Reyberg, 40 Cal. 465; Roach v. Coffey, 73 Cal. 281; Estate of Marrey, 65 Cal. 287; Estate of Jessup, 22 Pac. Rep. 260.)

GAROUTTE, J.—The record in this case is in a condition of hopeless entanglement, but sufficient appears to require a reversal. of the judgment. One Navarro was named as executor and made a devisee by the last will and testament of Catarina R. Whetton, deceased. He qualified as such executor and entered upon the discharge of his duties. James Whetton, husband of deceased, filed a contest asking for a revocation of his letters testamentary, and that the will be declared null and void. A citation was issued to Navarro to show cause upon a certain day why his letters should not be revoked and the will set aside as void. Navarro appeared as executor, and filed a general demurrer to the petition.

What occurred subsequently to the foregoing events is not made plain by the record, but sufficient appears therefrom, aided by the light furnished from the briefs of respective counsel, to indicate that the court was of the opinion that the executor, as such, had no right to support and defend the will, and he was thereupon denied such right. This position is not well founded. When a will is attacked after probate, section 1327 of the Code of Civil Procedure makes the executor a necessary party to the proceeding, and requires that a citation issue to him personally to show cause why the probate should not be revoked. It would be an absurdity to cite him to show cause, and when he appears in court in obedience to the citation to refuse to consider the reasons which he is prepared to advance why the will should not be set aside and annulled. It is not only his privilege to make such showing, but it is his duty under his trust. While it has been held in many cases that an administrator cannot appeal from a decree of distribution, because he has no interest in the final judgment, whatever it may be, yet that principle is in no sense analogous to the right of an executor to support a will, especially so when it has once been probated.

For the foregoing reasons let the judgment and decree setting aside the will, revoking the probate thereof and distributing the estate, be reversed and the cause remanded for further proceedings.

PATERSON, J., and HARRISON, J., concurred.

[15053. Department Two.-May 3, 1893.]

OWEN CONNOLLY, APPELLANT, V. THOMAS ASHWORTH, SUPERINTENDENT OF STREETS, ETC., RESPOND

ENT.

TRIAL BY COURT-FILING DECISION.-The trial of a cause by the court is not concluded until the decision is filed with the clerk. ID.-DECISION FILED AFTER EXPIRATION OF OFFICE OF JUDGE JUDGMENT NOT SUPPORTED. When a case is tried by the court without a jury, and the term of office of the judge expires before he files his decision in the case, the fact that it is signed by him and ordered by his successor in office to be filed, and is so filed, is not sufficient to sustain a judgment entered thereon.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial.

The facts are stated in the opinion of the court.

Michael Mullaney and William Grant, for Appellant.

John H. Durst, for Respondent.

FITZGERALD, C. — This case was tried by the court without a jury, and its decision given in writing and signed by the judge, but not filed with the clerk until after the term of office of the judge had expired.

Upon the back of the proposed decision and in the judge's handwriting appears the following indorsement:

"To be left with the clerk and not filed till further notice of amendment heard by the court from def't (meaning plaintiff). "T. H. REARDEN, Judge."

The judge thereupon instructed the clerk to deliver the proposed decision so indorsed to plaintiff's attorney for the purpose of proposing amendments in the event he saw fit to do so, which the clerk accordingly did. No amendments were ever proposed by either party, and so the matter stood on January 5, 1891, when Judge Rearden's term of office expired. Subsequently the court (Judge Rearden's successor in office presiding), on motion of defendant, ordered the decision to be filed, and thereupon judgment was accordingly entered thereon against plaintiff. From which judgment and the order denying his motion for a new trial this appeal is taken by plaintiff.

Section 632 of the Code of Civil Procedure provides: "Upon the trial of a question of fact by the court, its decision must be given in writing and filed with the clerk. And section 633 provides that, "In giving the decision, the facts found and the conclusions of law must be separately stated. Judgment upon the decision must be entered accordingly."

In view of these provisions it is clear that the trial of a cause by the court is not concluded until the decision is filed with the clerk; and when the term of office of the judge who tried the case expires before such decision is filed, the fact that it was signed by him and ordered by his successor in office to be filed with the clerk, and was so filed, is not sufficient to sustain the judgment entered thereon. (Hastings v. Hastings, 31 Cal. 95; Van Court v. Winterson, 61 Cal. 615; 2 Hayne on New Trial and Appeal, secs. 237, 246; Warring v. Freear, 64 Cal. 56; Comstock Q. M. Co. v. Superior Court, 57 Cal. 625; Polhemus v. Carpenter, 42 Cal. 384; Anglo Cal. Bank v. Mahoney, 2 Pac. C. L. J. 128, U. S. Cir. Ct.; Mace v. O'Reilley, 70 Cal. 231.) Let the judgment and order be reversed, and the cause remanded for a new trial.

DE HAVEN, J., and MCFARLAND, J., concurred.

[18031. Department Two.-May 4, 1898.]

