This is a suit instituted by the tax collector of Pike county to recover of defendant certain taxes assessed for the year 1891. The assessment covers all the ordinary items such as taxes for state, county, schools, etc., and also an item of $958.67 as “Buffalo Township Tax,” and one of $1,219.55 as “Cuivre Township Tax.” Defendant paid all the assessments except these two items, which it refused to pay except in the manner presently mentioned, and this suit is to recover those items with statutory interest.
The answer admits that defendant was the owner of the property sought to be taxed and that the taxes were assessed as alleged in the petition. But it avers that the assessment was made by the county court without authority to do so, because the tax was for the payment of township bonds issued after 1879 and after the statute, which became sections 7653 and 7651, Revised Statutes 1889, had become the law, and the requirements of those sections were not complied with. The first of those sections provides for the assessment of taxes for state, county, school, etc., and the second limits the power of the county court in making other assessments, requiring *603that before a tax for any other purpose is levied, an order of the circuit court must be obtained. The answer also pleads “that the order of the county court of Pilce county directing said levy was not made pursuant to section 7731, Revised Statutes 1889; that said county court did not make the necessary order or orders for the levy of said tax and the necessary entry or entries thereof on the records of said court; and that after the attempted levy thereof the clerk of said county court did not enter the same on a separate tax-book, known as the railroad taxbook, as required by law and in manner and form as prescribed by section 7733, Revised Statutes of 1889, and did not deliver said taxbook to the collector as provided by section 7735, Revised Statutes of 1889.”
And for further plea it is averred that on December 10, 1894, defendant being then the owner -and holder of two warrants issued by the county court of Pike county in May, 1893, one for $1,222.90, payable out of any money in the treasury to the credit of the Cuivre township fund, and the other for $947.70, drawn payable out of the Buffalo township fund, tendered those warrants to the tax collector, together with sufficient money to make them equal in amount to the taxes for those two townships, respectively, for 1894, in payment thereof, but the tender was refused.
The defendant has kept that tender good and renews it in his answer, protesting, however, that the tax demanded is illegal, and that the tender is made in a spirit of compromise. The answer then pleads the two warrants above mentioned as counterclaims and prays judgment against the county on the same, payable out of the respective township funds mentioned. The reply joins issue on the averments in the answer. The cause was tried by the court, jury waived.
The evidence showed that the county court, on March 6, 1893, made an order which was entered on its record, reciting that the court was “satisfied that a necessity existed for the assessment, levy and collection of other taxes than the state *604tax and. the tax necessary to pay the funded or bonded debt of the State, the tax for current county expenditures and for schools, and requested the prosecuting attorney of the county to present to the circuit court of Pike county, or to the judge thereof in vacation, a petition asking that an order be made by the judge of the circuit- court for the assessment, levy and collection of such other tax or taxes as the circuit court or judge thereof may become satisfied should be assessed, levied and collected.” A petition was accordingly presented by the prosecuting attorney to the circuit judge in vacation, who made the order on which the county court founded its action in making the assessment for 1894, now in question. That order recited that the judge was satisfied that the necessity for such other taxes existed as follows: “A tax necessary to meet the outstanding obligations of Pike county, of Buffalo, Calumet, Cuivre and Peno townships on the bonded indebtedness of the same, together with interest thereon.” It then proceeds to order an assessment of seventy cents on the $100 valuation in Buffalo and Calumet townships, eighty cents in Cuivre and Peno townships, and ten cents in the county, and that the order was to be continuous for the purposes specified until set aside, etc.
The evidence showed that there was a book kept in the office of the county clerk, which was known as the railroad taxbook, into which the taxes in question assessed against the railroad were entered and that the collector gave a receipt to the clerk for the same. But the record is vague on these two points. The evidence also showed that- in 1892 a tax was assessed by the county court against the taxable property in the two townships mentioned, including defendant’s property, to pay the outstanding bonds of those townships. That the only authority, if any, for the assessment, was an order of the county court April 7, 1879, reciting that the bonded indebtedness of the county amounted to $180,993, bearing ten per cent interest, besides other county obligations, and requesting *605the prosecuting attorney of the county to present a petition to the circuit court for an order to make the necessary assessment. Such petition was presented and an order of the circuit court made directing an assessment on all the property in the county for the purpose of paying that indebtedness.
