I dissent from the order denying a rehearing of this case because, in my opinion, the decision rests necessarily upon a doctrine destructive of essential safeguards of important public rights. The essence of the decision is that a contract, void for want of compliance with the conditions and limitations upon and under which alone boards of supervisors have power to bind their counties, acquires all the force and obligation of a valid contract if the contractor commences work and expends money in pursuance of its terms before he is notified that the county repudiates it. This doctrine sweeps away at once all limitations upon the power of the board, for it can readily be seen that the contractor must always have it in his power to commence work just as soon as he has induced the board to enter into a contract in defiance of the regulations intended to govern their action; and it is also apparent that the board which desires to make contracts in disregard of the law will have the same motive to allow the commencement of work that they have to enter into the illegal contract.
And how can the equitable doctrine of estoppel apply in such a case against the public? The facts are all known to the contractor. There has been no misrepresentation, no concealment. He knows what the contract is and how it has been obtained. If it is illegal and void he knows it, and if he goes to work under *Page 226 it he does so with his eyes open. In such case there can be no estoppel.
The expression quoted in the Department opinion from Argenti v.San Francisco, 16 Cal. 266, was never the law even of that case. It was but the opinion of a single judge, not concurred in by his associates and expressly repudiated by him in the later case ofZottman v. San Francisco, 20 Cal. 109, 81 Am. Dec. 96, where he lays down the doctrine which this case sets aside. It is true that some decisions have been made in other jurisdictions which sustain the present ruling here, but it is certainly opposed to the views which have heretofore prevailed in this court, and to the weight of authority elsewhere.
The judgment of the superior court should have been affirmed.