BRITT, C.-Certain persons, to whose rights plaintiff has succeeded by assignment, entered into a contract with the county of Fresno, whereby they agreed to build additions to the county courthouse, and to complete the same within the space of fifteen months from the date of the contract, which was December 14, 1891; the county, on its part, agreed to pay them therefor the sum of ninety-nine thousand three hundred and eightyseven dollars "in gold coin or county warrants," seventy-five per cent thereof in monthly installments, according to the stage of advancement of the work, and the remainder within thirty-five days after completion of the structure. The building was not finished until November 8, 1893, but this delay was within certain saving clauses of the contract, and was assented to by defendant, and on the day last mentioned the county accepted the work as fully completed in accordance with the contract. A balance of six thousand seven hundred and eight dollars and sixty-two cents remains unpaid on the said contract price, and to recover such balance is the object of this action. Plaintiff's complaint averred the facts above stated, and also set forth, among other matters, the following: "That the said defendant, by the execution of said contract, did not incur any indebtedness or liability exceeding in any year of the performance of the same the income and revenue provided for it for such year; that the income and revenue of said defendant provided for the year 1892 was sufficient to meet all payments under such contract as fell due in 1892 under the terms thereof, and all other obligations of said defendant falling due in 1892, and that the income and revenue of said defendant provided for the year 1893 was sufficient to meet all payments under said contract as fell due in 1893 under the terms thereof, and all other obligations of said defendant falling due in 1893." A demurrer to this complaint for want of facts sufficient to constitute a cause of action was sustained by the court, and, plaintiff declining to amend, judgment passed for defendant.

No brief has been filed for respondent, and we are not informed of the particulars in which the complaint was held obnoxious to the demurrer; from the argument for appellant, however, we infer that the court considered the total indebtedness incurred on the part of the county by the execution of the contract to be in excess of the revenue and income of the county for each of the years 1892 and 1893, singly, and hence was void in virtue of the prohibition contained in section 18, article XI, of the constitution, and the similar provisions of the County Government Act of 1891, sections 5, 36, by which a county is forbidden to "incur any indebtedness or liability, in any manner or for any purpose, exceeding in any year the income and revenue provided for it for such year," etc. Whatever doubt may have formerly existed in this state regarding the effect of that clause of the constitution on such contracts has been removed by the late decision of this court in McBean v. Fresno, ante, p. 159, where the court, per Mr. Justice. Henshaw, having in view its previous decisions and the course of adjudication elsewhere, declared the law to be "that at the time of entering into the contract no debt or liability is created for the aggregate amount of the installments to be paid under the contract, but that the sole debt or liability created is that which arises from year to year, in separate amounts, as the work is performed." In the present case, the plaintiff has alleged that the income and revenue of the county provided for the years 1892 and 1893, respectively, was sufficient to meet the payments falling due under the terms of the contract in those years, and to discharge the other current obligations of the county; it is thus shown that each year's revenue was adequate to pay each year's indebtedness, and the case is brought within the principle of McBean v. Fresno, supra.

The judgment should be reversed and the court below. directed to overrule the demurrer to the complaint.

HAYNES, C., and BELCHER, C., concurred.

For the reasons given in the foregoing opinion the judgment is reversed and the court below is directed to overrule the demurrer to the complaint.

MCFARLAND, J., TEMPLE, J., HENSHAW, J.

[No. 19407. In Bank.—April 7, 1896.]

PACIFIC MUTUAL LIFE INS. CO., RESPONDENT, v. COUNTY OF SAN DIEGO, APPELLANT.

TAXATION-SCHOOL DISTRICT FUNDS-ACTION TO RECOVER ILLEGAL TAXES PAID UNDER PROTEST-LIABILITY OF COUNTY.-The funds of a school district raised by a special school tax levied by the board of supervisors are not subject to the control of the county, and no action will lie against the county under section 3819 of the Political Code to recover such taxes paid under protest, upon the ground of alleged illegality of the school tax. ID.-CONSTITUTIONAL LAW-PLEDGE OF CREDIT OF COUNTY-CONSTRUCTION OF CODE.-Under section 31 of article IV of the state constitution, the credit of a county cannot be pledged for the payment of the liabilities of municipal or other corporations, and section 3819 of the Civil Code is to be so construed as not to conflict with the constitution, and as not designed to authorize the recovery from the county of illegal taxes collected for the use of a school district, for which the county could have no recourse against the district, if compelled to pay them.

