This is an application for a writ of mandate against the respondent Leonard S. Leavy, as Controller of the City and County of San Francisco, to compel him to draw his warrant in favor of the petitioner in the sum of $3,375. The action presents no question of fact but solely a question of law. On the 25th day of March, 1935, MacDonald & Kahn Co., Ltd., was awarded a contract to construct the Marina Junior High School. The contract covered every item, including the furnishing of mill work and installing the same. It also provided that on the 10th day of each month during the performance of the contract a sum equal to 75 per cent of the contract price for materials and work done during the preceding calendar month should be paid in accordance with an estimate to be made by the architect. On May 2, 1935, MacDonald & Kahn Co., Ltd., entered into a contract with the petitioner under which the petitioner was required to furnish the mill work so required by the general contract to be furnished and installed by MacDonald & Kahn Co., Ltd. Petitioner’s contract contained nothing to the contrary and the monthly claims for compensation were presented by MacDonald & Kahn Co., Ltd., and it disbursed to its subcontractors their proportion of each monthly claim. The claim so presented for the month of December included among other items $3,375 for *642 mill work furnished by petitioner to MacDonald & Kahn Co., Ltd., and by the latter installed in the building. The fiscal officers of the city and county of San Francisco allowed and ordered paid the entire claim presented by MacDonald & Kahn Co., Ltd., except the said sum of $3,375, the amount representing the claim of this petitioner. It is admitted that the funds were available and in the treasury, but nevertheless the respondent refused to draw his warrant. The petitioner alleges and the respondent admits that the latter’s refusal was based on the contention of the latter that this- petitioner did not comply with the provisions of section 98 of the Freeholders’ Charter as the same was worded on May 17, 1935, and that petitioner did not comply with Ordinance No. 9.0923.

The contract awarded to MacDonald & Kahn Co., Ltd., by reference adopted the plans and specifications, and in particular specifications as to the mill work to be installed in the building. However, no claim is made that any of the mill work furnished by the petitioner was not in compliance with the plans and specifications. Except to deliver the mill work prepared by it, the petitioner, under the terms of its contract, was not called upon to do or perform any work whatever at the site of the Marina Junior High School building.

The petitioner claims that it has done and performed all things by it to be done and performed. The respondent asserts that such is not the fact because the petitioner did not comply with the provisions of section 98 of the charter, as that section was worded on May 17, 1935, and that petitioner has not complied with the provisions of said Ordinance No. 9.0923. To those statements the petitioner replies that its contract did not come within the provisions of section 98 nor of said ordinance. That reply we think is well founded. As the ordinance mentioned was enacted to carry into effect the provisions of section 98 of the charter, and if the petitioner’s contract did not come within the provisions of that section, it will not be necessary to further discuss the provisions of the ordinance.

Section 98 of the charter in part provides as follows: “Every contract for any public work or improvement, exclusive of purchases, to be performed at the expense of the *643 city and county, or paid out of moneys deposited in the treasury, whether such work is to be done directly under contract awarded, or indirectly by or under sub-contract, sub-partnership, day labor, station work, piece work, or any other arrangement whatsoever, must provide: ...” etc. As to whether the petitioner’s contract was “for public work” or was one of “purchase”, is not an open question in this state. Facts closely akin were passed on in the case of Neal Publishing Co. v. Rolph, 169 Cal. 190 ] 146 Pac. 659, 660 ], In deciding the case the court quoted with approval as follows from the opinion of the late Judge J. M. Seawell, who was the trial judge:

The respondent cites United Iron Works v. Standard B. & C. Co., 69 Cal. App. 384 [ 231 Pac. 567 ], Golden Eagle Milling Co. v. Old Homestead Bakery, 59 Cal. App. 541 [ 211 Pac. 56 ], Bancroft v. San Francisco Tool Co., 120 Cal. 228 [ 52 Pac. 496 ], and Spencer v. Cone, 42 Mass. (1 Metc.) 283. No one of those cases involved public work and therefore no one of them is helpful.

Flynn v. Dougherty, 91 Cal. 669 [ 27 Pac. 1080 , 14 L. R. A. 230], is a case involving a contract on a public building; however, it contains nothing helpful on the question before us. The first sentence reads as follows: “The only question involved in this appeal is, whether the eon- *645 tract of the plaintiff, ‘to cut, furnish, and deliver’ to defendant ‘the stone-work of the asylum to be built at Agnew Station, according to the plans and specifications of Mr. Jacob Leuzen and Son, architects’, is within the statute of frauds. (Civ. Code, sec. 1739.) ”

The respondent stresses the fact that to the contract was attached detailed specifications and plans and furthermore it called for “mill work” and he earnestly contends that such facts demonstrate that the transaction was not a purchase and that it was a contract for “work and labor”. But the question before us is not whether the contract called for work and labor, but whether it was a “contract for public work”. Moreover, the argument is not new. An examination of the record in Neal Publishing Co. v. Rolph, supra, discloses that the same argument was vigorously presented. The hearing of the appeal first arose in the District Court of Appeal. In deciding the case that court adopted said argument and placed its decision largely on that reasoning. (Neal Publishing Co. v. Rolph , [Cal. App].) The Supreme Court ordered a transfer and in writing its opinion it pointed out that said argument is not helpful in ruling this line of cases.

We think it is quite clear, and therefore hold, that the petitioner’s contract was not subject to the provisions of section 98 of the charter hereinabove set forth.

It is therefore ordered that a peremptory writ of mandate issue as prayed.

Nourse, P. J., and Spence, J., concurred.

A petition by respondent to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on August 17, 1936.