Fairchild v. Wall

Foote, C. This action is to obtain a writ of mandamus to compel the defendant to enter into a contract for street-work with the plaintiff, to whom, it is claimed, a contract for street-work had been awarded by the city council of the city of Oakland, to which tribunal such authority is delegated by the charter of that city.

A demurrer was filed to the affidavit, upon which an alternative writ of mandate was issued, which reads thus: “Now comes J. S. Wall, superintendent, etc., defendant, and makes return to the alternative mandamus, and demurs to the affidavit upon which the same was issued herein, upon the grounds that the same does not state facts sufficient to constitute a cause of action, or to entitle the petitioner to the relief asked for, or to any relief.”

The demurrer was sustained, and the plaintiff declining to amend the affidavit, judgment of dismissal of the alternative writ of mandate, and that the order to show cause be discharged, and that the plaintiff take nothing, etc., and for costs, in favor of the defendant,"was duly given and made, from which this appeal is taken.

It appears from the affidavit of mandamus that the plaintiff claims to have been awarded a certain street contract by the Oakland City council, and that the superintendent of streets, whose duty it is to enter into such contracts by and on behalf of the city, refuses to do his duty in the premises.

It is also stated in the affidavit that the reason assigned by the superintendent why he will not do so is “ solely because he, in his official capacity as street superintendent, had already received from other persons, purporting to be the owners of three fourths or more of the frontage of lots and lands liable to be assessed for said [404]work, the said sum of $67.30, advanced by them to him for payment of said incidental expenses, and had already executed with said persons, as owners, a contract for said work, in which he had fixed the periods of time for beginning and completing the work, and had received from them a bond for said work, and therefore would not perform said acts a second time, except under mandate of a court.”

The part of the sections of the charter of the city of Oakland under which the authority on the part of the superintendent of streets exists to enter into a contract with owners of frontages of lots and lands upon a street where work is to be done, even after the city council has awarded a contract, such as is claimed by the plaintiff to have been awarded to him by that body, reads thus: —