Hotel Cecil Co. v. City of Seattle

• Decision Date: 28 December 1918
• Docket Number: 14408.
• Citation: 104 Wash. 460,177 P. 347
• Court: Washington Supreme Court
• Parties: HOTEL CECIL CO. v. CITY OF SEATTLE. McLAUGHLIN v. SAME.

177 P. 347

104 Wash. 460

HOTEL CECIL CO. v. CITY OF SEATTLE.

McLAUGHLIN v. SAME.

No. 14408.

Supreme Court of Washington, En Banc.

December 28, 1918

Appeal from Superior Court, King County; J. I. Ronald, Judge.

Actions by the Hotel Cecil Company and by W. J. McLaughlin against the City of Seattle, consolidated in the trial and on appeal. Suits dismissed, and plaintiffs appeal. Affirmed.

Vanderveer & Cummings, of Seattle, for appellants.

Hugh M Caldwell, T. J. L. Kennedy, and Hugh R. Fullerton, all of Seattle, for respondent.

MITCHELL J.

These two cases, practically identical as to the facts stated in the complaints, so far as the law governing them is concerned, were consolidated in the trial court for the sake of convenience and are so presented here. We use the case of the Hotel Cecil Company, a corporation, appellant.

According to the complaint, appellant, a private corporation, on December 8, 1916, was the owner of a restaurant and grill room in Seattle. The complaint states:

'On the 8th day of December, 1916, the defendant, through its duly constituted authorities, determined that said place of business of this plaintiff constituted a nuisance, and directed its summary abatement as such, and on said day, in pursuance of such purpose, and in the exercise of such power and authority as was vested in it by reason of the premises the defendant through a squad of its police officers completely wrecked the plaintiff's said place of business, and utterly demolished all of the personal property of the plaintiff therein contained.'

The complaint further states that appellant's place of business was not a nuisance, nor conducted as such. It alleges damages, and that within the time limited by the city charter it filed a proper claim for damages, and that such claim was rejected by the respondent. The claim referred to and made a part of the complaint states as follows:

'* * * On December 8, 1916, at 1:30 o'clock a. m., a squad of police officers of the city of Seattle, purporting to act under and by virtue of some authority and warrant of law vested in them by said city, and acting under the express authority of the mayor of said city, and the chief of police of said city, and the other duly constituted authorities of said city, appeared at this claimant company's place of business aforesaid. * * * Thereupon said police officers at said time and place, * * * under and by virtue of some purported authority and warrant of law vested in them by said city, and under the express authority and warrant of law vested in them by said city, and under the express authority of the mayor, the chief of police, and other duly constituted authorities of said city, proceeded to and did wreck, smash, break, tear out, completely demolish and destroy, or render utterly valueless, the property of this company hereinafter mentioned and described, and claimed by the said authorities to constitute a nuisance as aforesaid, to wit.'

There follows a description and value of the personal property destroyed, and the allegation that the place was not a nuisance, nor used a such. A demurrer containing six different grounds was interposed by respondent. It was sustained. Appellant chose to stand on the complaint, and judgment of dismissal was entered, from which the appeal is taken. The case is argued here on the general demurrer.

The main point in the case is suggested by that portion of the complaint which is as follows:

'The defendant, through its duly constituted authorities, determined that said place of business of this plaintiff constituted a nuisance, and directed its summary abatement as such, * * * and in the exercise of such power and authority as was vested in it by reason of the premises, the defendant, through a squad of its police officers, completely wrecked plaintiff's said place of business,' etc.

This language is not clear as to what is meant by 'its duly constituted authorities,' nor by the word 'determined.' Much favor is extended to the allegations of a complaint tested by general demurrer. Obviously, however, the complaint must not be taken as alleging that any court of the city determined that the place was a nuisance; for it is not so stated, as would be required by section 287 of Rem. Code. Nor can it be considered to have been determined by the city on account of any ordinance, because section 291, Rem. Code, provides for the pleading of an ordinance (by its title and date of passage) to convey to the court knowledge of the existence of such ordinance, and the tenor and effect thereof.

