Pacific Inter-Club Yacht Ass'n v. Richards
| Decision Date | 26 May 1961 |
| Docket Number | INTER-CLUB |
| Citation | 192 Cal.App.2d 616,13 Cal.Rptr. 730 |
| Parties | PACIFICYACHT ASSOCIATION, a Corporation, Plaintiff and Appellant, v. T. H. RICHARDS, Jr., Bert W. Levit and William E. Warne, members of the Wildlife Conservation Board, Defendants and Respondents. Civ. 10098. |
| Court | California Court of Appeals Court of Appeals |
J. Warren Manuel, Oakland, for appellant.
Stanley Mosk, Atty. Gen., by Ralph W. Scott, Deputy Atty. Gen., for respondent.
This is an appeal from the summary judgment in a taxpayer's suit seeking to enjoin the respondent members of the Wildlife Conservation Board of the State of California from appropriating funds from the Wildlife Restoration Fund to pay part of the cost of a highway bridge.
The complaint alleges that the respondent members of the Wildlife Conservation Board, which is an agency of the State of California, were acting in excess of their authority and in an arbitrary and illegal manner by appropriating $125,000 from the Wildlife Restoration Fund to provide one-half of the cost of a highway bridge across Montezuma Slough in Solano County. It is further alleged that this appropriation was made pursuant to an agreement between the Department of Fish and Game of the State of California and Solano County whereby each party was to provide one-half of the cost of the bridge. It is also alleged that after completion the bridge was to be maintained by Solano County.
Respondents urge that the issue raised by appellant's action is now moot as the Montezuma Slough bridge has been completed and accepted, notice of completion has been recorded, and the ferry which formerly afforded transportation across Montezuma Slough is no longer operative. It is further asserted that the bridge is now open to public use and that a large sum of money due under the contract between the Department of Fish and Game and Solano County had been paid. In support of these factual representations respondents set forth as an appendix to their briefs the certificate of acceptance and a certification by the state controller showing that $104,503.94 had been paid by the state pursuant to the agreement mentioned.
While the court may take judicial notice of the fact that the bridge has been completed (McPheeters v. Board of Medical Examiners, 74 Cal.App.2d 46, 168 P.2d 65; Bettencourt v. State of California, 123 Cal.App.2d 60, 266 P.2d 201, 43 A.L.R.2d 545), we, nevertheless, prefer not to base our decision in this case on the ground that the issues involved are moot since other questions remain involving the validity of the contract in question and the payment of money made pursuant thereto.
It is well established that all contracts entered into by the state, or its agencies, must be authorized by statute (Miller & Lux v. Batz, 131 Cal. 402, 63 P. 680) and all such unauthorized agreements and contracts are null and void. Const. art. IV, § 32. Where the contract is void a right of action exists in the state to recover money paid to a contractor and a state is not estopped to deny the validity of such a contract even where it has received the benefit of full performance. Paterson v. Board of Trustees, 157 Cal.App.2d 811, 321 P.2d 825; 45 Cal.Jur.2d 436. The question of the validity or invalidity of the agreement in this case is essentially one of law.
Estate of Kelly, 178 Cal.App.2d 24, 28, 2 Cal.Rptr. 634, 637. And if the opponent's affidavits raise no genuine issue of material fact, but only create an issue of law, summary judgment is proper. Bank of America Nat. Trust & Sav. Ass'n v. Casady, 15 Cal.App.2d 163, 59 P.2d 444.
The affidavits in support of the motion for summary judgment show that a Grizzly Island Waterfowl Management Area was established by the Wildlife Conservation Board; that the purpose of this project is to perpetuate the waterfowl resources of the state through provisions for nesting and feeding grounds for migratory waterfowl; that other purposes include the reduction of waterfowl depredation on agriculture and the provision of shooting areas for the public; that a related program undertaken by the board is the angling access project, the purpose of which is to provide the general public with access from the Grizzly Island project to public waters for fishing; that the Montezuma Slough bridge is considered by the Wildlife Conservation Board to be a part of, and incidental to, the projects mentioned.
An affidavit executed by Robert D. Montgomery in support of the motion avers that access to the Grizzly Island area was by way of a ferry across Montezuma Slough prior to 1960; that in order to reach Grizzly Island many hunters had a twelve to fifteen hour wait for the ferry and the result was that usage of the area dropped and the full potential use of the area both for hunting and fishing had not been realized.
Exhibit E incorporated into the affidavit of Raymond J. Nesbit filed in support of the motion for summary judgment sets forth excerpts from minutes of the Wildlife Conservation Board on September 23, 1959. This exhibit recites the long history of traffic problems in the area, and also states that the cost to the Department of Fish and Game for expenses to ease the situation at that time amounted to $5,400 annually and that the loss of hunting fees at Grizzly Island was estimated to be $3,000 to $10,000 annually. The minutes also state that angler access to Grizzly Island was impaired at all seasons.
Excerpts from the minutes also show that substantial sums of money were unanimously allocated for the construction of the Montezuma Slough bridge by the board, and the affidavit of William A. Jones filed in support of the motion states that the proposed bridge (subsequently erected) 'is 926 feet, 8 inches in length and 26 feet in width; it affords two lanes of vehicular travel; * * *; its load capacity is such that twenty-ton trucks may pass over without danger; * * *.'
The appellants filed two affidavits...
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