Yosemite Stage & Turnpike Co. v. Dunn

Foote, C. This is an application for a writ of mandate to compel the controller of the state to draw his warrant upon the state treasurer for the sum of eight thousand dollars in favor of the petitioner.

The controller refuses to draw the warrant, because, as he alleges, the legislature had no power, under the constitution, to pass the law, by virtue of which the petitioner claims the right to draw the eight thousand dollars from the treasury.

It is contended by the counsel for the respondent that the money voted to the petitioner, by the act in question, is á gift, and as such is inhibited by article 4, section 31, of the state constitution.

The portion of the constitution under consideration is: —

“ Sec. 31. The legislature shall have no power, . . . . nor shall it have power, to make any gift, or authorize the making of any gift, of any public money or thing of value to any individual, municipal, or other corporation whatever.”

The Civil Code, section 1146, says: “A gift is a transfer of personal property, made voluntarily, and without consideration.”

To be a gift, this voluntary transfer must be gratuitous,—a handing over to the donee something for nothing.

Upon the face of the act of the legislature upon which the petitioner’s contention is made, it appears that the legislature appropriated eight thousand dollars to purchase from the Yosemite Stage and Turnpike Company its road running from the line of the grant to the floor of the valley, by Inspiration and Artists’ points, a distance of eight miles, and known as the Yosemite and Wawona road. (Acts 1888, p. 142.) It is clear, therefore, that, so far as the legislature was concerned, its intention was to purchase a road in which it believed the petitioners had an interest, at least, worth purchas[266]ing, and that no gratuitous donation was intended to be made.

Was one in fact made? The agreed facts in the case are: “1. That heretofore, and on the first day of January, 1875, the commissioners to manage the Yosemite Valley and Mariposa Big Tree Grove made and entered into a contract and agreement with Washburn, Chapman & Co., hereto attached and made part hereof, marked “Exhibit A”; 2. That said Washburn, Chapman & Co. complied with their part of said contract or agreement, and fully performed the same, and constructed the road therein mentioned, and expended thereon the sum of sixteen thousand dollars, or thereabouts, and collected and received the tolls therein mentioned; 3. That the petitioner, the Yosemite Stage and Turnpike Company, has succeeded by assignments and conveyances from Washburn, Chapman & Co. to all and every their rights and privileges under the lease and contract aforesaid; and said Washburn, Chapman & Co., and Yosemite and Turnpike Company, have at all times, since its completion, been in the possession of said road, and using the same in accordance with the terms of the several leases or contracts herein set forth; 4. That on December 17, 1885, and before the expiration of the aforesaid lease, the commissioners to manage the Yosemite Valley and the Mariposa Big Tree Grove passed a resolution extending the terms of said lease, a copy ■whereof is hereto attached, marked “ Exhibit B ”; and on June 6, 1888, said commissioners made and entered into the contractor lease hereto attached, marked “Exhibit 0”; 5. That said Yosemite Stage and Turnpike Company fully performed its part of said contracts or agreements, and is now in possession and use of said road therein mentioned, and has heretofore maintained and is now maintaining the same; 6. That after the passage of the act of the legislature, in the petition mentioned, said Yosemite and turnpike company made, executed, and