[No. 26906. Department Two. March 1, 1938.]
H.W. BROUGHAM, Appellant, v. THE CITY OF SEATTLE,
Respondent. «1»
[1] MUNICIPAL CORPORATIONS - TORTS - GOVERNMENTAL POWERS
AND ACTS OF OFFICERS - POLICE - UNAUTHORIZED ACTS. Article
IX, SSSS 78 to 86, of the Seattle traffic ordinance (No. 64692),
setting up a comprehensive plan of impounding vehicles left
on the city streets in violation of the ordinance, is an exercise
of the police powers of the city, and the city could not be
rendered liable for the chief's torts in exercising his functions
thereunder, nor for his contracts except in the manner
provided by the ordinance.
[2] SAME. Article IX of the Seattle traffic ordinance, prescribing
the duties of the chief of police in impounding vehicles
left on the streets in violation of the ordinance,
circumscribes claims for compensation for towing or storage
to cars that shall have been "redeemed or sold" during
the preceding month, which is a condition precedent to
recovery of compensation.
Appeal from a judgment of the superior court for
King county, Kay, J., entered July 3, 1937, upon findings
in favor of the defendant, in an action on contract,
tried to the court. Affirmed.
Vanderveer & Bassett, for appellant.
A.C. Van Soelen and C.V. Hoard, for respondent.
«1» Reported in 76 P.2d 1013.
[1] See 19 R.C.L. 1119 (7 Perm. Supp. 4763).
2 BROUGHAM v. SEATTLE.
Opinion Per BLAKE, J. 194 Wash.
BLAKE, J. - Article IX (SSSS 78 to 86, inclusive) of the
traffic ordinance (No. 64692) of the city of Seattle
sets up a comprehensive plan of impounding vehicles
left on the streets in violation of the provisions of the
ordinance. By SS 78, the chief of police is authorized
to designate in writing, filed with the city comptroller,
"approved storage garages . . . as vehicle pounds
to which vehicles may be removed . . ." Section
79 provides that no garage shall be designated as a
vehicle pound until the owner shall have posted a
surety company bond in the sum of $2,500, conditioned
that he will faithfully perform his duties as bailee of
impounded vehicles, and that he will indemnify the
owners for injury to such vehicles. Section 81, among
other things, provides that, within forty-eight hours
after a vehicle is impounded, the chief of police shall
notify the owner in writing. It is further provided
that, if the owner be unknown, the chief of police shall
publish notice of the impounding in the official newspaper
of the city. Section 83 provides:
"Before the said owner or his agent shall be permitted
to remove a vehicle from such pound he shall:
"(a) Furnish satisfactory evidence to the Chief of
Police and the operator of the garage in which the
vehicle is impounded of his identity and ownership
or agency.
"(b) Pay to the Chief of Police, who shall issue a
receipt therefor, the sum of Two and 50/100 Dollars
($2.50) for towing or hauling, and storage charges not
exceeding Twenty-five cents ($.25) per day for each
day impounded.
"(c) Present the receipt of the Chief of Police to
the operator of said garage.
"(d) Sign a written receipt of said vehicle."
Section 84 provides that if, at the expiration of sixty
days after the mailing or publishing of notice, as required
by SS 81, the vehicle is not redeemed, "*the chief
of police shall proceed to sell the same at public
BROUGHAM v. SEATTLE. 3
Mar. 1938 Opinion Per BLAKE, J.
auction*." The section contains directions for notice of
sale, and directs: "*If he* [chief of police] *sell such
vehicle at such sale he shall pay the proceeds thereof
into the city treasury*."
Section 85 provides that not only the proceeds from
the sale of impounded vehicles be paid into the city
treasury by the chief of police, but also all moneys
paid to him for the *release* of impounded vehicles.
Section 86 provides:
"The owner or operator of any garage authorized
to receive and keep impounded vehicles shall on or
before the 10th day of each month file his claim with
the City Council for towing and impounding charges,
not exceeding those herein fixed, accruing to him upon
vehicles *redeemed or sold, as herein provided, during
the preceding month* in accordance with the provisions
of this code, which claim shall be sworn to by him
under oath as being accurate and justly due, and shall
be personally approved in writing on the face thereof
by the Chief of Police."
Pursuant to SS 78, the chief of police designated
plaintiff's garage as a vehicle pound. In compliance
with SS 79, plaintiff filed a bond, and on August 15,
1934, entered into a contract with the chief of police,
which contained the following provision:
"Storage and towing charges will be collected and
disbursed in accordance with the provisions of article
IX of Ordinance No. 64692."
This provision was honored more in the breach than
in the observance. For no storage or towing charges
were collected or disbursed as provided in the ordinance.
The chief of police held no sales as directed
by SS 84. The plaintiff filed no claims as required by
SS 86. The reason for this is that the chief of police and
the plaintiff adopted a plan in regard to the redemption
of cars that was a flagrant violation of the terms
of the ordinance. Instead of collecting the towing
4 BROUGHAM v. SEATTLE.
Opinion Per BLAKE, J. 194 Wash.
and storage charges as required by SS 83, the chief of
police would give the owner of the car an order directed
to the plaintiff as follows: "This is your authority
to release this car. All charges to be collected from
the owner." Upon being presented with this order,
plaintiff would release the car at a charge agreed upon
by him and the owner. Sometimes it was the maximum
charge permitted by the ordinance, but often less.
