Page:North Dakota Reports (vol. 48).pdf/426

 tended to prove that the instrument, at the time of its installation, was fit only for the same purpose which the testimony showed it to be fit for at the time of the trial.

Upon the record as a whole, I find no reason for disturbing the verdict or the judgment entered thereon. Hence I agree that the judgment appealed from should be affirmed.

, J., concurs.

MANDAN NEWS, a corporation, Appellant, v. H. L. HENKE, as President of the Board of City Commissioners, and W. H. SEITZ, as City Auditor of the City of Mandan, North Dakota, Respondents.

Mandamus—city officers may not be compelled to issue warrants on general fund, after having offered to issue warrants on special fund for same debt.

1. Plaintiff brought an action of mandamus to compel defendants to issue to it certain warrants drawn on the general funds of the city of Mandan, they having theretofore declined to issue such warrants, but offered to issue warrants drawn on the special street lighting fund, claiming that the proper one against which the warrants should be drawn.

The Court declined to issue the Writ of Mandamus and for reasons stated in the opinion, it is held, its refusal to do so was not error.

Refusal to grant mandamus against defendant held not error.

2. The Court did not err in granting judgment in favor of defendants.

Appeal from a judgment of the District Court of Morton county, Berry, J.

Judgment affirmed.

Charles L. Crum, and T. J. Krause, for appellants.