Manning v. Den

Harrison, J. — Action to foreclose the lien of a street assessment.

1. It is alleged in the complaint that on the fifteenth day of October, 1888, the city council of Los Angeles awarded to the-assignors of the plaintiff a contract for [613]doing the work upon which the assessment in question was afterwards issued; that the clerk posted a notice of said award “ on the seventeenth day of October, 1888, and for five days thereafter ”; that afterwards, on the twenty-second day of October, 1888, the street superintendent entered into a contract with the plaintiff's assignors to- do said work, and thereafter made the assessment upon which this action is brought.

Section 5 of the act of March 18, 1885, authorizing street improvements, provides that after the contract has been awarded, “ notice of such awards of contracts shall be posted for five days, in the same manner as hereinbefore provided for the publication of proposals for said work. The owners of the major part of the frontage of lots and lands upon the street whereon said work is to be done .... may, within ten days after the first posting of notice of said av/ard, elect to take said work, and enter into a written contract to do the whole work at the price at which the same has been awarded. Should the said owners fail to elect to take said work, and to enter into a written contract therefor within said ten days, . . . . it shall be the duty of the superintendent of streets to enter into a contract with the original bidder, to whom the contract was awarded, at the prices specified in his bid.”

The provisions of this section make it clear that the superintendent is not authorized to enter into a contract with the person to whom it has been awarded, until after the expiration of ten days from the first posting of the notice of award. During that period the owners of the land to be ássessed are allowed the privilege of electing to take the work, and enter into a written contract to do the same at the price at which it was awarded. The power of the superintendent to enter into a contract with the “ original bidder ” does not arise or come into existence except upon a failure of the owners to make their election within the statutory [614]period; and any contract entered into by him with the bidder before the time when, by the statute, he has the power to enter into such contract is without authority and void, and consequently cannot be the basis of a valid assessment. (Burke v. Turney, 54 Cal. 486.)