ceit, and thereby prevent the filing, allowance, and payment of such claims, is a clear violation of duty on the part of an administrator. Such a practice will not be allowed to inure to his benefit, or to the benefit of the estate he may represent. The purpose of the above statute is to prevent such wrong. The portion of the petition above set out, the truth of which, of course, is admitted by the demurrer, shows very clearly, as we think, that, by false statements and promises, Diana P. Morgan, while away from friends and sick in the debtor's family, was led to believe that no action on her part was required to procure the adjustment and payment of her claim. Such being the case, her representatives are entitled to have the final settlement set aside and the estate reopened, that they may have an opportunity to prove the claim, and have it paid out of the assets of the estate." And it seems that fraudulent conceal'ment of the existence of the claim by the executor would toll the Indiana statute. See Roberts V. Spencer (1887) 112 Ind. 85, 13 N. E. 129, holding, however, that the claim must be promptly filed after its discovery.

And in Iowa, under a statute providing that claims against an estate, if not filed within a specified period, are forever barred unless pending in court, or "unless peculiar circumstances entitle the claimant to equitable relief," it has been held that it would be inequitable to defeat a claim because of delays which were in fact indulgences to the personal representative, granted at his special request. Brayley v. Ross (1871) 33 Iowa, 505. And it was held that the bar of the statute should be removed for "peculiar circumstances," in Baldwin v. Dougherty (1874) 39 Iowa, 50, where it appeared that the administrator notified a creditor residing in a distant state that his claim had been properly filed, and subsequently impliedly assured the creditor's personal representative that the claim would be paid, all of which resulted in the claim not being actually filed within the statutory period. And again, in Burroughs v. McLain (1873) 37 Iowa,

189, where the failure to file a claim was caused by reliance upon the promise of the administrator to allow and pay it and his statement that it was unnecessary to file it, together with partial payment by the representative, it was held that "peculiar circumstances" warranting equitable relief existed. On the other hand, it has been held that a mere unconditional promise by the personal representative to pay a claim does not constitute "peculiar circumstances" within the meaning of the Iowa statute. Colby v. King (1885) 67 Iowa, 458, 25 N. W. 704. Nor do mere "suppositions and understandings" on the part of a creditor that his claim has been allowed and filed warrant equitable relief,at least, in the absence of a showing that he had good reason, arising from the action of the administrator, so to suppose or understand; mere erroneous suppositions and understandings not based on reasonable grounds not amounting to legal fraud, accident, or mistake. Ferrall v. Irvine (1861) 12 Iowa, 52. And in Manning v. Stout (1895) 93 Iowa, 233, 61 N. W. 963, it was held that the fact that an executor told a creditor not to file his claim, reference being had to an account, as he wished to pay it, did not excuse the failure to file a note which the executor did not know existed.

And in Massachusetts, under a statute allowing an equitable action where the claim is not presented within the period prescribed by the special Statute of Limitations, "where justice and equity require" relief, and the claimant "is not chargeable with culpable neglect," it has been held that equitable relief will not be granted upon a showing that the executor knew of the claim, and admitted it to be a valid one, and expressed a wish and intention to pay it out of expected funds, and assured the creditor that no further legal proceedings were necessary, in reliance upon which representations the claimant failed to sue within the statutory period. Wells v. Child (1866) 12 Allen (Mass.) 330. But for an inference that in Maine, under a statute authorizing equitable relief at the suit of a creditor whose

claim has not been presented within the nonclaim statutory period, where the court is of "opinion that justice and equity require it," and that the creditor is not chargeable with culpable neglect, the agreement of an administrator to include and pay an account is sufficient to excuse delay in filing the same, see Holway v. Ames (1905) 100 Me. 208, 60 Atl. 897.

In Missouri, while admitting that an executor or administrator cannot revive a demand against an estate which has once been barred under the Administration Law, it has been held that he may validly contract in good faith for an extension of an existing obligation, so that where such an extension prevents the proving of a claim within the statutory period after publication of notice for filing of claims, the creditor may maintain an action when the renewal obligation matures, although such two-year period has fully elapsed. North v. Walker (1877) 66 Mo. 453, affirming (1876) 2 Mo. App. 174, and following Smarr v. McMaster (1864) 35 Mo. 351.

In Bell v. Mills (1903) 59 C. C. A.

