physically and mentally ill, and that his judgment was thereby impaired. In this he is corroborated by his physician, and this evidence is not contradicted. Under these circumstances

we are not prepared to say that the respondent should be disbarred.

For the reasons given the application is denied and the accusation dismissed.

[Civ. No. 1756. Third Appellate District.-December 11, 1917.] COUNTY OF ALAMEDA, etc., Petitioner, v. JOHN S. CHAMBERS, as Controller, etc., Respondent.

CONSTITUTIONAL LAW- - APPROPRIATION FOR Loss oF STATE FAIR ExHIBITS-PURPOSE NOT PUBLIC.-The act of the legislature appropriating money to pay the claims of various persons and counties against the state of California for losses sustained by fire in the state agricultural society's pavilion at Sacramento, California (Stats. 1917, p. 1668), is not an appropriation for a public purpose, since it provides for compensation for the loss of property, and the destruction of property does not contribute to the promotion of the public interest.

ID.-INVALIDITY OF ACT-EFFECT OF STATE AGRICULTURAL SOCIETY ACT OF 1880.-The act appropriating money to compensate persons and counties for losses sustained by fire in the state agricultural society's pavilion is invalid, in view of subdivision 5 of the act of 1880 (Stats. 1880, p. 49), which vests in the state board of agriculture the exclusive management and control of state fairs, and provides that in no event shall the state be liable for any premium awarded or debt created by such board. ID.-GIFT-ACT UNCONSTITUTIONAL.-The act appropriating money to compensate counties and persons for loss of exhibits by fire in the state agricultural society's pavilion is invalid, in view of article IV, section 31, which provides that the legislature shall have no power to make any gift to any individual, municipality, or other corporation, by reason of the inclusion of individuals therein, although the act might be valid as to counties.

APPLICATION for a Writ of Mandate originally made to the District Court of Appeal for the Third Appellate District to compel the state controller to draw his warrant for a sum of money appropriated by the legislature to pay for loss of state fair exhibits.

The facts are stated in the opinion of the court.

W. H. L. Hynes, District Attorney of Alameda County, for Petitioner.

U. S. Webb, Attorney-General, and Robert T. McKisick, Deputy Attorney-General, for Respondent.

BURNETT, J.-Petitioner asks for a writ of mandate to compel the respondent, as controller, to issue his warrant for the sum of $4,603.96, under the provisions of an act of the legislature (Stats. 1917, p. 1668), which reads as follows:

"The sum of thirty thousand dollars, or so much thereof as may be proved to be due, is hereby appropriated out of any moneys in the state treasury not otherwise appropriated, to pay the claims of various persons and counties against the state of California for losses sustained by fire in the state agricultural society's pavilion at Sacramento, California, subject to the provisions of section six hundred sixty-three of the Political Code."

Section 663 of the Political Code, above referred to, provides that "every claim against the state for which an appropriation has been made or for which a state fund is available, must be presented to the board [of control] for its scrutiny before being paid."

The petition alleges that the county of Alameda is a body corporate and politic of the state, and a political subdivision thereof; that on the 3d of September, 1916, the state of California maintained in the city of Sacramento a state fair; that the county of Alameda, on said date, "was the owner of an exhibit suitable to be used for exhibition at fairs such. as that maintained by said state; that said state fair was conducted by the state for the purpose of promoting the best interests and welfare of said state, and for the purpose of advertising and making known the resources and products thereof; that various counties of the state, of which the petitioner is one, for the purpose of aiding the said state in the conduct and maintenance of said fair, maintained exhibits thereat"; that, for the purposes aforesaid and at the request of the state, said county of Alameda placed its said exhibit in the charge of the state and its duly authorized officers conducting said fair, and that said exhibit was of the reasonable market value of five thousand dollars; that, on said third day of September, 1916, said exhibit was completely destroyed by

fire; that it was negligently housed by the state and was permitted to be kept "in a building temporarily constructed of canvas and other inflammable material, not suitable or safe for the housing of such an exhibit." It is then alleged that on August 11, 1917, after scrutiny by the board of control, said claim was allowed and approved by said board for the sum of $4,603.96, and was sent to the respondent for the purpose of having him draw his warrant for said sum, which respondent has refused to do.

Respondent filed an answer denying specifically all the allegations of the petition above set forth, except that petitioner is a body corporate and politic. It is then alleged in the answer that petitioner "did, through its authorized officers, and prior to the third day of September, 1916, hire of and rent from the state of California a certain space in a building belonging to said state upon the state fair grounds, for the purpose of placing in said building . . . an exhibit for the purpose of advertising the products and resources of said county of Alameda, and that said county paid to said state for said exhibit space so rented a valuable consideration"; that petitioner placed said exhibit in said building in charge of its duly authorized agents, and that the building was properly constructed; that the fire referred to was not due to the fault of the state or any of its officers.

