The record-union. [volume] (Sacramento, Calif.) 1891-1903, 1899-12-20

with said new railroad bridge an over
head or separate roadway to be main
tanned by the California Pacific Rail-
road Company for free public highway
purposes, and to be Independent of
either tracks or trains The company
further agreed, in consideration of the
aid extended in the form of this $780,
600, to prosecute the work with dill
gence and finish the construction be-
fore December 81, 1895 1t was also
stipulated that if the work was not
completed by the aforesaid time the
company was to receive nothing from
Sacramento County, and also refund
the payment already made.
AT this stage of the proceedings the
District Attorney of plaintiff advised
the Board of Supervisors that 1t had
the power to enter into such a con-
tract with defendants, and further ad-
vlsed the board.tha the respective ac-
tons taken at that time by the county
and the railroad company, in the form
OF written offers by the company and
resolutions passed by the board,
amounted in law to legal. valid con-
tract between the parties Thereafter
to the company, and the work of con-
struction began.
In October. 1895, the county of Sac
ramento, upon the claim that it had
never entered into a valid. binding con-
tract with defendants to pay the afore-
said $4,000, brought this action to re-
cover the sum of $4,000 already paid.
with 20 per cent. additional as dam
ages in the form of a penalty. the
basis of this claim being that the
money was paid without authority IF
raw and could be recovered back at the
suit of the District Attorney of the
county. The contract is claimed to
be void by reason of the fact that it
was entered into contrary to the stat
utes. which call for plans and specif-
cations, notices, bidding. ETC., as condi-
tons precedent to the building of a
bridge by the county The bridge was
completed in December. 1895.
Among other defenses relied unon
an estoppel is set out, and upon this
question of estoppel the court made the
following finding of fact: ut is true
that said overhead roadway upon said
new bridge was fully constructed and
opened to the public on the 10Th dav of
December, 1895; and that ever since
that time the same has been used by
the inhabitants of Sacramento and
folo Counties for travel to and fro be-
tween said counties, with immunity
from contact with their trains or
tracks; and that said public has had
the exclusive use of said overhead
roadway without toll or charge. and
that no railroad track has been laid
thereon. And that said overhead road
way has been constructed and main
tanned in a good and substantial man
.ner''
This is, in substance. an action to
recover money had and received and
this character of action is based upon
the principle that one party has money
which in equity and good conscience
belongs to another
In the face of the finding of fact
quoted we are at loss to see how this
money in equity and good conscience
belongs to Sacramento County. If the
plaintiff had lived up to it's contract to
the letter, and paid the entire sum of
S3u,OOo to defendants. and if at some
future time defendants had closed this
overhead roadway, We can readily i'm
agine that the county of Sacramento
would have at once asked and obtained
relief from the courts, any question of
ultra wires contract, or defective con-
tract, to the contrary. Certainly the
county would be entitled to relief. foc
defendants would not be in position