104, 123 Fed. 24, in applying a California statute which required that every claim allowed by executors and approved by the superior court must be filed within thirty days thereafter, it was held, where a claim had been allowed and approved but not filed, that the default was that of the executors, and that their omission to file the claim within the statutory period could not injuriously affect the right of the creditor. Here, however, the court seems to have regarded it as the duty of the executors, rather than the creditor, to file the claim.

In Hamilton v. Wright (1905) 27 Ky. L. Rep. 1144, 87 S. W. 1093, where an executor prevented reference of a settlement suit to a commissioner by affidavits showing that a delay would be beneficial, assured the claimant that his claim would be paid in full, and requested him not to sue, thereby preventing the filing of the claim within the statutory period, it was held that the executor was estopped to set up the Statute of Nonclaim as a ground of forfeiture of right to interest. G. J. C.

Messrs. J. E. McCurdy and Walter H. Linforth for petitioner.

Mr. Douglas Brookman, for respond

ents:

Petitioner is a public utility under the Constitution and statutes of California.

Allen v. Railroad Commission, 179

Cal. 68, 8 A.L.R. 249, P.U.R.1919A, 398, 175 Pac. 466; Palermo Land & Water Co. v. Railroad Commission, 173 Cal. 380, P.U.R.1917A, 447, 160 Pac. 228; Del Mar Water, Light & P. Co. v. Eshleman, 167 Cal. 666, 140 Pac. 591, 948; Magee v. Pacific Improv. Co. 98 Cal. 678, 35 Am. St. Rep. 199, 33 Pac. 772. Petitioner is subject to the jurisdiction of the Railroad Commission.

Civic Center Asso. v. Railroad Commission, 175 Cal. 441, P.U.R.1917E, 697, 166 Pac. 351.

Mr. Hugh Gordon also for respond

ent Commission.

Messrs. Stoney, Rouleau, Stoney, & Palmer, for other respondents:

The state has power, either through its Railroad Commission or a city board of supervisors, to compel a public utility to continue operation, even at a loss.

Re Denver, L. & N. R. Co. 3 Colo. P. U. C. 316, P.U.R.1917F, 744; Culver v. St. Joseph & G. I. R. Co. 4 Mo. P. S. C. 381, P.U.R.1917B, 574.

Petitioner has made to no one a bona fide offer of its property and plant.

Fellows v. Los Angeles, 151 Cal. 52, 90 Pac. 137.

Ownership by a public utility of the source of water supply is immaterial. Napa Valley Electric Co. v. Calistoga Electric Co. 174 Cal. 411, 163 Pac. 497.

Wilbur, J., delivered the opinion of the court:

Petitioner seeks the review of an order of the Railroad Commission, requiring it to re-establish its service of domestic water in a certain residence district of the city and county of San Francisco, known as Lincoln Manor. Petitioner subdivided this tract, and, for the purpose of furnishing domestic water to the purchasers of lots therein, laid water pipes in the streets thereof, purchased water from the Spring Valley Water Company, and, by means of a pumping system, distributed it to the purchasers of lots within the tract. As fast as lots were sold and water connections desired for residences located thereon, the same were made. The same water rates were charged by the petitioner as by the Spring Valley Water Company. As soon as all the lots in the tract were sold, the petitioner discontinued said water service, and offered

Petitioner claims that it is not a public utility. It also claims, if it is a public utility, that the control over it is vested in the board of supervisors of the city and county of San Francisco, and not in the Railroad Commission. In view of our conclusion that the state has no power, either directly or through the board of supervisors of the city and county of San Francisco or the Railroad Commission of the state of California, to make the order in question, it is unnecessary to determine either of the foregoing points raised by the petitioner.

The state has no power to compel the continued operation of a public utility at a loss, where the owner of that utility is will

ing to and does in Constitutional law-compelfact abandon to the ling public public all its prop- operate at loss. utility to erty that has been

devoted to the public use. Since the submission of this case the Supreme Court of the United States has passed upon this question, and for that reason a discussion of the various decisions cited by the respondent in support of the order of the Railroad Commission is unnecessary. That court decided that "a carrier cannot be compelled to carry on even a branch of its business at a loss, much less the whole business of carriage." Brooks-Scanlon Co. v. Railroad Commission, 251 U. S. 396, 64 L. ed. 323, P.U.R.1920C, 579, 40 Sup. Ct. Rep. 183. A similar conclusion was suggested by our earlier decision in Fellows v. Los Angeles, 151 Cal. 52, 64, 90 Pac. 141, where it