Held, it appearing that appellant was not an innocent party to the transaction, and being in pari delicto, the law leaves her where it finds her. Wymans v. Moore, opinion filed June 26, 1894.

An agreement between stock broker and his customer by which the broker agrees to buy stocks for the customer, the broker advancing money, and charging commissions and interest on money advanced and holding stocks purchased as security, the customer receiving or being charged with the difference between the buying and selling price of the stocks, is a contract for sale of stocks on margin, and land conveyed by the customer to secure the broker for advances made by the broker may be recovered in an action therefor. Cashman v. Root, 89 Cal. 374. Approved in Wetmore v. Barrett, et al., opinion filed June 26, 1894. Also approved in Sheehy. Shinn, opinion filed June 29, 1894. In the concurring opinion of McFarland, J. it is said, "The judiciary cannot avoid the consequences of a provision of constitutional law which allows a party to a contract to profit by it as long as it pays, and to repudiate it by boldly ignoring his solemn obligations as soon as it begins to show loss."

A contract between brokers, whereby one agrees to purchase and sell stock on account of the other, advancing money and paying assessments, is not prohibited by this section; it was not a case of sale. Kutz v. Fleisher, 67 Cal. 93.

Under this section the legislature is prohibited from authorizing lotteries for any purpose, and the section is mandatory upon it to pass laws prohibiting the sale of tickets for anything in the nature of a lottery. Sections 319 to 326, Penal Code, and the ordinance of San Francisco making it a misdemeanor for any one to have a lottery ticket in his possession are in consonance with this mandate. All such laws should have a liberal construction with a view to carry out the constitutional policy. Collins v. Lean, 68 Cal. 284.

SECTION 27. When a congressional district shall be composed of two or more counties, it shall not be separated by any county belonging to another district. No county, or city and county, shall be divided in forming a congressional district so as to attach one portion of a county, or city and county, to another county, or city and county, except in cases where one county, or city and county, has more population than the ratio required for one or more congressmen; but the legislature may divide any county, or city and county, into as many congressional districts as it may be entitled to by law. Any county, or city and county, containing a population greater than the number required for one congressional district, shall be formed into one or more congressional districts, according to the population thereof, and any residue, after forming such district or districts, shall be attached by compact adjoining assembly districts, to a contiguous county or counties, and form a congressional district. In dividing a county, or city and county, into congressional districts, no assembly district shall be divided so as to form a part of more than one congressional district, and every such congressional district shall be composed of compact con tiguous assembly districts.

Const. 1849, Art. IV, Sec. 30.

SECTION 28. In all elections by the legislature the members thereof shall vote viva voce, and the votes shall be entered on the journal.

Const. 1849, Art. IV, Sec. 38.

This section is referred to in Oakland Pav. Co. v. Hilton, 69 Cal. 512, where it is said to be mandatory that an actual entry in the minutes should be made of such matters as are directed to be entered in sections 10, 15, 16, 28 of this article. In People v. Dunn, 80 Cal. 211, it is said, the question as to the power of the court to go behind the enrolled bill in order to determine from the journals of the two houses whether the bill was properly passed or not is not presented, but it is decided that the position that every act not shown by the journals to have taken place must be presumed not to have been done, is not tenable. See cases given under section 15, this article.

SECTION 29. The general appropriation bill shall contain no item or items of appropriation other than such as are required

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to pay the salaries of the state officers, the expenses of the government, and of the institutions under the exclusive control and management of the state.

The act of March 13, 1883, (Stats. p. 292) making appropriation for salary of Supreme Court reporter is valid. Smith v. Dunn, 64 Cal. 164.

That no money can be drawn from the treasury except in consequence of appropriation made by law, and warrant of controller, and that when drawn without authority of law, it may be recovered back. People v. Chapman, 61 Cal. 263. (Sec. 22, Art. IV.)

The act of March 14, 1889, (Stats. p. 149) appropriating one hundred thousand dollars to maintain a mining bureau is constitutional. Proll v. Dunn, 80 Cal. 220. (Sec. 22, Art. IV.)

