Burke

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…