Pipes v. Hilderbrand

[646]

MUSSELL, J.

Petitioners (general contractors) seek a writ of mandate to compel respondent A. L. Hilderbrand, as Commissioner of Finance of the City of Fresno, to forthwith draw his purchase order and warrant for the first installment payment on a contract for the erection of two prefabricated all metal aircraft hangar buildings at the Fresno Air Terminal for the city of Fresno. The contract, in writing, was executed by petitioners and the city on the 27th of March, 1952, and except as herein noted, the regularity and legality of the proceedings prior to its execution are not questioned. On April 1, 1952, the city and North American Aviation, Incorporated, entered into an agreement in writing wherein the city leased a portion of its airport and the two hangars to be erected thereon by petitioners to North American Aviation, Incorporated, for a term of 40 months from the completion of the buildings, with an option to extend the lease by annual extensions for six additional years. The lessee agreed to pay in advance a rental of $80,000 for the first 40 months of the lease and $20,000 each year thereafter. The lessee was given the right to use the demised premises for the purposes of manufacturing, modifying, modernizing and assembling aircraft or aircraft component parts and for any other lawful purposes consistent with lessee’s business operations, including the construction of a paved ramp area of approximately 7,000 square feet. It was further agreed that the lessee, in its use of the premises should conform to and abide by the rules and regulations of the Civil Aeronautics Administration and of the Fresno Air Terminal. The lessee also agreed to restore the premises at the end of the lease to their condition at the time of the commencement of the lease, with certain named exceptions. The contract with petitioner, and the lease to North American Aviation, Incorporated, were approved by the city on March 27, 1952, and the Commissioner of Public Works was authorized to execute the lease for and in behalf of the city. Petitioner delivered structural steel at the air terminal on April 1, 1952, in accordance with the terms of the contract, and demanded payment of the first installment as therein promised. The city commissioners authorized the respondent commissioner of finance to draw a warrant for the payment of the installment due. He, however, questioned the authority of the city to construct and lease the buildings, and refused to issue a purchase order and his warrant on the city treasury for payment of the installment. These proceedings were then commenced.