Thoits

This is a proceeding in mandamus brought by petitioners, owners of certain lots in the city of Palo Alto, included, among others, within a project of street improvement, against the superintendent of streets of said city, to compel him to enter into a contract with the successful bidder for said work.

Other property owners intervened in the suit and joined with the respondent in resisting the demand of the petitioners that said respondent be compelled to enter into such contract.

Issues of fact being raised by the pleadings, the matter was by this court referred for the taking of testimony and the making of findings thereon. The referee has made his report and the same is hereby adopted.

The respondent and interveners raise various points which they urge as grounds for denying the relief sought, the first of which is, stated in the language of one of the interveners, that “the present mandamus proceedings cannot be used to test the validity of the proposed contract or the validity of the street work proceedings already had,” for the alleged reason that the respondent, as superintendent of streets, acts purely in a ministerial capacity in executing a contract with the successful…