It seems to be contended, however, that equity will withhold relief after the death of the grantor only where there is an heir to succeed to the property and it is claimed that the converse of the proposition, namely, that where there are no heirs the court should correct the mistake at the instance of the grantees, is a sound principle of equity.

As to this contention, we may observe that there is no express finding that there was no heir, and it is quite apparent that if there be any heir to an estate he would not be precluded by such finding in this case from asserting and maintaining his heirship by the method pointed out in section 1664 of the Code of Civil Procedure. But waiving the foregoing considerations and admitting for the sake of argument that if all parties in interest consent, such deed may be reformed after the death of the grantor, it is quite apparent that there are other parties in interest besides the heir or heirs and the grantees. Whoever would succeed to the property under the laws of the state stands in the same relation to the grantor as far as reformation is concerned and to what he has failed to convey as would an heir. In fact, the heir-so called-is a party in interest only by virtue of the statute, and the same section of the code which provides for the succession by a relative to the decedent determines that the state has a contingent interest in the estate of one dying intestate. For said section 1386 of the Civil Code reads: "When any person having title to any estate not otherwise limited by marriage contract dies without disposing thereof by will, it is succeeded to and must be distributed, . in the following manner:

9. If the decedent leaves no husband, wife or kindred and there are no heirs to take his estate or any portion thereof under subdivision eight of this section, the same escheats to the state for the support of the common schools."

In other words, the legal title to said lot No. 6 on the death of John Cradwick vested according to the order prescribed by said section 1386, and the interest of the one entitled to the same is not affected by the class or category to which he may belong.

The matter cannot be made plainer by argument, and it will not be disputed that the state has not consented to the reformation of said deed. It may be said also that the creditors, if any-and it does not appear that there was noneprobably have such an interest that equity would not be jus

tified in reforming said deed without their consent, but as to that we need not express any definite opinion.

There is some pretense that the executors represented the interested parties in expressing their willingness to have the deed reformed. Such position, however, cannot be maintained. We need not consider at length the duties and responsibilities of executors, as those matters have been often discussed in the decisions, and the provisions of the Code of Civil Procedure on the subject scarcely need elucidation. It is sufficient to say that they have no power to consent to such a decree, and if they attempt to do so it cannot affect the legal title to the property. They may compound with a creditor as provided by section 1588 of the Code of Civil Procedure, but that must be "with the approbation of the court, or a judge thereof." They may also be required to complete contracts for sale of real or personal property made by the decedent in his lifetime (Code Civ. Proc., sec. 1597), but this must be by direction of the court, and, of course, it must be in cases wherein the grantor if living could be compelled to execute the conveyance.

No one would contend that in a case like this where the conveyance was voluntary the grantor could be compelled to convey the land in controversy. Manifestly the executors stand in a relation no more favorable to the grantees.

We think there is no merit in the appeal, and the judgment is therefore affirmed.

Chipman, P. J., and Hart, J., concurred.

[Civ. No. 1774. Third Appellate District.-February 4, 1918.] EDWIN H. WILLIAMS, Appellant, v. CITY OF VALLEJO (a Municipal Corporation), et al., Respondents.

MUNICIPAL CORPORATIONS-CHARTER-POWER OF LEGISLATURE.-Under the constitution, the legislature has no authority to make any alteration or amendment to a city charter, but its sole power is to ratify or reject it.

ID.-DATE OF TAKING EFFECT OF CHARTER-RIGHT TO PROVIDE IN CHAR

TER. A city charter may provide that some of its provisions shall

take effect on a date other than the date of its approval by the legislature. ID.-CONSTRUCTION OF RESERVOIR-PART OF WATER SYSTEM-MUNICIPAL AFFAIR. The construction of a reservoir by a city upon its own land and to be used for the benefit of the inhabitants thereof as a part of its water system is a municipal affair, within the provision of section 8 of article XI of the constitution. ID.-CONSTRUCTION OF RESERVOIR IN CITY OF VALLEJO-CHARTER GOVERNING WORK.-A contract for the construction of a reservoir in the city of Vallejo upon its own land for the benefit of the city as a part of its water system, which was entered into on the nineteenth day of June, 1911, is governed by the charter of 1899 (Stats. 1899, p. 370), and not by the charter of 1911 (Stats. 1911, p. 1422), since by the express provision of section 128 of the latter instrument, it did not become effective for purposes other than the election of officers until July 1, 1911, notwithstanding it was approved by the legislature on March 11, 1911.

