Raisch

This is an appeal from a judgment awarding the respondent a writ of mandate, and the case comes here on the judgment roll.

The facts stated in the complaint are in substance as follows: The respondent and appellant, under and by virtue and authority of a statute of this state, entered into a written contract, by which respondent agreed t@ furnish appellant, during the fiscal year 1884-85, rubber hose of a certain description and quality, and appellant agreed to pay, or cause to be paid, to respondent therefor a sum of money equal to thirty-five cents for each and every lineal foot of hose so furnished, delivered, and accepted. In pursuance of this contract, respondent furnished to appellant, during the year named, one thousand feet of hose at one time, and five hundred feet at another time, which was all of the kind and qual *544 ity named in the contract, and was received and accepted by appellant. In due time respondent presented his claim, and demanded that appellant draw drafts in his favor upon the school fund of the city and county of San Francisco for the amounts due him for the hose, according to the contract price, but appellant refused, and has ever since refused, to…

I dissent. The contract set up in substance in the opinion was one made by competent authority on the part of a municipal corporation, for the purchase of certain goods which it has received under the contract, and now refuses to pay for. The refusal is a simple breach of contract, for which the party has an ample remedy by action. I see no reason why a municipal corporation should be treated differently from a natural person in such a case.

I dissent. The applicant for the writ in this case has never presented his claim to the board of education for their examination and allowance, and consequently he is not in a positon to ask a mandate from a court to command the board of education to draw a draft in his favor for any sum payable out of the school fund of the city and county of San Francisco.

Section 82 of the Consolidation Act provides that no payment can be made from the treasury or out of the public funds of said city and county, unless the same be specifically authorized by this act, nor unless the demand which is paid be duly audited, as in this act provided, and that must appear on the face of it.

*548 Section 83 of the same act provides that “the term ‘audited/ as used in the act with reference to demands upon the treasury, is to be understood their having been presented to and passed upon by every officer and board of officers, and finally allowed by law; and this must appear upon the face of the paper representing the demand, or else it is not audited.”

Section 84 of the same act is as follows:—

Section 85 of the act contains the following provision as to demands payable out of the school fund: “All…