This is an original proceeding, /i wherein the petitioner asks this court to issue a writ of mandamus directed to the defendants, as members of the state board of examiners, commanding them to allow his claim against the state for the sum of ten thousand dollars, in accordance with the provisions of an act of the legislature, the first section of which, and the only one necessary to a proper understanding of this case, is as follows: —
“ Sec. 1. The sum of ten thousand ($10,000) dollars is hereby appropriated out of any moneys in the general fund of the state treasury not otherwise appropriated, to pay the claim of A. J. Bourn, a guard at the state prison at San Quentin, in this state, for personal injuries, namely, the loss of his right arm while in the discharge of his duties, under the orders of his superior officer, and while in the service of the state of California.”
The petition sets forth the circumstances under which petitioner lost his arm, but which need not be referred to here, as we have held, in the case of Stevenson v. Caigan, 91 Cal. 649, that the constitutionality of a statute must be determined by the court from what appears on its face, when considered with reference to matters judi- ' cially noticed by the court.
The defendants have demurred to the petition, upon the general ground that the act under which petitioner claims is unconstitutional under sections 31 and 32 of article IV. of the constitution, which in effect provide, among other things, that the legislature shall have no power to make any gift of any public money or thing of value to any individual, or to grant any extra compensation or allowance to any public officer or servant of the state, “ after service has been performed, or a contract has been entered into and performed in whole or in part.”
In the case of Stevenson v. Colgan, 91 Cal. 649, we decided that it was the purpose of these sections of 'the constitution to prohibit the legislature from making direct “ appropriations to individuals from general considerations of charity or gratitude, or because of some supposed moral obligation resting upon the people of the *327state, and such as a just and generous man, although under no legal liability so to do, might be willing to recognize in his dealings with others ” less fortunate than himself.
That such is the intention of the constitution we have no doubt, and it is equally clear to us that the act in question falls within the class of legislation thus prohibited. The petitioner was an officer or employee of the state. It is recited in the act that he met with the accident “ while in the discharge of his duties under the orders of his superior officer,” and, for the purpose of this decision, it may be conceded, as claimed by him, that the loss of his arm is to be attributed to the negligence of his superior officer. But whether it be attributed to negligence or misfeasance of such officer, or any other cause which can be suggested by the language of the act, the unconstitutionality of the statute is apparent. In entering the service of the state, the petitioner assumed all the risks attending such employment, whether arising from its ordinary perils or resulting from the negligence or misfeasance of other servants of the state, and the appropriation made by this act is a mere gratuity, as the state was under no legal liability to compensate him for any loss which he may have sustained while thus in the discharge of his duties.
That a state is not liable for the negligence or misfeasance of its agents, except when such liability is voluntarily assumed by its legislature, is said by Danforth, J., in Lewis v. State, 96 N. Y. 74, 48 Am. Rep. 607, to be so “well settled upon grounds of public policy, and the doctrine is so uniformly asserted by writers of approved authority and the courts, that fresh discussion would be superfluous.” And the supreme court of the United States, in Gibbons v. United States, 8 Wall. 269, in an opinion delivered by Mr. Justice Miller, say: “ No government has ever held itself liable to individuals for the misfeasance, laches, or unauthorized power of its officers and agents.”
In the case of Clodfelter v. State, 86 N. C. 51, 41 Am. Rep. 440, the plaintiff presented a claim against the state for damages on account of the loss of his eyes, alleged *328to have been caused by the misconduct and negligence of officers and agents of the state, under whose authority and control he was placed. By the constitution of that state the court was empowered with authority “ to hear claims against the state.” But the court held that this provision only authorized it to hear such claims “ as are legal and could be enforced if the state, like one of its citizens, was amenable to process,” and added: “ The only question then presented is, whether the state, in administering the functions of government through its appointed agents and officers, is legally liable to a claim in compensatory damages for an injury resulting from their misconduct or negligence. That the doctrine of respondeat superior applicable to the relations of principal and agent created between other persons does not prevail against the sovereign in the necessary employment of public agents is too well settled upon authority and practice to admit of controversy.”
The exemption of the state from paying damages for accidents of this nature does not depend upon its immunity from being sued without its consent, but rests upon grounds of public policy which deny its liability for such damages. It is argued, however, that the state has in this instance assumed and acknowledged its liability by the act under consideration. But this is precisely what the legislature is forbidden to do. A legislative appropriation made to an individual in payment of a claim for damages on account of personal injuries sustained by him while in its service, and for which the state is not responsible, either upon general principles of law or by reason of some previous statute creating such liability, is a gift within the meaning of the constitution. The appropriation made to petitioner was a mere gratuitous assumption of an obligation from which the state was and is exempt, and is within the mischief which the framers of the constitution intended to remedy by the sections before referred to.
If the state desires to make itself liable for such damages as may be sustained by those in. its service, it must *329do so by a general law which shall embrace all cases which may come within its provisions.
The demurrer to the petition is sustained, and judgment ordered for the defendants,
Sharpstein, J., Paterson, J., McFarland, J., and Harrison, J., concurred.