Fairchild

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…