Puget Sound Alumni of Kappa Sigma, Inc. v. City of Seattle

• Citation: 70 Wn.2d 222,422 P.2d 799
• Decision Date: 12 January 1967
• Docket Number: 37642,Nos. 37641,s. 37641
• Court: Washington Supreme Court
• Parties: PUGET SOUND ALUMNI OF KAPPA SIGMA, INC., a Washington Corporation et al., Respondents and Cross-Appellants, v. The CITY OF SEATTLE, a Municipal Corporation, Appellant and Respondent. NORTHWEST STEEL ROLLING MILLS, INC., a Washington Corporation, Respondent, v. The CITY OF SEATTLE, a Municipal Corporation, Appellant.

Page 222

70 Wn.2d 222

422 P.2d 799

PUGET SOUND ALUMNI OF KAPPA SIGMA, INC., a Washington

Corporation et al., Respondents and Cross-Appellants, v. The CITY OF SEATTLE, a Municipal Corporation, Appellant and Respondent.

NORTHWEST STEEL ROLLING MILLS, INC., a Washington

Corporation, Respondent, v. The CITY OF SEATTLE, a Municipal Corporation, Appellant.

Nos. 37641, 37642.

Supreme Court of Washington, En Banc.

Jan. 12, 1967.

A. L. Newbould, Corp. Counsel, John P. Harris, Asst. Corp. Counsel, Seattle, for appellant.

Reseburg, Duncan Therriault & Cogan, John P. Cogan, Seattle, for respondents.

HUNTER, Judge.

In these consolidated actions, 12 plaintiffs (respondents-cross-appellants), claiming the right to represent a total of 92 persons in a class action, sought recovery from the defendant (appellant), city of Seattle, of sums paid to the defendant in connection with street vacations sought and obtained by such 92 persons. The plaintiffs also sought a permanent injunction enjoining the city from collecting such charges in the future.

The trial court (1) granted 10 of the 12 plaintiffs summary judgment against the city of Seattle, allowing them recovery of the sums which they had paid to the city, less $100 paid by each as a filing fee upon their respective petitions for street vacations; (2) allowed interest upon the amounts recovered from the date such sums were paid to the city; (3) dismissed claims of plaintiffs Topp and West Seattle Congregational Church with prejudice as barred by the statute of limitations; (4) denied with prejudice the claim that a class action could be maintained in behalf of all 92 persons alleged to be similarly situated; and (5) permanently enjoined the city from making any street vacation charges in the future, other than the $100 filing fee upon each petition to vacate thereafter filed.

The city of Seattle appeals from the judgment in its entirety except as to the court's dismissal of two of the plaintiffs and the denial of plaintiffs' claim of a class action.

The plaintiffs in King County Cause No. 599874 cross appeal from the judgment dismissing the claims of plaintiffs Topp and the West Seattle Congregational Church and from the dismissal of the plaintiffs' claim for a class action in behalf of the unnamed persons who had paid like charges to the city.

The record discloses that since 1937 the city of Seattle has required all petitioners for street vacation to pay an initial fee of $100. The city then processes the petition through the city council's Streets and Sewers Committee. This includes consideration of the petition by 17 departments or subdivisions of city departments, all of which then make recommendations to the Board of Public Works as to whether the petition should be granted. On public notice, a hearing is then held before the Streets and Sewers Committee as provided by RCW 35.79.030, and, if the committee recommends granting the petition to vacate, the petitioner is informed that it is the city council's policy to charge the petitioner one-half of the appraised value of the area sought to be vacated, less the $100 paid. The city engineer procures such appraisal and notifies the petitioner that the vacation ordinance will not be introduced until such sum is paid. On receipt of such portion of the appraised value, the vacation ordinance is then introduced and considered. If the ordinance fails of passage, the sum paid by petitioners, less the $100 initial filing fee, is refunded.

The record further discloses from an affidavit made by David Levine, a former member of the city council, that the procedure for requiring payment of a filing fee plus 50 per cent of appraised value was pursuant to a motion passed by the city council on April 12, 1937. It appears that such action by the city council is not a matter of public record, and that the city has made such charges since 1937, without any ordinance ever having been enacted, either fixing the $100 filing fee or exacting payment of such portion of the appraised value.

The city's first assignment of error is to the trial court's judgments in behalf of the 10 plaintiffs who recovered the vacation charges exacted by the city, less the $100 filing fee.

The city argues that it is proper for the city to impose reasonable conditions in connection with the granting of street vacations which are for the public benefit, and the requirement of a fee equal to one-half the appraised value of the area sought to be vacated constitutes such a reasonable condition.

