the same description said premises were afterward sold and conveyed to plaintiff Gordon under said proceedings.

Appellant does not contend that plaintiff did not, at the commencement of the action, have all the title Whaley ever had, but contends that Whaley never had any title for the reasons hereinbefore stated; or that, if he had any title or interest in the east half of said pueblo lot, it was only of the undivided half of said east half; and that the court erred in admitting evidence of facts transpiring after the commencement of the action. It is true that, if there was no cause of action at the time the suit was commenced, the plaintiff could not, under a supplemental complaint, give evidence of a cause of action which accrued afterward. In Gleason v. Gleason, 54 Cal. 135, it was said that, as a general rule, the right to file a supplemental complaint can be exercised only with reference to matters which may be consistent with and in aid of the case made by the original complaint, and it is not allowable to substitute a new and independent cause of action by way of a supplemental complaint. (See, also, Jacob v. Lorenz, 98 Cal. 332, 337.)

If there were any question as to the correctness of the rulings of the court in admitting in evidence matters occurring after the suit was commenced, inasmuch as for many years prior to the death of Thomas Whaley the east half of said pueblo lot was assessed to him by the city, that he paid the taxes thereon, thus assenting to the conveyance to Babcock as a partition of said lot; that his wife, who must be presumed to have been familiar with the manner in which her husband had treated the property up to the time of his death, described said property in the inventory filed by her as administratrix as the east half of said lot, and not as an undivided half of the entire lot, are quite sufficient to sustain the findings and judgment; and, that being true, even if the court erred in admitting the evidence touching occurrences after suit began, such error would be harmless.

The judgment and order appealed from should be affirmed.

SEARLS, C., and BELCHER, C., concurred.

For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed. HARRISON, J., GAROUTTE, J., VAN FLEET, J.

[No. 19543. Department One.-July 29, 1895.] CHARLES S. HAMILTON, RESPONDENT, v. COUNTY OF SAN DIEGO ET AL., APPELLANTS.

SCHOOL DISTRICT-CORPORATION DE FACTO-ORGANIZATION BY SUPERVISORS IN UNKNOWN CITY LIMITS-TAXES FAID FOR BONDS NOT RECOVERABLE-NEW SCHOOL DISTRICT.-Where a school district established by the supervisors was in fact within the territorial limits of a city, though supposed, in good faith, to be without its limits, and the district so organized exercised the powers and discharged the duties of a school district in the same manner as if its organization had been legally perfected, to the exclusion of any other school district, with the acquiescence of the city school district, and of the county and state authorities, and assumed corporate powers and privileges, and taxes were levied and collected, apportioned and expended in its behalf in like manner as other school districts, and the owners of property included in the district recognized its corporate existence by paying taxes for its use, such school district is a corporation de facto, whose existence cannot be collaterally impeached; and the taxpayers cannot recover back the taxes paid by them into its bond and interest fund; nor is a new school district thereafter regularly established entitled to any of the funds collected for the payment of the principal and interest of the bonds of the school district de facto, but the holders of the bonds are entitled to the taxes paid into the bond and interest fund, to the exclusion of the taxpayers and of the new district.

APPEAL from a judgment of the Superior Court of San Diego County and from an order denying a new trial. GEORGE PUTERBAUGH, Judge.

The facts are stated in the opinion.

District Attorney M. L. Ward, for County of San Diego, Appellant.

