Opinion
Department One
APPEAL from a judgment of the Superior Court of Alameda County. A. L. Frick, Judge.
COUNSEL:
Chickering, Thomas & Gregory, and C. Harding Tebbs, for Appellant.
R. M. F. Soto, for Respondent.
OPINION
THE COURT
Action upon a street assessment. Section 5 of the street improvement act (Stats. 1889, p. 162) provides that the owners of three-fourths of the frontage may elect to take the work and enter into a written contract therefor, at the price at which it was awarded, within ten days after the first posting and publication of the notice of award; and that, if they fail to elect to take the work and enter into a contract therefor within said ten days, the superintendent of streets shall enter into a contract with the original bidder to whom the contract was awarded. Until the expiration of the period within which the owners are allowed to enter into the contract the superintendent of streets has no power to enter into a contract with the bidder, and a contract entered into with him prior to that time is invalid, and cannot form the basis of an assessment. (Burke v. Turney , 54 Cal. 486; Manning v. Den , 90 Cal. 610; Perine v. Forbush , 97 Cal. 305; Perham v. Kuper , 61 Cal. 331.) The contract in the present case was awarded to the plaintiff April 6, 1891. The first posting and publication of the notice of this award was made April 9, 1891. The contract was entered into by the plaintiff with the superintendent of streets on April 20, 1891. The ninth day of April, 1891, fell on Thursday, and, as the 19th was Sunday, the owners had the whole of the 20th in which to enter into the contract. (Civ. Code, sec. 10; Diggins v. Hartshorne , 108 Cal. 154.) The contract between the plaintiff and the superintendent of streets was, therefore, entered into at a time when the superintendent had no power to make it, and under the authority of the foregoing cases must be held invalid.
The judgment is affirmed.