The same principle is expounded and applied in the County of Sacramento v. Chambers, 33 Cal. App. 142, [164 Pac. 613], wherein was involved an appropriation by the state in aid of work for the relief of tuberculosis carried on by counties under the direction of the state authorities.

If the appropriation here had been made for the purpose of paying expenses incurred in connection with the undertaking of making an exhibit of the state's resources, it could be said undoubtedly that it was for a public purpose, but that situation is not presented, at least not directly so.

But may we not assume that this appropriation was in recognition of an obligation of the state connected with and growing out of the promotion of such public purpose? In other words, may we not hold that the state may have made a contract with the county of Alameda to place said exhibits in the custody of the former in furtherance of the purposes of the state fair, and, therefore, became liable as bailee for the safekeeping of said property? If so, the case would fall under the rule announced in Chapman v. State, 104 Cal. 690, [43 Am. St. Rep. 158, 38 Pac. 457], wherein it was held that "a cause of action for damages for the loss of coal received at a public wharf, under the jurisdiction of the state harbor commissioners, in consideration of wharfage and dockage paid to them, and which was agreed to be delivered on such wharf for removal therefrom and which was lost by the breaking away of the wharf through neglect of the harbor commissioners to keep the wharf in repair, is grounded in breach of contract and not merely upon the negligence of the harbor commissioners; and the state is liable for the loss of the coal." The decision was grounded upon the principle that a state is bound by the same rules as an individual in measuring its liability on a contract, and to that effect a quotation was made with approval from People v. Stephens, 71 N. Y. 549. The rule, though, necessarily presupposes a valid contract with the state. (Melvin v. State, 121 Cal. 16, [53 Pac. 416].) But the trouble with the supposition in the case here is that the state cannot make such contracts and that it is not liable for any debts contracted in reference to the exhibits at the state fair. Section 5 of "An act to provide for the management and control of the State Agricultural Society of the State" (Stats 1880, p. 49) provides: "The State Board of Agricul ture shall be charged with the exclusive management and

It

control of the state Agricultural Society as a state institution; shall have possession and care of its property and be intrusted with the direction of its entire business and financial affairs. . . . They shall provide for an annual fair or exhibition by the Society of all the industries and industrial products of the state at the City of Sacramento; provided, that in no event shall the state be liable for any premiums awarded or debt created by said Board of Agriculture." is thus to be seen that all such contracts must be made by said board and that the state incurs no liability therefrom. The act was under consideration in the Melvin case, supra, and it was held that said proviso "is to be construed as intended to hold the state free from liability for the obligations which the state board of agriculture might incur, calling directly or indirectly for the payment of money." The state, therefore, could not have incurred any liability for such exhibits by virtue of any contract, and, hence, no action could be maintained for damages for the violation of such contract.

The question remains whether the state could be liable for a tort. As to this, in the Melvin case, it is said: "The states are not suable except with their own consent. . . . No claim arises against any government in favor of an individual by reason of the misfeasance, laches, or unauthorized exercise of powers by its officers or agents." This is true, at least, in the discharge of governmental functions although the rule may be different where the government is exercising some proprietary right.

It has been furthermore decided that no additional right was conferred by the act of February 28, 1893, entitled "An act to authorize suits against the state and regulating the procedure therein." This act has been regarded as simply affording a remedy where the corresponding right already exists. It is so held in Melvin v. State, supra.

In Molineur v. State, 109 Cal. 378, [50 Am. St. Rep. 49, 42 Pac. 34], the effect of this act was considered as to its bearing upon the liability of the state to pay additional interest upon its war bonds. It was said: "Inasmuch as prior to the passage of the act there was no liability for interest on the part of the state, it was not competent for the legislature to create such liability by the passage of the act."

To the same effect is Davis v. State, 121 Cal. 210, [53 Pac 555], wherein it was said: "The act is a mere waiver within

certain bounds of the state's sovereign prerogative not to be sued."

In Denning v. State, 123 Cal. 316, [55 Pac. 1000], it was declared that this act "did not create any liability or cause of action against the state where none existed, but merely gave an additional remedy to enforce such liability as would have existed if the statute had not been enacted." That decision is also very instructive as to the question whether the state is liable for the tort of its officers. The plaintiff therein was employed by the board of harbor commissioners as a night deckhand upon its tugboat belonging to the state and used by said board. While engaged in said employment, plaintiff was injured, through the negligence, as he claimed, of the state acting by said harbor commissioners. It was conceded by the plaintiff that an action would not lie against the state for injuries caused by the negligence of its officers or agents in the discharge of a purely governmental duty, but it was claimed that the defendant was engaged in the discharge of a purely business function, and, therefore, it was liable for negligence. This phase of the subject was carefully considered and the conclusion reached that while certain duties performed by said board would indicate a business for profit, the particular branch of the service in which the plaintiff was engaged, namely, the protection against or extinguishment of fires, constituted the exercise of a purely governmental function. As to this matter, it would seem no doubt could exist that anything done by the state as to the exhibits at the state fair must necessarily relate to the general public welfare and could not in any just sense be regarded as an act for the promotion of business for profit.

