JOHN COWELL v. WM. H. MARTIN, O. F. GRAVES, W. J. PATTERSON, and JOHN BALLARD, 43 Cal. 605

By the Court, Crockett, J.: The plaintiff, being the owner in possession of a private wharf, which would be rendered useless and valueless by the erection of the proposed wharf or landing place by the defendants, in the navigable waters of the bay, is entitled to a perpetual injunction, unless the defendants have shown a lawful right, derived from competent authority, to proceed with the contemplated work. The only authority which they produce is a contract entered into by them with the Board of State Harbor Commissioners, whereby they were employed to construct the proposed wharf.

It is incumbent on the defendants to show affirmatively, not only that the Board had competent authority to order the work to be done, but that in awarding the contract for doing it they have substantially pursued the statute.

Section nine of the Act of April 24th, 1863° (Stats. 1863, p. 406), organizing the Board of State Harbor Commissioners, requires that, in inviting bids for work to be done in the erection of wharves, “ the advertisement for proposals shall contain an accurate description of the work to be done, with a full description of the materials to be used, and such other details as may be necessary to a correct understanding of the entire work to be performed.” In the advertisement under which this contract was let, the Commissioners did not pursue the statute in several important particulars.

It did not contain an accurate description of the work to be done, nor any description of the materials to be used, nor did the contract conform to the advertisement. On the contrary, a portion of the wharf, for which proposals were invited, was to be sixty-eight feet wide, whereas in the contract this portion was to be only forty feet wide. These departures from the requirements' of the statute are fatal to the contract. The Commissioners derived their authority wholly from the statute, and the mode prescribed for performing their duties in letting contracts, is the measure of their power.

They acquired no jurisdiction to enter into a contract for the performance of this work until they had, substantially at least, complied with the statute in the mode of inviting proposals. The provision requiring the advertisement to contain an accurate description of the work to be done, and a full description of the materials to be used, was intended not only to promote competition in bidding, but also to prevent collusion and an abuse of their authority by the Commissioners.

It was intended to be not merely directory and to be disregarded by the Commissioners at their option, but is an imperative requirement, without a compliance with which they had no power or jurisdiction to let the contract, which was therefore void for want of authority to enter into it. It is well settled in this State and elsewhere, that when a statute prescribes the particular method in which a public officer, acting under a special authority, shall perform his duties, the mode is the measure of the power.

It is said, however, that this is a matter which does not concern the plaintiff, and that no person, except the parties to the contract or the State, can object to the contract on this ground. But this is a mistake. When one justifies what would otherwise be a trespass or a nuisance, under a license, permission, or power, derived from competent authority, it is incumbent on him to show affirmatively: first, that the authority was competent; second, that the license or power was duly granted. If he fails to show either, his defense fails.

The defendants having failed to show any valid authority for erecting the wharf, the injunction was improperly dissolved as to any portion of the proposed work, and should have been made perpetual as to the whole. Judgment and order dissolving the injunction reversed and cause remanded, with an order to the Court below to modify its judgment in accordance with this opinion.