Bilby

Plaintiff commenced proceedings in mandamus against defendant McKenzie, treasurer of the city of Fresno, to compel the payment of certain warrants issued for work performed upon the sewers of the city in the month of May, 1895. The claims represented by the warrants had been duly allowed and ordered paid by the board of trustees, and warrants therefor had been properly drawn upon the treasurer.

It was alleged that there was in the sewer fund of the city, and not otherwise appropriated, a sum largely in excess of the amount of the warrants.

Defendant McKenzie, in his return and answer, showed that the city of Fresno had entered into a contract with Alexander McBean, whereby McBean agreed to take care and dispose of the sewage of the city for a period of five years for the sum of four thousand nine hundred dollars per annum, payable quarterly. This contract had been performed by McBean, and the city had from year to year assessed and levied a tax for the sewer fund sufficient to pay McBean’s demands, and for the purpose of paying the same, and had in fact devoted the money to these payments until the year 1893. In that year, though McBean had fulfilled the terms of his contv ,ct,…