Dunn

I concur in the order for the writ. There was no provision in the original lease that the road should revert to the state at the expiration of the term, or ever, but there was a provision that the state, or the board of commissioners, might become the purchaser thereof whenever it should so elect. The state or board did not purchase, during the term, but permitted the petitioners to remain in possession for the time *270 being, and subsequently made to them a second lease for ten years. The board of commissioners, on behalf of the state, is now buying out the road, as it was originally provided it might do. I think they have the right to make the purchase; of the policy of doing it this court is not the judge.

Sharpstein, J., concurred in the opinion of Mr. Justice Fox.

Paterson, J., dissented.

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: —

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…