Action to recover for street work done in the city of Oakland. Article vii of the complaint avers (and the plaintiff is concluded *332by the averment), that the city council passed a resolution ordering the work on the 3rd day of March, 1874, and published an invitation for sealed proposals for five days in the “ Oakland Daily News,” beginning on the 4th day of March, 1874. The 4th day of March, 1874, was Wednesday, and the fifth day for publication of the resolution was Monday. On the 9th day of March the award was made to the plaintiff’s assignor.

Section 5 of the Act of April 4th, 1864 (see Stats. 1863-64, p. 333), requires that a notice inviting sealed proposals shall be published for five days in a daily paper to be designated by the council. And by subdivision 6 of § 24 of the same act, it is provided that “ the publication of notices required by the provisions of the act shall be published daily (Sundays excepted) in a newspaper to be designated by the city council of said city.”

Excluding Sunday from the five days required for the publication, the last publication should have been made on Monday, the 9th day of March. It does not appear that any publication was made on that day, and if it was, the award on the 9th was premature. (The People of the City etc. v. McCain, 50 Cal. 210; Same v. McCain, 51 id. 360; Pol. Code, § 3259.)

Judgment reversed.