Harris

delivered the opinion of the Court.

This is an appeal from the judgment of the Court below, awarding a peremptory mandamus against Harris, the *10 Mayor of the City of San Francisco, compelling him to sign a warrant, drawn in favor of the relator, upon the treasury of San Francisco.

The record shows that, about the month of Juñe, 1851, the City of San Francisco, by its Common Council, and the County of San Francisco, by its Board of Supervisors, purchased, in common, a building for city and county purposes, and are now in possession of the same; that afterward the city and county entered into a contract with the relator, to alter and fit up said building for such purposes; that the terms of the contract were fixed by ordinance, and have been complied with by the contractor, and that a certain sum is due to him, for which the Comptroller has drawn his warrant upon the treasury, which warrant the Mayor refuses to countersign, on the ground that the purchase of said building was illegal, and, consequently, any attempt upon the part of the city to occupy or expend money in fitting it up, must be equally illegal.

We do not think that this conclusion necessarily follows. The…

I concur with Judge Murray. I am satisfied that the question of the purchase of the property is not one we can consider. If the illegality of the purchase is admitted, the result would be, that the property does not belong to the city. The question then is, has she the right to alter and improve, for municipal purposes, a building which she does not own. The power seems to be clear, both express and implied. She is in possession, not as a tort feasor, but by color of title, and even if the title be void, no reason exists why the building should not be fitted for her use and occupation. To do this, she had power to contract for work and labor, and having so contracted, I see no reason why she should not pay. I do not pretend here to say that the purchase of the property was good or bad, because I am not called on, in this case, to decide it. I only assume the hypothesis, that the purchase is void, to show that, even then, the city must pay for labor which she had contracted to be performed.