The arrangement was a lucrative one for plaintiff,
and all went well until the late spring or early summer
of 1936. By that time, plaintiff had in possession thirty
six unredeemed cars which had been impounded for
more than sixty days. Towing and storage charges on
these cars at the maximum rates allowed by the ordinance
ranged from $17.50 to $152.50. The chief of
police advertised these cars for sale in July, 1936,
reserving the right "to reject any and all bids if deemed
inadequate." The sale was held, and the chief of
police rejected every bid which was insufficient to pay
towing and storage charges against the car. The result
was that only two cars were sold.
The unsold cars were turned over to plaintiff, who
sold the lot-for $150. There is a sharp dispute as to
whether plaintiff accepted these cars in settlement of
his towing and storage charges against them. But,
in the view we take of the case, this is immaterial.
Again, in October, 1936, the chief advertised for
sale nine unredeemed cars which plaintiff had had in
custody for more than sixty days. Again he rejected
bids which were insufficient to cover towing and storage
charges, with the result that only one car was sold.
Plaintiff was offered the unsold cars in settlement of
towing and storage charges against them. This offer
he rejected.
Plaintiff filed claims for towing and storage charges
on these unsold cars. The claims were allowed only
BROUGHAM v. SEATTLE. 5
Mar. 1938 Opinion Per BLAKE, J.
to the extent of the charges against the three cars sold
at the two auctions.
Plaintiff then filed his complaint, setting up two
causes of action: The first for $1,451.75, balance claimed
to be due for towing and storage on the cars which
were not sold at the sale held in July; the second for
$494.75, on account of such charges against the cars
remaining unsold after the sale in October. The city,
answering, set up an oral contract, by which it was
alleged that plaintiff had agreed to take all unredeemed
and unsold cars in settlement of the charges against
them. Plaintiff replied, denying any such oral contract.
Evidence was offered by the city, and received without
objection, in support of the alleged oral contract.
Plaintiff, in testifying, denied it. The trial court
found that such an agreement was made by the plaintiff
and the chief of police, and accordingly entered
judgment dismissing the action. Plaintiff appeals.
Since the parties joined issue and tried the case upon
the question as to whether or not an oral contract was
entered into whereby appellant was to accept unredeemed
cars in settlement of the charges against them,
the judgment might possibly be sustained on the theory
indicated by the trial court's finding. For, in our
opinion, the finding is supported by a clear preponderance
of the evidence. We think, however, the judgment
may and should be sustained on broader grounds.
[1] Whether appellant's present action arises ex
contractu or ex delicto, it is grounded on the dereliction
of the chief of police in the performance of functions
imposed upon him by the ordinance, namely, his
failure, at the expiration of sixty days, to sell cars
which had not been redeemed. The consequence of
such a dereliction has never been more succinctly
6 BROUGHAM v. SEATTLE.
Opinion Per BLAKE, J. 194 Wash.
stated than in the case of Prather v. Lexington, 52 Ky.
559, 56 Am. Dec. 585:
"They [public officers] are personally liable for their
malfeasance or nonfeasance in office, but for neither
is the corporation responsible. Omissions of a duty
imposed upon them by law, productive of prejudice
to an individual, is not a corporate injury. The duty
of the officers of the city is prescribed by the statute,
from which also they derive their power. The corporation
appoints them to office, but does not in that act
sanction their official delinquencies, or render itself
liable for their official misconduct."
It is hardly open to question that article IX of the
ordinance is an exercise of the police power of the city.
Under no circumstance could the chief's tort in exercising
his functions under it render the city liable.
Simpson v. Whatcom, 33 Wash. 392, 74 Pac. 577, 99
Am. St. 951, 63 L.R.A. 815; Franklin v. Seattle, 112
Wash. 671, 192 Pac. 1015, 12 A.L.R. 247.
Nor could he by contract render the city liable,
except in the manner provided by the ordinance.
Dickerson v. Spokane, 35 Wash. 414, 77 Pac. 730; State
ex rel. Nat. Bank v. Tacoma, 97 Wash. 190, 166 Pac. 66;
State ex rel. Hubbard v. Seattle, 135 Wash. 505, 238
Pac. 1. In 2 McQuillin, Municipal Corporations (2d
ed.), SS 519, the rule is stated:
"Municipal officers are only agents of the local public
in its corporate capacity; they act under defined powers
and duties, limited and restricted by law, and, within
the scope of their functions, may bind the corporation
by their acts. However, iœ they exceed their authority,
the corporation is not liable.
"The principle is well established that a public or
governmental corporation like a municipal corporation
is not estopped by the acts of its officers when they
exceed their powers. The rule is that persons dealing
with such officers must, at their peril, ascertain the
scope of their authority."
STATE EX REL. BREMERTON Bridge CO. v. SUP. CT. 7
Mar. 1938 Syllabus.
[2] The ordinance not only prescribes the duties of
the chief of police with respect to unredeemed cars, but
circumscribes appellant's right to claim compensation
from the city for cars "*redeemed or sold, as herein
provided, during the preceding month*." Section 86,
supra. Under the express terms of the ordinance, it
is a condition precedent to appellant's right to claim
compensation from the city for towing or storing impounded
cars, that they shall have been "*redeemed
or sold*." Neither by nonfeasance nor misfeasance
could the chief of police extinguish that condition or
enlarge appellant's rights as against the city.
Judgment affirmed.
STEINERT, C.J., BEALS, MILLARD, and ROBINSON, JJ.,
concur.