SECTION 30. Neither the legislature, nor any county, city and county, township, school district, or other municipal corporation, shall ever make an appropriation, or pay from any public fund whatever, or grant anything to or in aid of any religious sect, church, creed, or sectarian purpose, or help to support or sustain any school, college, university, hospital, or other institution controlled by any religious creed, church, or sectarian denomination whatever; nor shall any grant or donation of personal property or real estate ever be made by the state, or any city, city and county, town, or other municipal corporation for any religious creed, church, or sectarian purpose whatever; provided, that nothing in this section shall prevent the legislature granting aid pursuant to section twenty-two of this article.

SECTION 31. The legislature shall have no power to give or to lend, or to authorize the giving or lending, of the credit of the state, or of any county, city and county, city, township, or other political corporation or subdivision of the state now existing, or that may be hereafter established, in aid of or to any person, association, or corpo ration, whether municipal or otherwise, or to pledge the credit thereof, in any manner whatever, for the payment of the liabilities of any individual, association, municipal or other corporation whatever; 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 indi

vidual, municipal or other corporation whatever; provided that nothing in this section shall prevent the legislature granting aid pursuant to section twenty-two of this article; and it shall not have power to authorize the state, or any political subdivision thereof, to subscribe for stock, or to become a stockholder in any corporation whatever.

Courts take judicial notice of fact that under statutory requirements, all contracts for street improvements in San Francisco contain express conditions that in no case will that municipality be liable for any portion of expense of said work, or any delinquency of persons or property assessed. Held, the act of 1891, (Stats. p. 513) directing supervisors to pay one C. an amount unpaid on contracts for improvement of public streets for which he has not been able to obtain compensation according to the mode of procedure in such cases made and provided by statute, shows on its face a gift of public money and is void. Conlin v. Board of Supervisors, 99 CaĬ.

17.

A legislative appropriation for the benefit of sufferers by the Tia Juana flood, is upon its face a gift and void. Patty v. Colgan, 97 Cal. 251.

Where an act of the legislature does not show upon its face that it appropriates money as a gift, evidence aliunde will not be received on petition for mandate for the purpose of determining that it is intended as a gift. Stevenson v. Colgan, 91 Cal. 649. And when such act purports only to provide compensation for an officer, evidence aliunde will not be received to show that the appropriation is for a prohibited purpose. Rankin v. Colgan, 92 Cal. 606. În passing upon the constitutionality of a statute, only the facts appearing upon the face thereof, together with such matter as is taken judicial notice of, will be considered; and averments of facts, aliunde in the pleadings will not be considered. After the occurrence of an injury to a servant of the state, the state cannot assume liability therefor. It might assume such liability by a general law enacted prior to such injury. A statute appropriating money to an individual in payment of a claim for

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damages resulting from personal injuries received by him while in the employ of the state, imports a gift and such appropriation is void. Bourn v. Hart,

93 Cal. 321.

To constitute a gift by the legislature, within the inhibition of the constitution, there must be a gratuitous transfer of the property of the state; made voluntarily and without consideration. The act of the legislature (Stats. 1889, p. 142), providing for the purchase of the lease of the Yosemite and Wawona road and making an appropriation therefor is not a gift. Yosemite, S. & T. Co. v. Dunn, 83 Cal. 264.

The legislature has no authority to vote extra compensation to watchmen, porters, pages, etc., for services already rendered. Robinson v. Dunn, 77 Cal. 473.

SECTION 22. The legislature shall have no power to grant or authorize any county or municipal authority to grant any extra compensation er allowance to any public officer, agent, servant or contractor, after service has been rendered, or a contract has been entered into and performed, in whole or in part, nor to pay, or to authorize the payment of, any claim hereafter created against the state, or any county or municipality of the state, under any agreement or contract made without express authority of law; and all such unauthorized agreements or contracts shall be null and void.

An act appropriating ten thousand dollars to A. J. Bourn, a state prison guard who lost an arm while in discharge of his duties, and acting under orders of his superior officers, is unconstitutional. Bourn v. Hart, 93 Cal. 321, approving Stevenson v. Colgan, 91 Id. 649, to the effect that the constitutionality of a statute must be determined by the court from what appears on its face, when considered with reference to matters judicially noticed by the court. In Rankin v. Colgan, 92 Id. 606, it is held that where an act providing compensation for an officer does not appear invalid on its face, evidence outside the record will not be received on petition for mandamus, to show that the appropriation is one prohibited by the constitution.