A municipal corporation derives all its power from its charter, and where its charter prescribes the mode in which its contracts shall be made, no contract will bind the corporation unless made in that mode.

A contract made by individual members of the Common Council of the “ city of San Francisco ”—a municipal corporation—in a manner not authorized by its charter, and in disregard of the forms therein directed to be observed in the making of its contracts, is not the ground of any claim against the city.

Individual members of the Common Council of the city of San Francisco were not, by the charter of 1851, invested with any power to improve the city property, and any directions given or contracts made by them upon the subject had the same and no greater validity than like directions given and like contracts made by any other residents of the city assuming to act for the corporation.

A contract not in its origin obligatory upon the corporation, by reason of not having been made in the mode prescribed by the charter, cannot be affirmed and ratified in disregard of that mode by any "subsequent action of the corporate authorities, and a liability be thereby fastened upon the corporation.

Batification is equivalent to a previous- authority. It operates upon the contract in the same manner as though the authority to make the contract had existed originally.

The power to ratify necessarily supposes the power to make the contract in the first instance; and the power to ratify in a given mode, supposes the power to contract in the same way.

Thus, where the charter of a municipal corporation authorizes a contract for work to be given only to the lowest bidder, after notice of the contemplated work in the public journals, a contract made in any other way—that is, given to any other person than such lowest bidder—cannot be subsequently affirmed. The corporate authorities cannot do retroactively what they are prohibited from doing originally.

A municipal corporation, acting under a charter expressing the mode in which its contracts for the improvement of its property shall be made, cannot be rendered liable for improvements made in the absence of such contract, on the ground of an implied contract to pay for benefits received. The law never implies an agreement against its own restrictions and prohibitions; it never implies an obligation to do that which it forbids the party to agree to do.

Where work is performed by one, the benefit of which is received by another, in order that the doctrine of liability upon an implied contract may be applied, there must not only be no restrictions imposed by the law upon the party sought to be charged against making in direct terms a similar contract to that which is implied, but the party must also be in a situation where he is entirely free to elect whether he will or will not accept the work, and where such election will or may influence the conduct of the other party with reference to the work itself. The mere retention and use of the benefit resulting from the work, where no such power or freedom of election exists, or where the election cannot influence the conduct of the other party with reference to the work performed, does not constitute such evidence of acceptance that the law will imply therefrom a promise of payment.

The cases of The San Francisco Gas Co. v. The City of San Francisco, (9 Cal. 453) and Argenti v. The City of San Francisco, (16 Id. 255) commented upon, and shown not to be authority upon any question arising in the case at bar.