Seattle Ex Rel. Dunbar v. Dutton

I am unable to concur in that part of the majority opinion which holds that the board of park commissioners has power to compromise and pay damage claims, and will briefly state my position.

The department of parks, according to the city charter, is not a separate entity or independent municipal corporation. It is but one of many departments of the city government. Ferry v.Seattle, 116 Wash. 648, 200 P. 336, 203 P. 40. Section 29 of art. 4 of the charter, among other things, provides that

"All claims for damages against the city must be presented to the city council . . ."

It thus appears that the city council is the only authority, under the organic law of the city, which can take cognizance of damage claims. In Cole v. Seattle, 64 Wash. 1, 116 P. 257, it was said:

"The city council is the only authority which under the organic law of the city, can take cognizance of such [damage] claims."

Article 13 of the charter creates the department of parks. Section 1 of that article specifies the source from which the park funds may be derived. They are gifts, fines and licenses, rents, appropriation and tax levy which must be "provided by the city council." Sections 3 and 4 of this article define the powers and duties of the board of park commissioners. Nowhere in the delineation of powers is the park board given authority to settle and pay damage claims. In none of the powers given is such power necessarily implied. Section 8, it is true, provides that the park commissioners alone shall have authority to expend the park fund, but this must be read in connection with the powers given to that board. It would appear that, when the drafters of the charter provided, as above stated, that all claims for damages against the city must be presented to the city council, they did not deem it necessary to negative such power in the park board when defining the powers of that board. It cannot be assumed that the claim in the present case was made with the consent or approval of the city council. That body, when the claim was presented to it, rejected it, and this fixed its status with reference to the city council until it should affirmatively appear that that body had changed its position. The mere fact that the board of park commissioners compromised and settled the claim cannot give rise to a presumption that the city council had altered its position with reference thereto. In my opinion the judgment of the trial court was right and should be affirmed.

I therefore dissent.

MITCHELL and TOLMAN, JJ., concur with MAIN, J.