This appeal was taken to the Supreme Court of the State of California and thereafter transferred to the Fourth District Court of Appeal, upon a judgment of dismissal of plaintiff’s action, after demurrer sustained to second amended complaint and failure of plaintiff to amend.

The action was brought by the County of San Bernardino to recover from the defendant, Gate City Creamery Company, a corporation, a balance of $1800 alleged to be due and owing upon a subscription contract, whereby the defendant had undertaken and agreed to pay a contribution of $2,000 toward the purchase of a site for the county courthouse.

The subscription agreement was executed by the defendant and a number of other citizens and taxpayers of San Bernardino for the payment of various individual amounts, and is in words and figures as follows:

The courthouse site designated in this agreement was accepted and purchased by the Board of Supervisors and the county courthouse constructed thereon. Defendant paid $200 upon its subscription contract, and having refused to pay any further amount this action was brought to collect the unpaid balance. The second amended complaint alleges:

It is conceded and indeed affirmatively alleged in the complaint that the board of supervisors, in selecting the site for the courthouse, was influenced in making such selection, by these stipulated contributions to the purchase price. The sole question to be considered is as to whether or not the acceptance and consideration of such contributions is, in the state of California, against public policy.

It may be conceded, as set out in respondent’s brief, that “subscription contracts to acquire particular sites and to erect thereon public buildings are of three classes:

The case at bar belongs either to the first or third of these classifications. If it can be held that the legislature of the state of California has authorized the consideration and acceptance of this class of subscriptions it will be unnecessary to go further into the discussion of this case.

In enumerating the powers of boards of supervisors, subdivision 6 of section 1041 of the Political Code includes the power: “to purchase, receive by donation, lease or. otherwise acquire water rights, or real or personal property necessary for the use of the county for courthouse, jail, hospital . . . and other public purposes, and also property upon which to sink wells to obtain water for sprinkling roads and other county purposes, and to improve, preserve, take care of, manage and control the same.”

Section 4052a of the Political Code provides that:

It is contended by respondent that the subscription which is the subject matter of the present case is not a gift or donation; that it is merely a conditional promise to contribute to the County of San Bernardino the specified sum of money in consideration of the location of the county courthouse at a designated place. It certainly does not come within the legal definition of a gift. Section 1146 of the Civil Code defines a gift as “a transfer of personal property made voluntarily, and without consideration.” The instrument in question certainly does not transfer any property or thing, and the promise to do so is not absolute, and is for an express consideration which imports something of value to be received by the donor.

There is reason to assume, however, that contributions of this character to the public use were intended by the legislature to come within the provisions of the sections of the statutes above quoted. The use of the words in section 4052a of the Political Code “in trust for any public purpose, and to hold and dispose of the same and the income and increase thereof to and for such lawful uses and purposes as have been or hereafter may be prescribed in the terms of such gift, bequest or devise,” would seem to indicate transactions specifying some particular use and application of the gift directing and restricting the dominion of the public over it to that specific purpose. What may be said to be the almost universal accompaniment of such contributions to the public, gives further force to the language of the legislature as being intended to apply to subscrip tions of the character here under consideration. It rarely happens that such subscriptions to public buildings are not conditioned upon the choice of some specified location. As is said by the Supreme Court of Ohio, in the case of Commissioners of Canal Fund v. Perry, 5 Ohio, 56, an action on a contract to subscribe to the location of a canal:

Whether or not the above code citations may be construed as empowering the board of supervisors to accept and take into consideration a subscription of this kind, they obviously have their bearing upon the question of public policy in this state. They recognize and authorize the acceptance of private contributions in aid of public enterprises, and the fact that legislative sanction or acceptance of such contributions by popular vote removes the ban of corrupting and undue influence, requires only an additional step to sanction such considerations on the part of other representatives of the public interest.