After the assessment of 1892 above mentioned was made, the bills for the same, amounting to $947.70 and $1,222.90 for Buffalo and Cuivre townships, were presented by the collector to the defendant and it paid them. Then in February, 1893, the defendant filed a petition in the county court representing that it had paid this tax and that it was illegal because there had been no order of the circuit court authorizing it, and prayed that it be refunded. Upon that petition the county court in May, 1893, ordered that the tax be refunded, and the warrants in evidence were issued for that purpose. These warrants, with a sufficient amount of money to make up the amount of the taxes here sued for, were tendered to the tax collector before this suit was brought, and the tender was refused.
The defendant.asked peremptory instructions for a verdict in its favor on plaintiff’s cause of action, and also on its counterclaims, and also instructions to the effect that the order of the county court of March 6, 1893, was not a sufficient compliance with the requirements of section 7654 to justify the judge of the circuit court in ordering the special tax assessment; that if the court should find that the county court failed to make an entry of the assessment on its records, or that after the assessment was made the clerk failed to enter it on a separate taxbook, known as the railroad taxbook, or if the court should find that the warrants were tendered in the manner hereinbefore mentioned, then the verdict should be for the defendant on the plaintiff’s cause of action. Instructions were also asked to the effect that if the above-mentioned warrants were found to have been duly issued and were due and unpaid, defendant was entitled to recover on them, re*606spectively, in tlie two counterclaims. Also that if it was found that in 1892 a tax was assessed against defendant’s property in these two townships,' Buffalo and Cuivre, for paying the bonded indebtedness of those townships, and the assessment was made without the proceedings required in section 7654, Revised Statutes 1889, and no order of the circuit court authorizing it, that the taxbills on such assessment duly certified were presented to the defendant by the tax collector and payment demanded and defendant paid the same on the faith of the taxbills and the demand, believing them to be true assessments, and that afterwards, in 1893, the county court ordered those taxes to be refunded and issued the warrants above mentioned for that purpose, and they are now owned by defendant and are due and unpaid, then defendant is entitled to have them set off against the plaintiff’s cause of action. Also an instruction that under the undisputed facts the taxes paid by defendant in 1892, for those two townships, were illegal and the county court was authorized to refund the same. All of which were refused. The finding and judgment were for the plaintiff on all the issues, and the defendant appeals.
I. The chief ground of objection made against the assessment of 1894 and that of 1892 is that they were not made in conformity to the requirements of section 7654, Revised Statutes 1889. As to the assessment of 1894, it is said in the brief for appellant that “the petition of the prosecuting attorney to the judge of the circuit court does not specify what taxes the county court requested the circuit court to order levied.” And it is also said that the order of the county court, requesting the prosecuting attorney to take action, does not specify the taxes to be levied.
Section 7654 first forbids the county court assessing any other tax than the state tax and to pay for the state funded or bonded debt, the current county expenditures and for schools, except as therein specified, and then proceeds to lay down a *607course to be followed when 'an assessment for other purposes becomes necessary. That course is for the county court, when it becomes satisfied that such additional assessment is necessary, to enter an order to the effect on its record, and request the prosecuting attorney of the county to petition the circuit court or judge in vacation to make an order-directing such assessment and levy. The language of the statute is that the county court “being first satisfied that there exists a necessity for the assessment, levy and collection of other taxes than those enumerated and specified in the preceding section,” shall enter on its records a request to the prosecuting attorney to petition the circuit court or judge, as above stated, and that the petition shall be so presented “setting forth the facts and specifying the reasons why such other tax or taxes should be assessed,” etc.; “and such circuit court or judge thereof, upon being satisfied of the necessity for such other tax or taxes, and that the assessment, levy and collection thereof will not be in conflict with the Constitution and laws of this State, shall make an order directed to the county court,” etc.
