those of a private citizen. The judge acts within his powers and in accordance with his duty. The purpose of his official existence is that he may do justice between the parties to the litigation. The Governor acts outside of his powers, which, in this respect, limit his duty. It is never his duty in such matters to act in excess of his power. The judge does not arbitrarily reduce the verdict and give judgment for a smaller sum. He offers the plaintiff an opportunity to agree to a reduction; if he agrees, the judge has power to render the judgment accordingly; if he refuses, the judge can regularly do nothing more than grant the new trial. In either case he acts strictly within his powers. The conduct of the judge in thus inducing an agreement between the parties and a settlement of the litigation is not only not illegal nor contrary to public policy, but it is especially en

suit in mandamus was begun to compel a levy by the legal board. The result of anThe result of another levy would have been that many of the taxpayers would have been compelled to pay the same tax twice. This court refused the writ, and quoted as authority Merrill on Mandamus, §§ 71-73, to the effect that, "The writ of mandate will not issue where it will work injustice, or introduce confusion and disorder, or operate harshly, or where it will not promote substantial justice." This is doubtless a correct statement of the general rule on the subject, and in many cases it controls. But it has no real application to the case at bar. The same principles also apply to and control the doctrine of estoppel in equity. Yet, as we have seen, a contract which is illegal and against public policy will not suffice to create an estoppel. The writ of mandate is discretionary, and frequently the principles of equity are to be resorted to for the deter-couraged by public policy. It has been sancmination of the question whether or not it should issue. But these principles cannot be invoked in mandamus, any more than in equity, to enforce agreements which are void in law, and which have been made in violation of public policy, which would enable the officers of the state to avoid carrying out the positive mandates of a constitutional statute, and which would sanction and enforce the doctrine that an act of the Legislature may be modified by an unauthorized contract executed at the unauthorized demand of the Governor.

It has been suggested that the power of a Governor, who believes that a sum so proposed to be appropriated to a private individual to pay his claim against the state exceeds the amount justly due, is similar to that of a judge engaged in the trial of a case, who believes that the verdict returned by the jury is excessive. The conditions are so variant that there is no real analogy. The Governor has no legal power to reduce the amount of the claim. His only course is laid down in the Constitution. He must sign the bill as it is, or he must withhold his approval and return it with his objections to the house in which it originated. The judge, on the contrary, is, for the time being and for the purposes of that case, the repository of the whole judicial power of the state. He may render judgment for any amount he sees fit, and, if no further action is taken by the parties, that judgment will be valid, and will stand as the measure of their rights. If it does not conform to the verdict of the jury, or to the agreement of the parties made manifest by their consent to a modification and reduction of the verdict, it may, of course, be reversed on appeal. But unless thus reversed, it is conclusive. There is no lack of power, although there may be an erroneous exercise of it. The Governor, in the case supposed, is proceeding entirely beyond his official power, and his acts are of no more force, so far as the validity and effect of the

tioned by the practice of many years in the courts of this country. See 37 Cent. Dig. c. 1363, § 324. The power to do this exists at common law, and it is therefore authorized by the law of this state. Pol. Code, § 4468. The Governor, if he has such power, could compel the person concerned to yield to his demands and execute any agreement he required, at the peril of losing his entire claim, and such person will have no alternative except to apply to a succeeding Legislature. He has no other appeal. A power so arbitrary cannot justly or reasonably be implied from anything contained in the Constitution, or in our system of government. It is not sanctioned by custom, or even by precedent It cannot be recognized by the courts until the people confer it in express terms.

A closer analogy would be the case of a judge giving judgment for a certain sum of money, and contemporaneously taking an agreement from the plaintiff to accept, in full satisfaction of the judgment, a smaller amount. The defendant, in such a case, might perhaps obtain relief by application under section 473, Code Civ. Proc., or by motion for a new trial, or by suit in equity directly attacking the judgment, provided he began the proper proceeding within the time and in the manner provided by law. But if he suffered that time to pass, he would be bound to pay the judgment in full. The agreement would form no part of the record, it would not be self-executing, nor could it operate directly upon the judgment of its own force, and it could not be used collaterally to impeach the judgment, or to satisfy it in part. The law has provided no method for the enforcement of an agreement taken by the Governor in contravention of the statute he has put in force. The veto or rejection of the entire bill is the only means he has to enforce his objections thereto; and. when the bill is signed by him, the case is parallel to that of a judgment when collaterally attacked after the time for direct at

no effect, and proof of it could not be per- | entered into a written contract with one Conmitted to impair the law, or change the judgment.

