Brougham v. City of Seattle, 26906.

• Decision Date: 01 March 1938
• Docket Number: 26906.
• Citation: 194 Wash. 1,76 P.2d 1013
• Parties: BROUGHAM v. CITY OF SEATTLE.
• Court: Washington Supreme Court

76 P.2d 1013

194 Wash. 1

BROUGHAM v. CITY OF SEATTLE.

No. 26906.

Supreme Court of Washington

March 1, 1938

Department 2.

Appeal from Superior Court, King County; Kazis Kay, Judge.

Action by H. W. Brougham, sole trader, doing business under the assumed business name and style of A-1 Towing Company against the City of Seattle to recover towing and storage on automobiles impounded for violation of provisions of ordinance. From a judgment dismissing the action, plaintiff appeals.

Affirmed.

Vanderveer & Bassett, of Seattle, for appellant.

A. C VanSoelen, Corp. Counsel, and C. V. Hoard, both of Seattle for respondent.

BLAKE, Justice.

Article IX (sections 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 section 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 section 81, the vehicle is not redeemed, ' the chief of police shall proceed to sell the same at public auction .' The section contains directions for notice of sale, and directs: ' If he [chief of police] sells 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 section 78, the chief of police designated plaintiff's garage as a vehicle pound. In compliance with section 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 section 84. The plaintiff filed no claims as required by section 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 and storage charges as required by section 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...