The statute does not in terms require the county court, in its order of request, to specify the taxes that are to be included in the order of the circuit court. It is sufficient if the order shows that the county court was satisfied there was a necessity for the assessment and levy of other taxes than those called for in the preceding section. It does require that the prosecuting attorney, in his petition to the circuit court, state the facts and give the reasons why such additional taxes should be levied. In the case at bar, the order of the county court recited that the court was satisfied that such necessity existed and requested the prosecuting attorney to present the petition to the circuit court or judge in vacation. The petition of the prosecuting attorney to the circuit judge following that order and referring to it stated that a necessity existed for the levy of taxes as follows, to-wit: “A tax necessary to meet the outstanding obligation of Pike county, of Buffalo, *608Calumet, Cuivre and Peno townships on the bonded indebtedness of the same, together with the interest thereon, wherefore your petitioner asks for an order directed to the county court, commanding such court to have assessed, levied and collected such other' tax or taxes as may be necessary, to-wit, seventy cents on the one hundred dollars in Buffalo, and Calumet townships, eighty cents on the one hundred dollars in Cuivre and Peno townships and ten cents on the one hundred dollars in Pike county.”
In the order of the circuit judge which followed, is a recital that he finds that there is a necessity for “a tax necessary to meet the outstanding obligations of Pike county, of Buffalo, Calumet, Cuivre and Peno townships on the bonded indebtedness of the same, together with interest thereon, and the said judge in vacation as aforesaid finds and is satisfied that the assessment, levy and collection of said taxes will not be in conflict with the Constitution and laws of the State, wherefore,” etc., then follows the order for the-levy.
"We think that the petition and the order of the circuit judge would have more clearly conformed to the requirements of the statute if they had set out the facts showing the several amounts of bonded indebtedness, and the condition of the general county revenue as applicable thereto, but they substantially show that a bonded township indebtedness existed, and as the general county revenue, even if there was a surplus, could not be applied to that purpose, we think the petition and order are, as applied to the taxbills in question, sufficient to authorize the assessment
As to the objection that the assessment does not meet the requirements of section 7731, Revised Statutes 1889, that objection is not specific. The answer on that point avers in general terms only that the order of the county court was not made pursuant to that section and that the necessary orders and entries on the records were not made.
The objection is also urged that there was no evidence *609that the county court, after the order of the circuit court, made an order assessing the taxes in question. The answer of the defendant, however, rendered such evidence unnecessary. It avers more than once that the assessment was made by the county court, but says “that said taxes were levied and assessed by said county court without authority to do so.”
It is also averred in the answer that the assessment when made was not entered on a separate book known as the railroad taxbook. If that was the fact it would be fatal to the validity of the assessment, for that is the record proof of the assessment, that the law requires. [State ex rel. Ziegenhein v. Railroad, 117 Mo. 12.] But the evidence does not sustain that plea. The assessment was entered in a book designed alone for such assessments and known in the county clerk’s office as the railroad taxbook. That book was in evidence at the trial, but it is not before us in this record, and, therefore, how it was labeled or entitled we do not know. The objection at the trial seems to have been that it was not kept as a separate book for the railroad taxes for that year, 1894. The evidence was that it commenced in 1894, but was also used for the railroad assessments of subsequent years. The record does not show as much of that book as it should, if the validity of the tax in question is to depend on it. As far as the testimony goes the book seems to conform to the requirements of the law.
And it is also said that the book was never delivered to the tax collector as section 7735, Revised Statutes 1889, requires. That statute requires the clerk to deliver the book to the collector and take duplicate receipts therefor. The county clerk was called as a witness by defendant and asked: “Did you find a receipt for any taxbook from the collector for the year 1894? A. Yes, sir. Q. Have you it with you ? A, Yes, sir.” Then is shown a document which does not appear to be a receipt for such a book, but a tabulated statement of *610taxes assessed against the L. & M. R. R. Co. in the form prescribed in section 7733, Revised Statutes 1889. .The record does not give us sufficient light on this phase of the case.
