Bartlett

The city of Berkeley is a municipal corporation organized under a freeholders’ charter. During all the period of time involved in this proceeding the appellant was the mayor and the respondent was the auditor of said city.

The council of said city on the fifteenth day of March, 1921, adopted an ordinance amending a former ordinance establishing a municipal market in said city. Said ordinance and the amendment thereto provide for the selection of a market manager. Section 4 of said amended ordinance reads as follows:

To supply the needs of the market established by said ordinances, the proper officers purchased from the Mercantile Box Co. 500 lug boxes at a price of $106.25.

The demurrer admits that the amount of the aforesaid claim is a fair and reasonable sum to be paid for said materials.

A claim for the same was regularly presented by said Mercantile Box Co., and the same was passed and authenticated as required by ordinance and then presented to said respondent as said auditor for allowance. That officer refused to allow the claim or in any manner to indorse the warrant.

This proceeding is instituted by said appellant in his official capacity as mayor of said city to…