JD. CITY CONTRACTS UNDER VALLEJO CHARTER OF 1899-PUBLIC WORK ACT OF 1897 INAPPLICABLE.-In view of the fact that the charter of 1899 of the city of Vallejo (Stats. 1899, p. 370), provides a complete scheme for the letting of contracts, including the terms and conditions under which such contracts are to be let, including also the giving of a bond by the contractor for the faithful performance of the contract, it follows that the act of March 27, 1897, or the amendatory act of May 1, 1911, relating to the giving of a bond to protect materialmen and laborers employed by the contractor on public work, has no application to contracts let under such charter.

APPEAL from a judgment of the Superior Court of Solano County. W. T. O'Donnell, Judge.

The facts are stated in the opinion of the court.

Karl F. Kennedy, and Edwin H. Williams, for Appellant. James H. O'Leary, and L. G. Harrier, for Respondents.

CHIPMAN, P. J.-This action was brought by plaintiff to recover judgment for the sum of $3,496.44, with interest at seven per cent from February 29, 1912, and for costs of action. against the defendant city of Vallejo, and the defendants Pryor, Blake and Chappelle, as individuals, by reason of their having been at the time the alleged indebtedness occurred, members of the board of public works of the city of Vallejo. It is alleged in the complaint that on the nineteenth day of

June, 1911, the city of Vallejo "duly and regularly authorized the board of public works of the city of Vallejo to accept the bid of the American Construction Company, a corporation, for the construction of a reservoir for the said city of Vallejo and to award a contract for the performance of said work to said American Construction Company. That thereupon and in pursuance of said authorization said board of public works of the city of Vallejo, and G. Pryor, W. P. Blake and J. F. Chappelle, commissioners thereof, did accept said. bid of said American Construction Company for the performance of said works, and did enter into a contract with said American Construction Company for the performance of said work, for the amount of its bid, to wit, the sum of $35,925. That under and by the terms of said contract said reservoir was to be and actually was constructed upon land within the limits of said county of Solano, state of California, belonging to said city of Vallejo and owned by it, and that all of said property is, and was at all the time herein mentioned, public property owned in fee simple absolute by said city of Vallejo." That at the time said contract was entered into said board of public works "and the defendants herein, and each of them, wholly failed and neglected to furnish or file with said board of public works or otherwise, or require said American Construction Company to furnish or file with said board of public works or otherwise any bond in favor of subcontractors, laborers, and materialmen . . . as required by that certain act of legislature entitled: 'An act to secure the payment of the claims of materialmen, mechanics, or laborers, employed by contractors upon state, municipal, or other public work,' approved March 27, 1897, and that no bond of any kind or character was filed by any person whomsoever at any time in compliance with the terms of the statute above mentioned or otherwise." It is then alleged that the said American Construction Company entered upon the performance of the work and completed the same on or about February 29, 1912, "and thereupon said city of Vallejo and said defendants herein duly and regularly accepted said work from said American Construction Company and paid for the same in full. That the contract hereinabove mentioned was reduced to writing and entered into as a written contract." That during the performance of the work under said contract the said American Construction Company employed certain five

different persons, corporations, or companies to furnish certain work and labor and certain materials to be used in the construction of said reservoir, and in separate counts the complaint sets forth the fact showing that each of said persons did perform the work and furnish the materials as alleged, also setting forth the reasonable value of said work and that the said American Construction Company promised to pay in each instance the amount claimed therefor "immediately upon the completion of said work, but that although often demanded it has refused to pay" the amounts severally claimed by said claimants, and that the amount claimed in each instance is now "owing and unpaid on said account after deducting all just credits and offsets." That said claimants, and each of them, prior to the commencement of this action assigned their several claims to plaintiff, and he is now the owner and holder thereof. That plaintiff has demanded settlement from defendants herein, and each of them, of the several amounts shown by the complaint to be still due on said claims, "but that said defendants, and each of them, have wholly neglected and refused to pay the same or any part thereof." The aggregate of these said several claims amounts to the sum above stated for which judgment is asked. The contract referred to in the complaint is not set out in full nor is there any exhibit showing a copy thereof.

A general and special demurrer was filed and the court or dered that it be sustained. Whereupon judgment was entered for defendants and that plaintiff take nothing by this action. Plaintiff appeals from the judgment.

The point chiefly relied upon by appellant is as follows: "The city and its responsible officials are liable to the plaintiff for their failure to file a bond to secure the payments of the claims of laborers and materialmen in accordance with public works act." The statute referred to is the act approved May 1, 1911 (Stats. 1911, p. 1422), amending the act approved March 27, 1897 (Stats. 1897, p. 201). Section 1 of the act of 1911 provides as follows: "Every contractor. . . to whom is awarded a contract for the execution or perform. ance of any building, excavating, or other mechanical work for this state, or by any county, city and county, city, town. or district therein, shall, before entering upon the performance of such work, file with the commissioners, . . . common council or other body by whom such contract was awarded,