THE PEOPLE, RESPONDENT, v. THE SELMA IRRIGATION DISTRICT, APPELLANT.

IRRIGATION DISTRICT-PUBLIC CORPORATION-DISSOLUTION-POWER OF COURTS.An irrigation district, organized under the act of March 7, 1887 (Stats. 1887, p. 29), is a public corporation, and cannot be dissolved for misuser or non-user of its corporate powers, in the absence of a law expressly conferring power upon the courts to pass a judicial sentence dissolving such corporation upon those grounds.

ID.-FORFEITURE OF CHARTER-MUNICIPAL CORPORATIONS-LEGISLATIVE CONTROL.The doctrine of forfeiture of charter has no application to municipal or other public corporations, which exist only by legislative action, and cannot be dissolved or cease to exist except by legislative consent or pursuant to legislative provision.

APPEAL from a judgment of the Superior Court of Fresno County.

The facts are stated in the opinion of the court.

Attorney-General W. H. H. Hart, J. B. Campbell, and C. C. Merriam, for Appellants.

Irrigation districts are not municipal corporations, but are merely quasi public corporations. (Elmore v. Drainage Com., 135 Ill. 269; 25 Am. St. Rep. 363; Turlock Irrigation District v. Williams, 76 Cal. 360; Central Irrigation District v. De Lappe, 79 Cal. 351; Crall v. Poso Irrigation District, 87 Cal. 140; In re Madera Irrigation District, 92 Cal. 296; Deering's Pol. Code, sec. 4356, and act classifying municipal corporations, approved March 3, 1883, printed under section 4356, and note. See Dillon on Municipal Corporations, secs. 22-26.) The late decisions have classified irrigation districts with reclamation districts. Reclamation districts are not municipal corporations. (Pol. Code, secs. 4452, 4457.) They are classed as quasi public, along with railroad, turnpike, and canal companies. (1 Lawson's Rights, Remedies, and Practice, sec. 332; 7 Lawson's Rights, Remedies, and Practice, sec. 3920; Miner's Ditch Co. v. Zellerbach, 37 Cal. 543; 99 Am. Dec. 300.) School districts and other quasi public corporations are not municipal corporations. (Freeland v. Stillman, 30 Pac. Rep. (Kan.) 235; Beach v. Leahy, 11 Kan. 23; Eaton v. Manitowoc Co., 44 Wis. 489.) It was within the jurisdiction of the court to dissolve the corporation for non-user or abuse of its franchise. (See Cooley's Constitutional Limitations, 304; People v. Railroad Co., 30 Am. Dec. 48, note; Lawson's Rights, Remedies, and Practice, sec. 4039; Dodge v. People, 113 Ill. 491; People v. Oakland, 92 Cal. 611; Endlich's Interpretation of Statutes, secs. 5, 17.)

C. C. Wright, for Respondent.

The courts have no power to dissolve a municipal or public corporation. (Dillon on Municipal Corporations, secs. 39, 45, 53, 54, 165-168; 15 Am. & Eng. Encycl. of Law, 1198, subd. 28, and cases cited; Mobile v. Watson, 116 U. S. 289; Meriwether v. Garrett, 102 U. S. 472, 511.)

DE HAVEN, J.-The defendant, the Selma Irrigation District, is a corporation organized under an act of the legislature of this state entitled "An act to provide for the organization and government of irrigation districts, and to provide for the acquisition of water and other property," etc., approved March 7, 1887 (Stats. 1887, p. 29), and this action is brought by the people of the state to obtain a judgment dissolving said corporation and excluding it from all corporate rights and franchises. The complaint alleges that since the organization of the Selma Irrigation District as a corporation, three elections have been held in the district in accordance with the provisions of the law under which it was created, for the purpose of determining whether bonds should be issued to construct necessary irrigation canals, at each of which elections a majority of the votes cast was against the issuance of bonds. It is further alleged that said corporation did not commence the transaction of its business or the construction of its works within one year from the date of its incorporation and never has done so; but, on the contrary, has wilfully failed and omitted to use the rights, privileges, powers, and franchises for which it was organized, and that notwithstanding the failure of residents within such district to vote for the issuance of bonds, and the failure of said corporation to commence the construction of irrigation works, the salaries of the officers of such corporation and other employees still continue, and that "the money to pay such salaries and compensation has been and is being raised by assessment and levy upon the lands in said district." The superior court sustained a demurrer to this complaint and thereupon gave judgment for the defendant, and the plaintiffs appeal.

1. The demurrer was properly sustained. The defendant is a public corporation, organized under a general law of the state enacted by the legislature for the purpose of promoting the general welfare. (Turlock Irrigation District v. Williams, 76 Cal. 360; Central Irrigation District v. De Lappe, 79 Cal. 351; Crall v. Poso Irrigation District, 87 Cal. 140; People v. Turnbull, 93 Cal. 630; In re Madera Irrigation District, 92 Cal. 296.) In the latter case this court fully considered the nature of corporations like the defendant, and we there said: "That an irrigation district organized under the act in question becomes a public