
    [No. 11362.
    In Bank.
    March 9, 1886.]
    CITY AND COUNTY OF SAN FRANCISCO, Petitioner, v. JOHN P. DUNN, State Controller, Respondent.
    Aged Persons in Indigent Circumstances — Appropriation por Support op—San Francisco Almshouse.—Upon the passage of the act of Maz-ch 15, 1883, znaking an appropriation of money for the support of aged persons in indigent circumstances in certain private institutions, the city and county of San Francisco, under section 22 of article 4'of the constitution, without any further legislative action, became entitled to receive from the state a pro rata appropriation for the support of aged persons in indigent circumstances in the city and county almshouse.
    Application for a writ of mandate to compel the respondent to draw a warrant in favor of the petitioner, for the support of certain aged persons in indigent circumstances in the city and county almshouse, a public institution conducted by it for the support of such persons. The further facts are stated in the opinion of the court.
    
      
      John L. Love, for Petitioner.
    
      Langhorne & Miller, for Respondent.
   Myrick, J.

This is an application for a writ of mandate compelling the respondent to draw his warrant upon the state treasurer for an amount allowed by the board of examiners on petitioner’s behalf, for the support and maintenance of aged persons in indigent circumstances.

The first and second provisos of section 22, article 4, of the constitution, have reference to institutions of a private character as distinguished from public institutions; and after authorizing state aid to such institutions, the section proceeds to declare, in the third proviso, that whenever any county, city and county, city, or town shall provide for the support of aged persons in indigent circumstances (and others named), such county, city and county, city, or town shall be entitled to receive the same pro rata appropriation as may be granted to the institutions referred to in the first and second provisos. By the act of March 15, 1883 (Stats. 1883, p. 380), the legislature granted aid to the institutions referred to in the first and second provisos, and appropriated $100 per annum to each person supported and maintained in such institutions. Such appropriation having been made, the third proviso became self-executing as to counties, cities and counties, cities, and towns; and no further legislative action was required. This proviso is a portion of the section which declares that no money shall be drawn from the treasury but in consequence of appropriations made by law, and qualifies that declaration; it acts of itself as an appropriation upon the other appropriation being made. The evident intent of the constitution is to vest in the legislature the discretion to grant state aid to institutions for support of orphans and indigent aged persons; and upon the exercise of that discretion to appropriate to the aid of counties, cities and counties, cities, and towns, for similar purposes, pro rata amounts. The demurrer of petitioner to the answer of respondent is sustained. In pursuance of the stipulation of the parties, dependent upon the ruling on demurrer, it is ordered that the writ issue as prayed for.

Ross, J., Sharpstein, J., and Thornton, J., concurred.  