The said act of 1893 is also referred to in County of San Luis Obispo v. Gage, 139 Cal. 398, [73 Pac. 174], and Bickerdike v. State, 144 Cal. 681, [78 Pac. 270], but neither has any relation to the point herein involved.

In Union Trust Co. v. State of California, 154 Cal. 716, [24 L. R. A. (N. S.) 1111, 78 Pac. 270], the question involved was as to the liability of the state for the payment of certain "Montgomery Avenue Bonds," and it was held that the officers whose duty it was to levy and collect the assessments necessary to discharge the bonds were agents of the state and were charged with governmental functions, and that the state was not liable for their negligence, since they were en

gaged in discharging ordinary official duties pertaining to the administration of the government of the state.

The most recent decision of the supreme court involving a consideration of the difference between a private or proprietary and a governmental capacity in which a municipality or state may exercise its functions is Chafor v. City of Long Beach, 174 Cal. 478, [163 Pac. 670]. Therein it was held that a city in constructing and maintaining an auditorium was acting in its proprietary capacity, and was liable for damages to plaintiff caused by the negligent maintenance of the structure. That case is manifestly different from this in the nature of the enterprise and in the circumstance that it affected a municipality instead of the state.

We think it must be held that the appropriation is one based upon an implied liability that cannot legally exist either by virtue of a contract or by reason of the negligence of the officers of the state, since the tort, if committed, related to a governmental function instead of a proprietary business.

It would seem, therefore, that the appropriation not being based upon any legal liability constitutes a gift within the contemplation of said constitutional provision, and cannot be maintained.

There remains the other proposition that the county is but an agency of the state and not a "corporation" as the term is used in said section 31, article IV, of the constitution. Hence, it is contended that the inhibition against a "gift" does not apply to petitioner. The character of a county as an entity has been carefully considered in some of the cases cited herein, especially in County of Sacramento v. Chambers, supra, but the point, if well taken, cannot save the situation. The appropriation is of one lump sum for individuals and for counties, and it is quite apparent that the legislature intended to treat such claims upon the same basis. There was no appropriation of a specific amount for the claims of individuals and a distinct appropriation for the counties. Upon the assumption, therefore, that the indivisible part of the appropriation for the claims of counties may be regarded as legal, it is impossible to determine what that portion is; in other words, how much or what portion of the act is valid and what invalid. They are so inseparably connected that the unconstitutional character of the appropriation for individuals permeates and vitiates the whole act. If

85 Cal. App.-35

it be not so, it would be difficult to conceive of a case for the application of the familiar rule for considering an act as an entirety where it was manifestly the intention of the legislature to so regard it.

It is believed that the appropriation cannot stand, and the demurrer is, therefore, sustained and the order to show cause discharged.

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

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on February 7, 1918.

[Civ. No. 2233. First Appellate District.—December 12, 1917.] MELVILLE CHRISTIE, Respondent, v. W. E. McCALL, Appellant.

NEGLIGENCE PLEADING SUFFICIENCY OF COMPLAINT.-A complaint in an action to recover damages for personal injuries sustained in a collision between the defendant's automobile and the plaintiff upon his bicycle sufficiently alleges negligence where it is alleged that the defendant neglected and omitted to operate his automobile so as to prevent it from running into the plaintiff and injuring him. ID. EXCESS OF SPEED LIMIT-DEMURRER-UNCERTAINTY-ERROR WITHOUT PREJUDICE.-In such an action error in overruling a demurrer to the complaint for uncertainty as to whether the complaint was charging the defendant with exceeding the rate of speed prescribed by the Motor Vehicle Act for observance by the driver of an automobile when approaching a sharp curve, or that applying to the crossing of intersecting streets, is without prejudice where the case went to trial and the facts were all fully developed.

APPEAL from a judgment of the Superior Court of Humboldt County. George D. Murray, Judge.

The facts are stated in the opinion of the court.

Coonan & Kehoe, for Appellant.

Pierce H. Ryan, for Respondent.