I dissent and will file an opinion later: sideration above expressed was to cover all BEATTY, C. J.

[Ed. Note. For other cases, see Insurance, insurance business in said business district. Dec. Dig. 79.*]

The court found that the consideration for the covenants and promises of the defendants is as set forth in said written agreeT. C. Van Ness, for appellants. Goodfellow ment and not otherwise; that it is not true & Eells, for respondent.

the defendants entered into said agreement. | that the parties contracted with reference The agreement, it was found, has not failed in to plaintiff's ability to secure business in a any material respect. The court finds that particular district. The appellants' manager the business of insurance at all times since testified that plaintiff's business, before the the said fire has been conducted in the city fire, had been partly within, and partly withand county of San Francisco, although the out, the city. The city business amounted location of the risks has changed by reason to 80 per cent. of the whole, and that in the of the said fire; that the plaintiff has been business district to 80 per cent. of the city able to procure, and has in fact procured, business. This was the extent of defendants' for the defendants a larger amount of insur- showing. But the destruction of the buildance than before the fire. The defendants, ings in the burned district did not destroy the the court finds, continued, after the earth- plaintiff's capacity to obtain insurance. The quake and fire, to accept from the plaintiff most reasonable supposition is that the deperformance of the agreement on his part, fendants contracted to pay him $1,000 per and received from him fire insurance un- month, not because he was able to write intil June 21, 1906, the date of the attempted surance in a certain location, but because rescission. The finding on the plea of re- his relations with certain people, wherever scission is against the defendants. This, located, enabled him to write insurance for however, is immaterial, if the court below them. His value to the appellants lay in was right in its view that there was no his clientage, and this continued, notwithground for rescission. standing the burning of buildings in which some of his clients had been doing business. Within a brief period after the fire, most of the merchants whose establishments in the burned district had been destroyed found quarters and resumed business in other parts of the city. There they again required insurance, and the plaintiff was again enabled to place the insurance of those of them who were his clients. It is said that there was, after the fire, a great demand for insurance, and that appellants could have obtained this business without Levy's assistance. But this conclusion is merely speculative, and can have no bearing on the rights of the parties

The findings regarding the business procured by plaintiff for defendant companies since the fire are fully sustained by the evidence. There is no dispute of the fact that after the fire, as before, the plaintiff placed with the defendants all the fire insurance business which he was able to control. The plaintiff testified that within 15 days after

the fire he resumed his insurance business.

under their contract.

before the fire the defendant companies might It may be that even have been able, through their own efforts, to get a large part of the business which was dently considered Levy's influence valuable, brought to them by plaintiff. But they eviand agreed to pay him for it. They should not be heard to say that they might have

The interruption was only during the time when "everything was in chaos and the insurers had no papers or books." The trial of the action commenced on March 25, 1907, not quite one year after the date fixed for the commencement of the contract. From March 31, 1906, to the time of his testimony, the plaintiff placed with the defendant companies insurance on which the premiums amounted to $45,219.84. The average for the three years preceding the fire had been from $30,000 to $35,000. On these facts we can see absolutely no foundation for the contention of the defendants that they were relieved done as well without his aid. That his effrom performing their contract by any failforts were effectual is shown by the fact ure of consideration. The appellants seek that he turned over a largely increased to bring the case within the well-established rule excusing performance where a contract amount of premiums. Even though the exis made in contemplation of the continued cess was due, in whole or in part, to increasexistence of a subject-matter which is, after ed premium rates, there is nothing in the recthe making of the contract, destroyed with- ord to suggest that the business was not as out the fault of either party. Taylor v. Cald-profitable as that which the plaintiff had well, 3 B. & S. 826; Potts Drug Co. v. Bene- brought in before the earthquake and fire. dict, 104 Pac. 432; Wells v. Calnan, 107 Mass. 514, 9 Am. Rep. 65; Land Co. v. Har

riman, 68 N. H. 374, 44 Atl. 527; 9 Cyc. 631; 1 Beach Contr. § 217. For example, this contract, which called for the rendition of personal services by Mr. Levy, was, under the rule stated, subject to the implied condition that, in the event of his death, further performance on both sides should be excused. Robinson v. Davison, L. R. 6 Exch. 269; Spalding v. Rosa, 71 N. Y. 40, 27 Am. Rep. 7; Johnson v. Walker, 155 Mass. 253, 29 N. E. 522, 31 Am. St. Rep. 550. But neither the agreement itself nor the additional evidence

In view of what we have said, there seems to be little reason for discussing at any

length appellants' further contention that
they are relieved because the performance of
the contract had become impossible by the
occurrence of an event which could not rea-
sonably have been anticipated.
no impossibility. Plaintiff was able to per-
form his obligation to furnish insurance. He
did perform it. It is equally possible for
defendants to perform their part.

