of plaintiff’s petition. It is contended by defendant that it should be so applied, inasmuch as under the ruling of this court, in the case of State ex rel. v. Union Trust Co., supra, the property owned by defendant on the first day of August, 1875, could only be taxed for the year 1876, at the same rates and terms that general property was taxed for said year.
It is clear, we think, that the assessment by the state board in 1876, of property owned by defendant on the first day of August, 1875, only authorized the county court under the existing laws to levy taxes thereon for the year 1876. Such is unquestionably the rule as to all property owned by individuals, the only difference being that in the one case the assessment and valuation of property is made by the county assessor, and in the other by the state board of equalization. In. each class of cases it is only the property owned on the first day of August each year which is assessed and valued for taxation, upon which valuation taxes are to be levied and collected in the ensuing year.
All the confusion in this class of cases has arisen from the practice which prevailed in some of the counties of the state, previous to the decision in the case of State ex rel. v. Union Trust Co., supra, in making a distinction as to the rate to be imposed on railroad property and other general property, and calling the tax imposed on railroad property the tax of one year, and that imposed on general or individual property the tax of another year. Inasmuch as a tax on defendant’s property owned on the first day of August, 1875, as assessed by the state board in 1876, could only be legally imposed for taxes of 1876, and inasmuch as the tax levied in the first instance upon the valuation of said property was levied at the wrong rate, but, nevertheless, was paid by the defendant, the defendant is entitled to the benefit *152of such payment by having it credited on the tax sued for in the first count of the petition. The tax so illegally levied and collected were taxes for the same period of time, the same tax year and the same revenue purposes as the taxes which were levied and collected from general or individual property for the same tax year, from August 1, 1875, to August 1, 1876, and ought not to be diverted to any other tax year.
What is here said with respect to the application of credits applies not only to the first count of the petition, but to all the counts. As- the circuit court tried the case as to the application of credits for payment .of taxes levied at the wrong rate on proper assessments, on a theory in opposition to the one above indicated in this opinion, the judgment will be reversed.
It also appears that the county court, in 1879, in levying the taxes sued for in the first and third counts of the petition, levied certain taxes to pay interest on certain railroad bonds without having first complied with section 6799, Revised Statutes. In the case of State ex rel. v. Railroad, 87 Mo. 236, it is held that, inasmuch as such taxes as the above are not levied for current county expenditures, that such levy is void, unless made in pursuance of said section 6799.
It is claimed that the power of the county court to levy the taxes sued for in the first three counts of the petition is to be found in section 2, acts 1879, page 175, which, among other things, provides as follows : “And 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 state, county, municipal township, city, incorporated *153town, and for school purposes, on the railroad and the property thereof in such county, municipal township, •city, and incorporated town, which may have been or may hereafter be omitted, or illegally or erroneously levied upon the valuation of the railroads and property thereof, as returned by the state board of equalization for such year or years, at the same rates that were levied ■on other property for the year or years for which said taxes were omitted, or illegally or erroneously levied.”
Assuming this statute 'to be constitutional without discussing it, it is clear that before the power which it confers upon the county court can be called into exercise, it must appear that the court, for some year or years, had either omitted to levy any taxes, or had levied for some year or years illegally or erroneously. It appears in this case that on the valuation of defendant’s property, owned on the first day of August, 1875, 1876, and 1877, respectively, that the county court did not omit to levy taxes, but did levy taxes thereon illegally or erroneously at the wrong rate, and hence one- of the conditions calling into exercise the power which the. county court exercised in 1879, in levying taxes on the defendant’s property,-as assessed in the various years above mentioned^
But in exercising this power the court could only do so in the way and manner provided by sections 6798 and 6799, Revised Statutes. It Is admitted that, as to the items of tax to pay interest on railroad bonds sued for in the first and third counts of the petition, that said section 6799 was not complied with, and under the ruling in the case of State ex rel. v. Railroad, supra, the levy of said taxes was a void levy, and no recovery can be had therefor and for that reason.
This construction does not give to the act in question, as counsel contend, a retroactive or retrospective operation, because all the former levies relating to defendant’s property were erroneously made and were *154treated as nullities, and whatever of validity is attached to the levy of taxes sued for is not founded on any order made by the county court levying a tax on defendant’ s property prior to 1879, but to the order making the levy for the first time in 1879.