There is also an allegation in the answer that the petition does not state facts sufficient to constitute a cause of action, or to entitle petitioner to the relief prayed for.

The respondent declined to issue his warrant for the sum found by the board of control to be due petitioner on account of said loss, on the ground that the claim was repugnant to the provisions of section 31, article IV, of the constitution, providing that "the legislature shall have no power. . . to make any gift, or authorize the making of any gift, or any public money or thing of value to any individual, municipal or other corporation whatever."

The position taken by petitioner in support of his contention that the writ should issue is (1) that the act is constitutional on its face, and, therefore, must be upheld, the court not being allowed to examine into extraneous questions of fact; (2) that the act does not make a gift within the constitutional inhibition but is an appropriation for a public purpose; and (3) that, conceding that the legislation in ques

tion does make a gift as that term is used in section 31 of article IV of the constitution, still the county is not a "corporation" as that term is used in said section.

In support of the contention that the act is constitutional on its face, petitioner cites Stevenson v. Colgan, 91 Cal. 649, [25 Am. St. Rep. 230, 14 L. R. A. 459, 27 Pac. 1089]; and Rankin v. Colgan, 92 Cal. 606, [28 Pac. 673]. Both of these cases occurred before 1893, in which year the legislature passed an act permitting persons to sue the state for negligence, where their claims had been denied by the board of examiners. (Stats. 1893, p. 57.)

In Stevenson v. Colgan, the act in question provided: "The sum of $125 per month, payable monthly for the period of twenty-one months, is hereby appropriated out of any moneys in the state treasury not otherwise appropriated for the relief of Colonel Jonathan D. Stevenson; provided, however, that said appropriation shall cease upon the death of said Stevenson if he shall die before said period has elapsed; the sums paid under the provisions of this act to be accepted by the said Stevenson in full payment and satisfaction of all claims of every kind and nature that he may have or claim to have against said state for services, or otherwise."

It was objected by the controller that as a matter of fact Stevenson had no claim against the state. The court held that the act was constitutional on its face, saying among other things: "The act in question does not show upon its face the nature of the claim which the petitioner made against the state."

In Rankin v. Colgan, the act in question read: "The sum of $250 is hereby appropriated out of any moneys in the state treasury not otherwise appropriated, to pay James W. Rankin for services in the state treasurer's office during the period elapsing from November 13, 1884, to December 15, 1884, both dates inclusive, under appointment by Governor George Stoneman, on account of the delinquencies of Arthur January, deputy state treasurer.'

The court relied on the Stevenson case, saying inter alia: "The nature of the services rendered under and by virtue of his appointment by Governor Stoneman does not appear."

The foregoing cases would be in point and conclusive of the controversy here were it not for the recital in the appropriation of the purpose for which it was made, namely, "to

pay the claims of various persons and counties against the state of California for losses sustained by fire in the State Agricultural Society's pavilion." In other words, if the act had simply provided that "the sum of thirty thousand dollars or so much thereof as may be proved to be due is hereby appropriated out of any moneys in the state treasury not otherwise appropriated to pay the claims of various persons and counties [enumerating them] against the state of California, subject to the provisions of section 663 of the Political Code," there would be an end to the inquiry after the board of control had allowed the claim of such person or county, and this for the reason stated in the Stevenson case, but since the legislature has seen fit to declare the nature of the claim, we are compelled to inquire whether it may be legally regarded as the basis of a debt or obligation on the part of the state. That it is an appropriation for a public purpose can hardly be successfully asserted. It provides for compensation for the loss of property, and manifestly the destruction of property does not contribute to the promotion of the public interest. The cases cited by petitioner as to this point are essentially different, as is readily apparent. In Daggett v. Colgan, 92 Cal. 53, [117 Am. St. Rep. 95, 14 L. R. A. 474, 28 Pac. 51], an act appropriating three hundred thousand dollars for the purpose of erecting a building and exhibiting the state's products at the Chicago fair was attacked. It was held, however, that the appropriation was for a public purpose and for the promotion of the public welfare, the court, among other things, saying: "There is no difference except in degree between the appropriation contained in this act and those which for years have been made without any question as to their validity for the support of the state agricultural fair, and the various district agricultural societies throughout the state." The justification for such expenditure was based upon the proposition that the state has the general power to provide for the public welfare, "the limits of which are perhaps not capable of exact definition."

So in Board of Directors v. Nye, 8 Cal. App. 527, [97 Pac. 208], an appropriation for the relief and support of the Women's Relief Corps Association was upheld on substantially the same ground, it being clearly pointed out that the association constituted a state institution engaged in an important and patriotic public purpose.