The judgment and order appealed from are affirmed.

In Bank. Appeal from Superior Court, Co- | a trust in which Mrs. Miller and the heirs of lusa County; J. O. Goodwin, Judge.

Robert Read were the joint beneficiaries it would be necessary to join said heirs of Read with their aunt Mrs. Miller and the administrator of their father's estate in bringing a suit against the trustee. When we consider the fact that each ward of William Ash had a several claim, some of the seeming difficulties of the situation disappear. Mrs. Miller, according to the allegations of the complaint, had a distinct, individual claim against the estate of her deceased guardian which existed just as independently and separately as if the other ward had been a stranger and not her brother. It is true that these plaintiffs when they presented their claim against Ash designated themselves as "joint claim

MELVIN, J. This case was decided by the District Court of Appeal and afterward an order for a rehearing was duly granted by this court. The suit was against the ex-ants." It is also true that attached as an executor and executrix of the estate of W. H. hibit to this claim is a full statement of the Ash; the plaintiffs being Elizabeth Miller facts regarding Ash's receipt of the $4,000 in and the three sons and sole heirs of her de- compromise of the claims of his wards against ceased brother, Robert Read. The complaint the estate of Reynolds. This indicates that very fully set forth the appointment of Ash there was in reality no joint interest, but as guardian of the persons and estates of that Ash had mingled and appropriated money Mrs. Miller (formerly Read) and her brother belonging to both estates. His combining of Robert; the payment to Ash, by permission these funds did not make the wards joint of the probate court, of a sum of money in owners, nor did his settlement in gross of compromise of claims against the estate of their claims against Reynolds' estate withone Reynolds, based upon legacies left to out segregation of the amounts severally due Ash's two wards by one of Reynolds' purport- his wards deprive Mrs. Miller of the right to ed wills; the concealment by Ash of the ex- demand her property. If Mrs. Miller had istence of the interests of his wards in Rey-wished to make a separate claim against the nolds' estate and of his collection of money estate of Ash without joining her nephews, in satisfaction of their claims; the filing of his account after many years wherein he falsely asserted that he had received nothing as guardian for the benefit of either ward; their subsequent discovery of his fraud practiced upon them; and many other matters which will more fully appear in the opinion of the District Court of Appeal. The demurrer of defendants to the complaint was sustained, and, upon the refusal of plaintiffs to amend, judgment against them was rendered accordingly. The District Court of Appeal affirmed the judgment of the lower court as to the three heirs of Robert Read, but overruled it as to Mrs. Miller, holding on the authority of Grattan v. Wiggins, 23 Cal. 16, and Robertson v. Burrell, 110 Cal. 579, 42 Pac. 1086, that the action should have been prosecuted for the benefit of the heirs of Robert Read by the administrator of his estate.

In the petition for hearing in this court and in the briefs filed, our attention has been particularly called to the rule that all persons interested in a trust must be made parties to a suit against the trustee. It is contended that this action should have been prosecuted by Mrs. Miller, by the administrator of the estate of her deceased brother Robert Read, and by the three sons of the latter, all as joint plaintiffs, but that no claim having been presented against Ash's estate by the administrator of the estate of Robert Read, deceased, there can be no recovery on the part of any one. It is not necessary here

she could have done only that which was done. She could have merely stated in her claim the circumstances which gave her an interest in that estate. She was not even required to assert the proportion of the fund to which she was entitled. That was a fact to be determined by the probate court because Ash had put it out of her power to calculate just what proportion of the fund received from Reynolds' estate belonged to her. The difficulty of making this calculation was due to a situation of Ash's own creation, and his representatives cannot therefore complain because Mrs. Miller's claim failed to specify some particular share of the $4,000 and interest due her. The failure to segregate the funds belonging, respectively, to Mrs. Miller and her brother was due to the mala fides of Ash. The difficulty, if any there be, resulted from Ash's own act. The claim as presented, therefore, contained all the necessary information respecting Mrs. Miller's interest in the Ash estate. Such claim was the proper basis, after its rejection, of a suit by Mrs. Miller against Ash's executor and executrix. While the decision of the District Court of Appeal will leave some of the complaint as surplusage so far as Mrs. Miller's cause of action is concerned, that does not alter the fact that a cause of action is stated in her behalf.

The opinion of the District Court of Ap peal, which we hereby adopt, is as follows:

"The court below sustained the demurrer to the complaint, and, leave to amend having