The controlling question in the case is whether or not the officers charged with having destroyed the property acted as agents of the city with respect to its corporate duties and functions, as contradistinguished from those relating to the general public. If the first, the rule of respondeat superior applies; if the latter, the city is not liable.

On calling attention to the statutory remedies against public nuisances consisting of indictment or information, a civil action and abatement, counsel for appellant contend that, the city having elected to pursue abatement, it should be held liable for its acts, if it destroyed property which was not in fact a unisance. Supporting such view, citation is given of a note on page 884, Cooley's Constitutional Limitations (7th Ed.) in that portion of his work discussing 'the Police Power of the State,' as follows:

'If a municipal corporation proceeds to abate a nuisance, it possesses for that purpose only the rights of any private person, and, if injury results to an individual, it must justify its action by showing that a nuisance existed in fact.'

Concerning the matter being immediately inquired into, viz. governmental and corporate functions, one will not quite appreciate the note quoted without understanding the cases furnished in its support, only two of which need be noticed:

First. The case of Welch v. Stowell, 2 Doug. (Mich.) 332. It is a case of demolishing a house occupied as a house of ill fame, and the court held the agents and officers of the city liable for the destruction of the building on the theory that only the manner of using the building, and not the building itself, was subject to abatement. But for the purpose of showing the reason for holding the officers of the city liable for destroying the building the opinion calls attention to an act of the Legislature conferring on the city council 'full power and authority to make all such by-laws and ordinances as may by the said common council be deemed expedient for effectually preventing and suppressing all disorderly houses and houses of ill fame,' pursuant to which grant of power the city council passed an ordinance, entitled 'An ordinance to suppress disorderly houses and houses of ill fame,' the second section of which provides:

'When any such house or building, so occupied, shall be deemed by the common council to be a common nuisance, it shall be competent for said common council to abate such a nuisance, by ordering such house or other building to be pulled down and removed,' etc.

And further that afterwards the council, by resolution, declared and adjudged the plaintiff's house to be a nuisance, and empowered and directed the city marshal to proceed and demolish it, which was done by the defendants, one of whom was the city marshal, the others assisting him. Thus there was liability here, not simply because section 2 of the ordinance reached too far in authorizing the destruction of the building, but also because, by the act of the Legislature, the city ordinance, and its resolution ordering the destruction of the building, the city had taken charge of the matter in its corporate capacity, and was not action in a governmental way for the general public. The defendants, as officers and agents of the city, acted pursuant to specific, formal, corporate authority.

Secondly, and to the same effect, is the case of Mayor of Americus v. Mitchell, 79 Ga. 807, 5 S.E. 201, where, upon the report and recommendation of the board of health, the mayor and council had declared and determined the thing in dispute (mill pond) to be a nuisance and dangerous to health, and ordered it abated. The owner sought to enjoin the city, alleging the pond was not a nuisance. The court held the determination by the health officers and the city council entitled the city to abate the nuisance, on the theory that delay might endanger the public health; but, if the city did abate it, it would be at its peril, and that, if the owner in a suit at law could show the pond was not a nuisance, the city would be liable in damages. The city in this case, it is to be noticed, was acting for itself under its own ordinance, and not for the public at large.

Counsel next call attention to that portion of the case of Yates v. City of Milwaukee, 10 Wall. 497, 19 L.Ed. 984, wherein the court uses this language:

'It is a doctrine not to be tolerated in this country that a municipal corporation, without any general laws, either of the city or of the state, within which a given structure can be shown to be a nuisance, can, by its mere declaration that it is one, subject it to removal by any person supposed to be aggrieved, or even by the city itself. This would place every house, every business, and all the property of the city at the uncontrolled will of the temporary local authorities.'

It was a case to enjoin the city form removing a wharf. Examination of it shows that the Legislature of Wisconsin had enacted a law which authorized the common council of Milwaukee, 'by ordinance, to establish dock and wharf lines upon the banks of the Milwaukee and Menomonee rivers, restrain and prevent encroachments upon said...