City of Seattle v. Dutton, 20620.

• Citation: 147 Wash. 224,265 P. 729
• Decision Date: 27 March 1928
• Docket Number: 20620.
• Parties: CITY OF SEATTLE ex rel. DUNBAR, Atty. Gen., v. DUTTON et al.
• Court: Washington Supreme Court

265 P. 729

147 Wash. 224

CITY OF SEATTLE ex rel. DUNBAR, Atty. Gen., v. DUTTON et al.

No. 20620.

Supreme Court of Washington, En Banc.

March 27, 1928

Appeal from Superior Court, King County; Truax, Judge.

Action by the City of Seattle, on the relation of John H. Dunbar Attorney General, against O. J. C. Dutton and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded, with instructions.

Main Mitchell, and Tolman, JJ., dissenting.

John F Dore, O. G. C. Beals, and F. C. Reagan, all of Seattle, for appellants.

John H Dunbar and E. W. Anderson, both of Olympia, for respondent.

FULLERTON J.

In September, 1924, one Joseph Falsetto, then an employee of the department of parks of the city of Seattle, was engaged in sawing off the dead limbs of a tree growing in one of the city's public parks, and was killed by falling from the tree. His widow in due time presented a claim for damages to the city council of the city, which that body rejected. She then presented a like claim to the board of park commissioners, and that body compromised, and settled it with her by paying to her $750 out of the funds of the department of parks. The present action was instituted by the Attorney General of the state, on behalf of the city of Seattle, to recover from the then members of the board of park commissioners and their bondsmen the amount so paid. A recovery was allowed in the court below, and the commissioners and the bondsmen appeal.

The case is before us as to its facts on the findings made by the trial court. These are somewhat meager. They show nothing more of the nature and cause of the accident than we have above outlined. No facts are found from which it can be determined whether the death was the result of negligence on the part of the city or some of its officers or whether it was the result of the carelessness and negligence of the person killed. They are sufficient, however, to support the judgment on the grounds upon which the trial court rested it, if these grounds be legally sound. The trial court rested the judgment on the ground that there could be no recovery against the city or the department of parks no matter what may have been the cause of the accident. In other words, it held that the city was not liable, because in the maintenance of its parks it exercised a governmental, rather than a proprietary or ministerial, function, and that the department of parks is not liable, because it is an integral part of the city government and partakes of the city's immunity.

If the premise here assumed is sound, the conclusion drawn therefrom would seem to follow as of course. But we cannot think the premise applicable to all situations. The department of parks of the city of Seattle is a creation of the city charter. While it is made by the charter a separate department of the city government, and while all of its powers are vested in a board of park commissioners, it is not an entity separate and apart from the city, such as it would be were it created as a distinct municipal corporation. Ferry v. Seattle, 116 Wash. 648, 200 P. 336, 203 P. 40. Nor is it a distinct entity merely because its powers are vested in a body other than the regular city council. It is within the power of the people of a municipality to vest the exercise of the powers of the municipality in as many governing bodies as they see fit. It may vest all of such powers in a single body called a council, or it may vest a part of such powers in such a body and a part in others called by different names. But the power is the same in whomsoever it is vested. Each body within its own sphere acts as a part of the city government, not as a distinct entity separate and apart from that government. And it must follow, we think, that, if any of such bodies commits acts of negligence within the scope of its authority, which would render the city liable if committed by the more commonly recognized governing body, the city is liable.

It may help to elucidate the proposition if we notice with more minuteness the powers conferred on the board of park commissioners. The third section of the charter provision reads as follows:

'The management and control of all the public squares and parks of the city and of all park drives, parkways, boulevards, play or recreation grounds of the city, are hereby vested in the board of park commissioners. It shall have power to designate lands and grounds to be used and appropriated for such purposes; to cause the same to be platted and surveyed and the plats thereof filed in the office of the board of public works, or in the office of the city engineer; to device, adopt and lay out parks, squares, park drives, parkways and boulevards, play and recreation grounds in and adjacent to the city, and from time to time extend the same and add thereto; to grade, improve, ornament and maintain the same; to erect and maintain buildings, monuments and structures therein, and shall have power of censorship over any statuary, monuents or works of art that may be presented to the city, and shall in the name of the city accept all devices and bequests; to provide for securing, growing and maintaining trees; plants, flowers, zoological collections and other attractions therein; to grant concessions and privileges therein under such restrictions and for such compensation as it shall prescribe, the revenue of which shall go into the city park fund: Provided, that no such concession or privilege shall ever be granted for the sale of any intoxicating liquors in any public park, square, play or recreation ground, park drive, parkway or boulevard of the city. It may exclude from any or all the parks, squares, park drives, parkways and such boulevards as are principally used for pleasure driving, any vehicle or classes or traffic which in its judgment may be improper for or detrimental to the same, or injurious to the improvements therein; it may appoint or cause to be appointed policemen for the special enforcement therein of the park regulations of the city, to be known as park police, and to be paid out of the city park fund.'

By another section, the board is given 'exclusive power to employ and pay all such superintendents, employees and other persons as it may deem necessary for maintaining, empowering and controlling all park property,' and by another section it is provided that the board 'shall alone have authority to expend the park fund.' The record before us does not disclose the exact extent of the park property of the city, nor does it disclose the precise sum that is collected and expended for its maintenance, but enough does appear to show that the property is extensive, and that the sum collected and expended upon it amounts annually to a large sum. It is plain from these provisions of the charter that the board of park commissioners engage in enterprises which too commonly give rise to personal injuries to the workmen engaged therein, injuries for which the enployer may be liable. Were the same work performed under the authority of the city council, the city would be liable for such injuries as were caused by the negligence of the employer, and no good reason exists why it is not so liable when the employer is the board of public works of the city. In the instance before us, it will be observed from the quotation made from the charter that the board named has special authority to care for the trees of the parks. Dead limbs on such trees are a menace to the public who use the parks, and it was not only within the power of the board of park commissioners to cause their removal, but it was their duty to do so. It cannot be said, therefore, that there is no legal liability on the part of the employer for an injury arising out of the prosecution of the work, unless it can be said that, under no circumstances and under no conditions, could such a liability arise. This, for the reasons before stated, we cannot concede.

In support of the conclusion of the trial court, we are cited to our own cases of Russell v. Tacoma, 8 Wash. 156, 35 P. 605, 40 Am. St. Rep. 895; Clark v. Seattle, 102 Wash. 228, 172 P. 1155; and Nelson v. Spokane, 104 Wash. 219, 176 P. 149. In the first of these cases, it appeared that by an act of Congress there was granted to the city of Tacoma a license to occupy and control, for the purposes of a public park 'for the use and benefit of the citizens of the United States, and for no other purposes,' a certain described tract of land known as Point Defiance. The charter of the city of Tacoma provided for a board of park commissioners, and made it the duty of the board to take charge of the property and make improvements thereon. While the board was in possession of the park and were improving it for park purposes, an employee of the board, while engaged in work of improvement was injured by an explosion of dynamite which was stored in a building erected by the park commissioners. It was held that the city was not liable for the injuries caused the workman by the explosion, the decision being rested on the ground that the city was not the owner of the park, and in improving it was exercising a power or franchise conferred upon it for the public good, and not for a private corporate advantage, and distinguished the case from somewhat similar cases on that ground. It was said, however, that it was not always easy to draw the line between the functions of a municipal corporation which it exercises in its governmental capacity and those which it exercises in its proprietary capacity. This case, we think, is hardly controlling of the present one, as here the city does own the parks, and it may, to a certain extent at least, use them for its private emolument. It may, to illustrate, erect therein a substation to...