Neither the state statutes nor the city charter authorizes the imposition of such a condition for the consideration of a petition by the city council for the vacation of a Seattle city street. It appears obvious that the required payment of one-half the appraised value of the property is unrelated to any administrative cost; that it constitutes a compensation required by the city for a value enuring to the person seeking the vacation of the street abutting his property by reason of its vacation. This is an attempted sale of property to which the city has no fee.

We have never departed from the rule of law first stated by the Territorial Court 98 years ago in Burmeister v. Howard, 1 Wash.T. 207, 211 (1867):

(W)hen an easement is taken as a public highway, the soil and freehold remain in the owner of the land encumbered only with the right of passage in the public; and upon a discontinuance of the highway, the soil and freehold revert to the owner, and in the case of streets and alleys, the proprietors of adjacent lots own the soil to the middle of the street, subject only to this right of passage in the public; and upon a discontinuance of such street or alley, the adjacent owners of lots on each side take the soil to the middle of the street. * * *

See, also, Nystrand v. O'Malley, 60 Wash.2d 792, 375 P.2d 863 (1962). RCW 35.79.040 expressly states that vacated streets 'shall belong to the abutting property owners.'

If the easement for public travel has any value to the city, the street may not be legally vacated. RCW 36.87.060 provides in part:

If the county road is found useful as a part of the county road system it shall not be vacated, but if it is not useful and the public will be benefited by the vacation, the board may vacate the road or any portion thereof.

This statute applies to counties, but the decisional law applying to cities is the same. Young v. Nichols, 152 Wash. 306, 278 P. 159 (1929); 25 Am.Jur. Highways § 119, at 416.

The city has nothing to sell in such case. 11 McQuillin, Municipal Corporations (3d rev. ed.) § 30.189, at 134, states:

A municipality is not entitled to compensation for loss of a public easement in streets in which it does not own the fee. It thus follows, where a street is vacated by a court on the application of abutting landowners, the municipality has no such proprietary interest therein as to entitle it to compensation.

This exact issue was before the Supreme Court of Illinois in Lockwood & Strickland Co. v. City of Chicago, 279 Ill. 445, 117 N.E. 81 (1917), in which the court struck down an ordinance of the city of Chicago requiring payment of $2,694 for vacation of an alley under guise of a fund to indemnify the city against damages arising from the vacation. The court said, at 449, 117 N.E. at 83:

The legislative powers of a city must be exercised for the public benefit, but that does not authorize a municipality to sell or bargain legislation as a means of obtaining revenue. It would be a novel proposition to hold that a city, as a condition precedent to the exercise of its lawful power and authority to vacate a street or alley no longer needed for public use, could demand and receive from private parties a sum of money for its action. Such a holding would be dangerous in principle, contrary to good morals, and against public policy.

Moreover, in the instant case, the city of Seattle has required the payments in question without the enactment of an ordinance as required by its city charter for the exercise of legislative authority.

The charter of the city of Seattle, Art. 4, § 7, provides that 'Every legislative act of said city shall be by ordinance. * * *' Art. 4, § 14 enumerates in detail the legislative powers of the city and provides that such powers shall be exercised by ordinance 'and not otherwise.' (Italics ours.)

RCW 35.22.020 requires that the manner in which cities of the first class shall exercise the powers conferred upon them by law, with respect to their own government 'shall be as provided in the charters thereof.' Also, see, New Seattle Chamber of Commerce v. City of Seattle, 88 Wash. 620, 153 P. 351 (1915); 5 McQuillin, Municipal Corporations § 15.03, at 57.

Therefore, the 1937 motion as a legislative act constituted an unlawful exercise of legislative authority.

The city further contends the trial court erred in granting each of the 10 plaintiffs judgment for recovery of sums paid less the $100 filing fees for the reason that the payments were made voluntarily.

The city relies on the rule of law that disallows recovery of voluntary payments when paid to satisfy an unauthorized demand, unless the one demanding the payment has induced it through coercion or fraud.

This case does not present the usual factual situation which exists in cases of voluntary payment in transactions between individuals. In such cases, the general rule applies that

(A)s between individuals, money voluntarily paid on a claim of right, with full knowledge of all the facts, in the absence of fraud, duress, or compulsion, cannot be recovered back merely because the party at the time of payment was ignorant of or mistook the law as to his liability. * * * 40 Am.Jur., Payment § 205, at 856.

When, however, a citizen makes payment of an illegal demand by one holding an official position, in order to secure a legal right which such citizen may lawfully exercise, then there is an exception to the general rule.

The...