The case of the State ex rel. v. Rainey, 74 Mo. 229, relied upon by plaintiff’s counsel, only decides that section 6799 did not refer to taxes “which had been levied prior to the time the act was passed, and which were in process of collection.” In the case before us the tax was not levied until after the passage of the act, and it is only because of the fact that no legal levy of taxes had been inade prior to 1879, that the county court had any power to levy any taxes at all for the year mentioned in the pétition.
It further appears that, in levying taxes for school purposes on defendant’s property, that the mode pointed out by section 12, acts 1873, page 65, which corresponds to section 6880, Bevised Statutes, was pursued. That section is as follows: ‘‘ For the purpose of levying school taxes in the several counties on the roadbed, rolling stock, and movable property, of railroads in this state, the several county courts shall ascertain from the returns in the office of the clerk of the county court the average rate of taxation levied for school purposes by the several local school boards or authorities of the several school districts throughout the county. Such average rate shall be ascertained by adding together the local rates of the several school districts in the county, and dividing the sum thus obtained by the whole number of districts; and shall cause to be charged to the said railroad companies school taxes at said average rate on the proportionate value of said railroad property so certified to the county court by the state auditor under the provisions of this article; and the said clerk shall apportion the said school taxes so levied and collected *155among all the school districts in this county in proportion to the enumeration returns of each district.”
It is claimed by counsel that said section is violative of section 11, article 10, of the state constitution, and the fourteenth amendment to the constitution of the United States. Before we can be justified in declaring an act of the Gfeneral Assembly unconstitutional its unconstitutionality must be made clearly and certainly to appear.
It is provided by said section 11, article 10, among other things, that “for school purposes the annual rate on property shall not exceed forty cents on the one hundred dollars valuation.” The statute in question would only be violative of said section in the event of the average rate exceeding the limit prescribed in said section, and even in that case only to the extent of such excess. The first section of the fourteenth amendment to the constitution of the United States provides, among other things, as follows: “Nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”
Wherein said section 12 of the act of 1873, supra, is in conflict with the above constitutional provision has not been made clear to us. It is certainly within the power of the legislature to authorize the imposition of taxes for school purposes on the property of defendant, and considering the nature of its property, and the fact, as stated in 78 Mo. 596, “that the roadbed is chiefly valuable as an entirety,” that its aggregate value is made up because of its continuity, that the portion of a railroad in a county, when considered as disconnected with a continuous line, in most cases would be of little or no value, considering these things in connection with the further fact that the rolling stock of defendant, constituting a large and valuable part of its property, cannot be localized in any one county, it *156being, from its very nature, constantly changing from •one county to-day and another to-morrow, we cannot say that said section 12 is violative of the fourteenth .amendment, inasmuch as under the construction we put upon it the average rate to be applied to defendant’s property must not exceed the limit prescribed in the •constitution.
In In re Apportionment of Taxes, 78 Mo. 596, it is held that said section 12, so far as it authorized the apportionment of school taxes levied and collected according to the mode therein prescribed, was constitutional. While the constitutionality of the section, as to the mode prescribed for levying school taxes, was not directly passed upon conclusively, that it is not obnoxious to the constitution follows as a corollary from what was decided.
It is also claimed that said section 12 of the act of 1873 was repealed by the act of 1875 (Acts 1875, p. 119). The act of 1875 is only amendatory of certain designated sections of the act of 1873, of which section 12 of the latter-named act is not one. This section is neither expressly repealed, nor is it repealed by necessary implication, inasmuch as there is no reconcilable conflict between said section 12 and the said act of 1875. The same legislature, at the same session, and within a few days after the approval of the said act of March 15, 1875, passed an act to amend said section 12 of the act of 1873, which is a legislative construction of the act of March 15, 1875, showing that it was not intended by said act to repeal section 12 of the act of 1873.
The question of an omitted or lost year in the taxation of railroad property is discussed in the briefs of counsel, but we only deem it necessary to say of it that if there is such a year it is not embraced in any of the years for the taxes of which plaintiff is suing.
Judgment reversed and cause remanded.
All concur.