The Coronado school district was a de facto district, and the court erred in finding otherwise. (Quint v. Hoffman, 103 Cal. 506; Dean v. Davis, 51 Cal. 411; Rec

CVIII. Cal.-18

lamation Dist. v. Gray, 95 Cal. 601; Swamp Land Dist. v. Silver, 98 Cal. 53; School Dist. No. 2 v. School Dist. No. 1, 45 Kan. 543; Atchison etc. R. R. Co. v. Wilson, 33 Kan. 223; State v. Central Pac. R. R. Co., 21 Nev. 75; Coler v. Dwight School Tp., 3 N. Dak. 249; Keweenaw Assn. v. School Dist. No. 1, 98 Mich. 437; Fractional School Dist. v. School Inspectors, 27 Mich. 3; Clement v. Everest, 29 Mich. 19; Stuart v. School Dist., 30 Mich. 69; In re Wetmore, 99 Cal. 146; Cooley on Taxation, 2d ed., 73, 768, 809, 821, 822, note at foot; Coe v. Gregory, 53 Mich. 19; Stockle v. Silsbee, 41 Mich. 615; Bird v. Perkins, 33 Mich. 28.) The corporate existence of the district cannot be questioned collaterally, nor can taxes voluntarily paid therefor be recovered back. (Trumbo v. People, 75 Ill. 561; Renwick v. Hall, 84 Ill. 163; People v. Newberry, 87 Ill. 41; School Directors etc. v. School Directors, 135 Ill. 464; Quint v. Hoffman, supra; Reclamation Dist. v. Gray, supra; Swamp Land Dist. v. Silver, supra; In re Wetmore, supra; Cooley on Taxation, 2d ed., 73, 768, 809, 821, 822, note at foot.) The same rule that recognizes the rights of officers de facto recognizes corporations de facto. (Clements v. Everest, supra.)

Parrish & Mossholder, for Coronado School District, Intervenor, Appellant.

The taxpayers cannot recover back money voluntarily paid for taxes. (Dear v. Varnum, 80 Cal. 89; Cooper v. Chamberlin, 78 Cal. 450; Maxwell v. San Luis Obispo, 71 Cal. 466; Brumagim v. Tillinghast, 18 Cal. 271; 79 Am. Dec. 176; Garrison v. Tillinghast, 18 Cal. 404, 408; Bucknall v. Story, 46 Cal. 596; 13 Am. Rep. 220; Sonoma County Tax case, 13 Fed. Rep. 790; McMillan v. Richards, 9 Cal. 417; 70 Am. Dec. 655; Bank of Woodland v. Webber, 52 Cal. 73; De Baker v. Carillo, 52 Cal. 475; Bank of Santa Rosa v. Chalfant, 52 Cal. 170; Wills v. Austin, 53 Cal. 178; Merrill v. Austin, 53 Cal. 379; Cooley on Taxation, 2d ed., 809-11.) The money should be used for the education of the youth of the territory known as Coronado Beach, under the doctrine of cy pres,

and the demurrer of the intervenor should not have been overruled. (United States v. Church, 6 Utah, 9; 2 Story's Equity Jurisprudence, secs. 1167-70 a; Heuser v. Harris, 42 Ill. 425; Gilman v. Hamilton, 16 Ill. 225; Estate of Hewitt, 94 Cal. 378; Estate of Hinckley, 58 Cal. 511; Russell v. Allen, 107 U. S. 163.) It was not necessary that Coronado school district should be lawfully created at the time the money was paid into the county treasury. (2 Story's Equity Jurisprudence, secs. 1169-70 a; Russell v. Allen, supra.) All money held for public purposes is held as a charitable use, and the laws governing charitable uses apply. (Perin v. Carey, 24 How. 506; Story's Equity Jurisprudence, sec. 1165.)