We do not deem it necessary, however, to go to the extent of holding that there is express authority in these code provisions for accepting and considering a subscription of this character in the selection of a site for a public building. Considering the liability created by such a subscription purely on the grounds of public policy, we think that the weight of reasoning and authority is against the contention of respondent. The principle applicable to the definition of the term is well expressed and generally accepted as set forth in 6 California Jurisprudence, at page 109 et seq.:

It will be conceded that any influence brought to bear upon a public board or official which has the evil tendency to influence such officer or board in the discharge of its public duty by trammeling the judgment in matters about which these public representatives should be left free to act as the public interests alone may dictate or require, is against public policy, and if such vitiating element is present and has that, tendency in the eyes of the law, it makes no difference what the actual motive of the public officials in the particular instance may be. But is such a tendency present or apparent in the case in question? Here is a condition where the Board of Supervisors of San Bernardino County is called upon to select and procure a site for a county courthouse. In this, as in every such determination, one of the important considerations to be taken into account is the cost to the public. Other things being equal, it would clearly be the duty of the board to select the site which could be obtained at the least expense to the public. Of two locations offered, otherwise equally desirable, one at the full market value of the property, and the other as a donation, irrespective of the fact that the motive for the gift might be a selfish and self-serving one, it would be clearly the right and duty of the official body to accept the offered donation. What difference in principle is involved if a part or if the whole of the cost of a building site is tendered by a subscription from individuals who expect a profit by a location ?

We have examined each of the numerous authorities cited by counsel in this ease and find that in most of the decisions where the location of a public building has been influenced by private contributions to the cost, and the transaction held to be against public policy, the circumstances have been such that the contribution offered or suggested some personal gain or benefit to the officials having the decision in hand.

In the case of Spence v. Harvey, 22 Cal. 336 [ 83 Am. Dec. 69 ], cited by respondent, the question of the location of a postoffice was involved, and the offer o£ financial aid inured directly to the postmaster. In holding this agreement against public policy, the decision recites:

A similar distinction is pointed out in many of the cited cases. In the present case no personal benefit or advantage was offered or accruing to any member of the board- of supervisors. The subscription tendered was purely in the interest of the tax-paying public, and its acceptance does not even suggest any improper motive.

The true doctrine applicable to this ease, we believe, is set forth in the case of Currier v. United States, 184 Fed. 700, 701 , decided by the Circuit Court of Appeals, involving a contract to contribute to the purchase of a site for a public building. The court says:

Most of the decisions sustaining the validity of this class of contracts subscribing to public improvements do not turn upon the construction of the subscription as a gift, but rather recognize the benefits received by the subscriber as a legitimate and binding consideration.

In Fearnley v. De Mainville et al., 5 Colo. Ap.p. 441 [ 39 Pac. 73 ], the syllabus, as sustained by the text, recites: “A contract by which one, in consideration of another’s leasing to the government a building for a post office at a nominal rent, agrees to pay to the lessor a certain sum for each month of the term is valid, notwithstanding the purpose was to enable the lessor to outstrip other competitors for the location of the office at some other point.”

Stilson v. Board of Commissioners, 52 Ind. 213 , and State v. Johnson, 52 Ind. 197, contain an exhaustive discussion and citation of authorities covering the question of public policy. In the Stilson case the conclusions of the court are covered by the syllabus in the following language: “A written promise to pay into the county treasury a certain sum of money, upon the condition that the county commissioners, who had removed the county courthouse from the public square and were building a new courthouse elsewhere, would remove it back to said square, which offer was accepted by said commissioners, who entered on their records an order for such relocation, was not void as against public policy, though the commissioners were not expressly authorized by statute to receive such donations.”

The court says in the opinion: “The question arising in the record was fully considered, and decided adversely to the appellant, in the case of The State v. Johnson, at the present term, ante, (52 Ind.) page 197. Upon authority of that case the judgment in the present case must be affirmed. The two cases differ in this, that in the above cited case there was a statute which authorized the reception of donations in money or materials, while in the present case there is no such legislative sanction. But the ruling in the present case is predicated upon the general principles of law relating to public policy, as laid down in the above cited case.”

In the case last cited, the court, in discussing the question of public policy, adopted the following proposition:

It would serve no useful purpose to consider all the authorities cited in detail. The general principles discussed may, however, be reinforced by calling attention to the conclusions reached by recognized commentators on the law as to where the weight of authority lies. Corpus Juris, under the subhead “Location of Public Offices,” volume 13, page 437, says:

Ruling Case Law, one of the most careful and reliable compilations of elementary principles as adopted by the courts, on this subject says (6 R. C. L., p. 748) :

In the present instance, nothing appears in the record to indicate that the subscription agreements in question tended in any way to influence the board of supervisors in the selection of a site for the courthouse, beyond the legitimate consideration of the fact that the money subscribed was an element of value to the general public in selecting such location.

The judgment appealed from is reversed.

Barnard, J., and Marks, J., concurred.

A petition for a rehearing of this cause was denied by the District Court of Appeal on February 17, 1930, and a petition by respondent to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on March 20, 1930.

All the Justices concurred.