Patty v. Colgan

18 L.R.A. 744, 31 P. 1133, 97 Cal. 251, 1893 Cal. LEXIS 522

• Court: California Supreme Court
• Decided: January 23, 1893
• Docket: No. 19043
• Status: Published

Opinion

Paterson, J.

This is an appeal by Hon. E. P. Colgan, state controller, from a judgment of the superior court of San Diego County directing the issuance of a peremptory writ of mandate requiring him to draw a warrant in favor of the board of supervisors of San Diego County in the sum of five thousand dollars for the benefit of the sufferers from the Tia Juana floods of February 22, 1891.

The application of the plaintiff and the judgment of the court were based upon the provisions of an act entitled “ An act to appropriate the sum of five thousand dollars for the benefit of the sufferers from the Tia Juana floods of the 22d of February, 1891, and to provide for the payment to the board of supervisors of San Diego County, and its distribution to the sufferers.” Section 1 of this act reads as follows:—

“ Sec. 1. There is appropriated the sum of five thousand dollars out of any moneys in the general fund not otherwise appropriated, to be paid to the board of supervisors of San Diego County, to be by said board held in trust and paid out for the benefit of the sufferers from the Tia Juana floods, occurring on the twenty-second day of February, eighteen hundred and ninety-one, in San Diego County.”

The act is clearly in violation of the provisions of section 31, article IV., of the constitution, which provides that the legislature shall have no power “to make any gift, or authorize the making of any gift, of any public money or thing of value to any individual.” The object of this provision is stated in Stevenson v. Colgan, 91 Cal. 651.

An act directing the controller to draw his warrant in favor of an individual cannot be impeached by evidence aliunde (Rankin v. Colgan, 92 Cal. 606); but here the facts which show the invalidity of the appropriation appear upon the face of the act, and the application ought to have been denied. (Bourn v. Hart, 93 Cal. 321.)

The judgment is reversed, with directions to the court below to dismiss the proceeding and enter judgment in favor of defendant for costs.

Garoutte, J., and Harrison, J., concurred.