54 Cal. 486 | Cal. | 1880
The sixth section of the Act of April 1st, 1872, (Statutes 1871-2, p. 804) provides: “Hotic'e of such award (of a contract) shall be published for three days.; and within five days after the first publication of the award, the owners of a majority of the frontage of lots and lands liable to be assessed for said work * * * may elect to do said work, and enter into a written contract to do the whole work at the price for which the same is awarded,” etc.
In the case before us the first publication of the award was made July 6th, 1876. On the 10th day of July, (less than five days after the first publication) the plaintiff and the Superintendent of Streets entered into the contract which is the basis of the present proceeding.
The Superintendent had no power to enter into the contract until after the expiration of the five days. (Hewes v. Reis, 40 Cal. 255; 45 Id. 279; 36 Id. 512; 30 Id. 536; 31 Id. 481; 34 Id. 281; 40 Id. 497; 50 Id. 210.)
The premature action of the Superintendent was one which affected his power or jurisdiction. His action was void; and that which was void does not become valid by reason of a failure to appeal. The property owners were not aggrieved; and the failure of the contractor to appeal did not operate, 1st, to create a grievance on the part of the defendants; and 2nd, to estop them from complaining of it.
Hor was the evidence showing that the five days after the first publication of the award had not expired when the contract between the Superintendent of Streets and the plaintiff was entered into, an affirmative defense. It is not necessary, therefore, to decide whether the Legislature can deprive a defendant of any other defenses than those specifically mentioned in the statute.
To give all the effect claimed for the act of the Legislature by the appellant, the plaintiff need not allege the matters which alone give him a cause of action, and he need not in fact prove. them ; while to meet the possibility that both of these obstacles might be overcome, the defendant is prohibited from alleging or proving anything but the three matters, the privilege of pleading which is accorded him by the statute.
Judgment affirmed.
Boss, J., and McKee, J., concurred.