E. W. Hendrick, and A. C. Younkin, for Respondent. Payment is not voluntary when made under mistake of fact, and such payment may be recovered back (Baltimore etc. R. R. Co. v. Faunce, 6 Gill, 68; 46 Am. Dec. 655; Citizens' Bank v. Grafflin, 31 Md. 520; 1 Am. Rep. 66; Kelly v. Solari, 9 Mees & W. 54; Pooley v. City of Buffalo, 4 N. Y. Supp. 450; Dillon on Municipal Corporations, 945, 946; 2 Pomeroy's Equity Jurisprudence, sec. 856; Mayer v. Mayor etc., 63 N. Y. 455; Walker v. Conant, 65 Mich. 194; Brown v. College Corner etc. Co., 56 Ind. 110, and cases cited; Dillon on Municipal Corporations, 945, 946; Civ. Code, secs. 1712, 1713, 2224; Hayes v. Los Angeles County, 99 Cal. 77; Indianapolis v. McAvoy, 86 Ind. 590; Chapman v. Brooklyn, 40 N. Y. 380; 2 Chitty on Contracts, 7th ed., 462; Los Angeles County v. Los Angeles City, 65 Cal. 480; Kreutz v. Livingston, 15 Cal. 347; Argenti v. San Francisco, 16 Cal. 255; Louisville v. Anderson, 79 Ky. 334; 42 Am. Rep. 221; Talbot v. National Bank, 129 Mass. 69; 37 Am. Rep. 302; Koontz v. Central Nat. Bank, 51 Mo. 275; Waite v. Leggett, 8 Cow. 195; 18 Am. Dec. 441; Dillon on Municipal corporations, 4th ed., secs. 945, 946; Pitcher v. Turin Plank Road Co., 10 Barb. 437; Noble v. Bullis, 23 Iowa, 560; 92 Am. Dec. 442; Louisville v. Henning, 1

Bush, 381; City of Covington v. Powell, 2 Met. (Ky.) 226.) An illegal tax levied or collected without jurisdiction may be recovered back. (Kerr v. Butz, 34 Ill. App. 220; Newman v. Board of Supervisors, 45 N. Y. 676; Sumner v First Parish of Dorchester, 4 Pick. 364; Pol. Code, sec. 3804; Hayes v. Los Angeles County, supra; Bank of Commonwealth v. Mayor, 43 N. Y. 189; Grand Rapids v. Blakely, 40 Mich. 367; 29 Am. Rep. 539; Joyner v. Third School Dist., 3 Cush. 569; Union Nat. Bank v. Mayor etc., 51 N. Y. 638; Indianapolis v. McAvoy, 86 Ind. 587; Shoemaker v. Grant County, 36 Ind. 175; Mills v. Hendricks County, 50 Ind. 436; Woolley v. Staley, 39 Ohio St. 354; Galveston v. Sydnor, 39 Tex. 236; Marshall v. Snediker, 25 Tex. 460; 78 Am. Dec. 534; Baker v. Panola County, 30 Tex. 86; Lauman v. County of Des Moines, 29 Iowa, 310; Iowa etc. Land Co. v. Woodbury County, 64 Iowa, 213; George's Creek etc. Co. v. County Commrs., 59 Md. 255; Indianapolis v. McAvoy, supra.) There was neither a de jure nor a de facto corporation, there being no semblance of authority for its existence. (Pol. Code, secs. 1576, 1583; Bay View School Dist. v. Linscott, 99 Cal. 28; Dillon on Municipal Corporations, 3d ed., sec. 290; Decorah v. Bullis, 25 Iowa, 12; Norton v. Shelby County, 118 U. S. 425; Hildreth v. M'Intyre, 1 J. J. Marsh. 206; 19 Am. Dec. 61; Welch v. Ste. Genevieve, 1 Dill. 130; Mokelumne Hill Min. Co. v. Woodbury, 14 Cal. 425; 73 Am. Dec. 658; People v. Toal, 85 Cal, 333; Oroville etc. R. R. Co. v. Plumas County, 37 Cal. 354; People v. White, 24 Wend. 520, 540, 541; Carleton v. People, 10 Mich. 250; Mayor etc. v. Territory, 1 Okl. 188; Evenson v. Ellingson, 67 Wis. 634.) There cannot be two municipal corporations at the same time within the same territory. (Dillon on Municipal Corporations, 184; Paterson v. Society etc., 24 N. J. L. 385; Drain Commrs. v. Baxter, 57 Mich. 130; Strosser v. Fort Wayne, 100 Ind. 443-51; Taylor v. Fort Wayne, 47 Ind. 274.) The doctrine of cy pres has no application to this case, the taxpayers never having dedicated the money for charitable