APPEAL from a judgment of the Superior Court of San Diego County. E. S. TORRANCE, Judge.

The facts are stated in the opinion.

M. L. Ward, and A. Haines, for Appellant.

Parrish & Mossholder, and H. T. Creswell, amici curiæ. C. H. Rippey, and Rippey & McNutt, for Respondent.

THE COURT.-A re-examination of the questions presented in this case serves but to confirm the reasoning and conclusion reached in the Department opinion. The judgment is reversed, and the trial court directed to sustain the demurrer to the complaint.

BEATTY, C. J., did not participate in the foregoing decision.

The following is the opinion above referred to, rendered in Department One, on the 21st of August, 1895:

BRITT, C.-Action brought professedly under section. 3819, added to the Political Code in 1893 (Stats. 1893, p. 32), for the recovery of alleged illegal taxes paid by plaintiff, under protest, to the tax-collector of the defendant county. It is stated in the complaint that the taxes complained of were levied by the board of supervisors of the county "as and for a special school tax for the city of San Diego school district." The illegality alleged is that the question whether such tax should be raised was not submitted to a vote of the electors of the district, as required by sections 1830-35 of the Political Code. Defendant demurred to the complaint upon the special ground, among others, that the taxes paid by plaintiff "are neither county or state taxes, nor any taxes under the control of the defendant." The court overruled the demurrer, and defendant answered, alleging, with other matters, that the levy was made pursuant to a certain judgment obtained by said school district which became final on appeal to this court. (San Diego School Dist. v. Supervisors, 97 Cal. 438.) The court sustained a demurrer to the answer and rendered judgment for plaintiff; we need not inquire whether the answer stated a defense.

The funds of the school district are not subject to the control of the county so as to allow a reimbursement of the county for the amount of the judgment, if it should be paid (Const., art. XI, sec. 16; Pol. Code, sec. 1837); and if said section 3819 of the Political Code admits of a construction which would uphold an action of this character, its constitutionality in that particular would admit of debate, for the credit of a county cannot be pledged for the payment of the liabilities of municipal or other corporations. (Const., art. IV, sec. 31.) But it was held in Elberg v. San Luis Obispo County, decided in Department Two of this court, August 3, 1895,* that said section 3819 of the Political Code was not designed

* Affirmed on hearing in Bank, post, p. 316.

to authorize the recovery from a county of illegal taxes collected for the use and disposition of a high school district within the county. This case differs from that in no particular favorable to plaintiff. (See, also, School Dist. v. Bridport, 63 Vt. 383; Stone v. Woodbury County, 51 Iowa, 522; Taylor v. Avon Tp., 73 Mich. 604.) The judgment should be reversed and the court below directed to sustain the demurrer to the complaint.

[No. 19548. In Bank.--April 7, 1896.]

MARK ELBERG, APPELLANT, v. COUNTY OF SAN LUIS OBISPO, RESPONDENT.

TAXATION FUNDS OF HIGH SCHOOL DISTRICT-ACTION TO RECOVER ILLEGAL TAXES PAID UNDER PROTEST LIABILITY OF COUNTY.-A county, as such, has no interest in the funds of a high school district, nor any control over the same in the county treasury; and no action will lie against the county, under section 3819 of the Political Code, to re. cover taxes paid into such funds under protest, upon the ground of alleged illegality of the high school tax.

ID.-CONSTRUCTION OF CODE.-Section 3819 of the Political Code is not to

be construed to permit an action against a county to recover taxes paid to and held by its officials, not for the benefit of the county, but for the use of, and to be disbursed by, a local district within the county, and for the enforced payment of which by the county it could have no recourse against such district.

APPEAL from a judgment of the Superior Court of San Luis Obispo County. V. A. GREGG, Judge.

The facts are stated in the opinion.

William Shipsey, and Graves & Graves, for Appellant. F. A. Dorn, for Respondent.

THE COURT. In the Department opinion rendered in this case it was decided that the judgment appealed from, entered after a general demurrer to the complaint had been sustained, should be affirmed. This was upon the ground that no cause of action was stated against the defendant county, which was not a proper party