If it was necessary for the plaintiff in this case to affirmatively show that that book was deEvered to the tax coUector as section 7735 requires, he has failed to do so. But we will not say that the plaintiff’s right to recover, the assessment being in all other respects regular, depends on his showing affirmatively that the book on which the tax was entered was delivered to him by the clerk. That question was before this court in State ex rel. Carter v. Hamilton, 94 Mo. 544, and was not decided; the judges sitting were evenly divided in opinion on it, and the case went off on another point. True it is, that hook is the collector’s warrant of authority for demanding payment of the tax and it should be delivered into his hands before he makes the demand, but in a suit for the tax, when it appears.that the assessment was properly made and duly entered on the book, his recovery does not depend on proof of the performance by the clerk of the detail matter of delivering the book to the collector. Whether the fact, if it was a fact, that the book was never deEvered to the collector, would be a defense to the suit, is not for us to now decide, because the proof does not show that it was not deEvered. We only now say that a failure on the part of the plaintiff to show affirmatively that the book was deEvered wfil not prevent a recovery. We perceive no error in the judgment of the trial court holding that the assessment for 1894 was regular.
II. The most earnest insistence on the part of appellant is that the warrants isued to refund the tax paid in 1892 should be allowed to offset the taxes of 1894, and sued for. The tax of 3892 was assessed in violation of the terms of section 7654, above quoted. The order of the circuit court of May 17, 1879, whilst it was a continuing order, did not embrace in its terms an assessment to pay township bonds. It only ordered a tax of four-tenths of one per cent on all taxable *611property in the county to pay county indebtedness. But when the tax of 1892, now complained of, was assessed there were outstanding against these townships refunding railroad bonds and that tax was assessed to pay them. When that assessment was made the defendant came forward voluntarily and paid it and the money was set apart in the treasury for the especial purpose of paying those bonds. Under those conditions the county court had no right to draw on that fund for any other purpose, and when it did so the treasurer was justified in refusing to pay the drafts.
In its petition to the county court in 1893 to refund the tax so paid, the defendant based its claim solely on the ground that the tax had not been levied in accordance with the requirements of section 7654, above referred to. There was no claim made that the tax was not levied to pay a just obligation of the townships, for which all the taxable property in the township was liable, but only that the procedure prescribed by law. had not been followed.
Whilst that would have been a perfectly valid defense to a suit to collect the tax, it is not a foundation for a suit to recover the money voluntarily paid in conformity to the assessment. Taxes paid voluntarily, under those circumstances, can not be recovered. [Walker v. City of St. Louis, 15 Mo. 563; State ex rel. v. Powell, 44 Mo. 436; Couch v. Kansas City, 127 Mo. 436; Robins v. Latham, 134 Mo. 469.]
But appellant is advised that by the Act of March 27, 1891, now section 1809, Revised Statutes 1899, the county court was given authority to refund money collected under an illegal levy and for that purpose to draw warrants upon the fund into which it had been paid. Just what kind of an illegal tax that statute contemplates, whether the illegality has reference only to the subject of the tax itself, or embraces also taxes otherwise lawful but assessed in a manner not authorized by law, we need not now inquire. The statute itself provides that it shall apply only when the money is in the *612county treasury or under the control of the county court. If this had been money collected for general county purposes, its place would be in the county treasury, and it would be under the control of the county court, subject of course to the restrictions that the law imposes on that control. But here the money was collected for a particular purpose and the county court had no control of it except to devote it to that purpose. The tax was levied for a lawful purpose, imposed on property liable to the same and was within the limits of the law, but it was an illegal levy because it was not imposed in the manner prescribed by law. Still, when the taxpayer comes voluntarily to the collector and pays the money on that account, and it is by the county court set apart to that purpose, the rights of the creditor, for whose debt the tax was levied, attaches,- and the county court no longer has control of the fund. Therefore, the act of the, county court in issuing the warrants in question was without authority. This view of this feature of the case disposes not only of the question of set-off, but also of the defendant’s counterclaims, without deciding the question of whether a counterclaim against the county can be pleaded in a suit of this kind.
We think the circuit court reached the right conclusion, and its judgment is affirmed.
All concur.