*1 I decision of hand, On the other feel bound State, court in Cook v. 599, 83 Wn.2d majority and, P.2d 725 therefore, cannot with the ma- (1974) agree herein. jority J., J.
Hamilton, Wright, concurs with C.J. dissent. Once (dissenting) again Stafford, —I has majority chosen clear dictate of ignore the Const. 2, art. 26 which provides: §
The legislature law, manner, shall direct in what and in what courts, suits brought against state.
(Italics mine.) My objection to the action taken
majority has been stated in both Cook v. State, 83 Wn.2d
599,
[No. 1975.] Metropolitan of Tacoma, Respondent, v. Park District Washington et al, Appellants. *2 Attorney Torve,
Slade and Theodore O. Gorton, General, appellants. Assistant, for respondent.
Herbert Gelman Couture, and Gelman & right of the State of J. This case involves the Hunter, granted Washington, appellant cancel herein, to a use deed respondent Metropolitan Park District of Tacoma, to the District), (hereinafter to as the for the use referred certain tidelands. acquired prop- 1916, Club certain
In the Tacoma Yacht city Puget in the of Tacoma somewhat on Sound erties adjacent Park. Defiance the Tacoma Smelter Point dumping property come due to the The had into existence eventually by slag Smelter, into water the Tacoma causing existing spit tidelands. the formation of a on the originally newly spit formed The tidelands and were conveyed, by legislature, District for deed use playground purposes. then allowed District property for the Yacht Club to make purposes. marina knowledge, the time, Since that the State’s members for its provided services marine has Yacht Club large. public at and the clubhouse constructed Yacht Club the Tacoma 1931,
In into a entered District 1932, the and, in on the regard to thе entire Club in Yacht formal with the lease Dis- time, At both deed. the use area covered that the mistaken belief trict were under and the State limits. The harbor question the outer within land in was acquired original under the land remained on the clubhouse present was clubhouse 1916 use deed until when erected. be- Yacht Club District, and the State, the
In area leased to club that the of the fact aware came dump, slag including outside was all of the District, existing Commission lines. The Harbor harbor the then tidelands new platted effect, created lines, which, new ownership. new tide- Thesе had full over which the *3 three designated divided into A,” “Block and as lands were (1) the old Yacht area in which tract 1 was the tracts: (2) boats; for tract well as the berths located, Club was as dump; (3) slag principally tract the contained slag open of corner the water, the northeast contained launching public dump, public area, area, the float Ferry landing. Washington the Negotiations and the the District commenced between compliance being in formed committee State with a citizen Washington statute, the use deed 79.08.080, with BCW provides: which application of the commissoner is made to Whenever city by any incorporated or or metro- public town lands any tide park of state owned
politan for the use district city corporate or limits of said lands within or shore park municipal metropolitan district for or town applica- purposes, playground cause such he shall and/or office, of his and shall in the records to be entered tion then forward a committee appoint governor, who shall same to the city representative or citizens of said of five of lands and to the commissioner town, in addition development, of both of conservation director the whom shall committee, members of said be ex officio investigate they said lands and determine whether are purposes; they suitable and needed for and, such if so certify governor find, the land commissioner shall city that the or shall be deeded to the said or town metropolitan park governor district and the shall then execute a in Washington, deed the name of the state of secretary attested conveying state, the use of city such lands to metropolitan pаrk said or or town purposes district for long said so as shall continue to hold, use and purposes. maintain said lands for such investigations made extensive The committee and con- possibility selling conveying the tidelands, sidered deed, them some combination As two. provided 79.08.080, Cole, in RCW Mr. Bert the Commis- Lands, of Public did serve as an sioner ex officio member capacity, in and, committee Mr. Cole did view the representa- area under consideration, and did meet with tives the District and the Yacht in Club order to discuss plans. According finding their court, the trial supported by record, aware, committee was past aware, should have been of the land, use of this as plans expansion by well the future the Yacht Club. Finally, agreed in 1964, the State to sell tracts 1 and convey the District for $75,000,and to tract 3 to the District finally under a use deed. This deed was executed Janu- ary of 1965.The District in return leased the area to entire arrangement the Yacht Club under a similar en- as that parties tered into between the time, 1932. At Yacht Club and the District were under the belief that all slag dump purchased was contained those tracts by tip slag dump District, since otherwisе the *4 would be landlocked. after the months Yacht Club had commenced 1971,
In tip $350,000 of a new on the clubhouse the construction dump, slag search revealed a title that this area fell within the was owned State covered the use tract 3 and Commissioner, notifying Upon the of Public deed. Lands commissioner caused an mistake, the order to be issued the use the deed based on his contention cancelled that which comply with facilities did not the clubhouse Yacht Club’s the provisions later, months the of RCW 79.08.080. Two Yacht Club that the State the commissioner’s office notified willing $6,276 Club for was the to the Yacht rent area' per year. injunctions, following the matter a series
In 1973, County. Superior for Pierce Court to trial came refusing deed for tracts to reform the court, trial while dump, slag RCW held that the entire 2, to include existence been violated 79.08.080 had not irrespective and, facilities, clubhouse other Yacht Club illegal plead estopped an was this, that the State property Fi- for the cancellation order. basis enjoined nally, was held that court interfering and their with the District’s use arrangement From deci- rental Yacht Club. that brings apрeal. sion, court that trial erred contends
The State asserting purported stat estopping violations of the it from grounds cancelling utory purposes 79.08.080,as of RCW argues that the initial issuance deed. The State the 1965use contrary an ultra vires act deed constituted a use position merit. This is without statute. “wholly legal are done without vires acts those
Ultra existing in direct violation of statutes authorization or , P.2d 833 Matthews, . .” Finch v. legal (1968). authorization RCW 79.08.080establishes appli- provides an issuances of use deeds. It when appoint made, shall 5-man citizen cation Governor investigate application committee to into the merits of the order that can determine whether deed should be granted. application If the committee satisfies itself that the requirements, meets the it certifies the same to the Gover- statutory procedure nor who shall execute the deed. This fully complied empowered to was with and the committee requisite legal authority make the certification exercised statutory accuracy in the manner. The of that committee’s *5 subject factor debate, determination but that tо any way authority does not in its to make it. There- affect question fore, we hold that in did not result the use deed statutory derogation from ultra of vires conduct in author- ity. theory
Initially,
equi
of
contends that the
the State
estoppel
inapplicable
of the use
is
since the issuance
table
disagree.
predicated on a mistake of law. We
This
deed was
authority
public
a
acted without
is not a case where
official
party
an erroneous statement of law
which a
made
unjustifiably
e.g.,
Magnesite
See,
State Northwest
relied.
v.
(1947).
in
Co.,
P.2d 643
stated earlier
As
fully
оpinion,
this
was
authorized to
the citizen committee
certify
findings
application
to
the District’s
its
review
any legal
Furthermore,
Governor.
there was never
question
comply
as to whether
had to
with
the District
requirements
require
of
79.08.080,
RCW
what
those
Arguably,
might
ments were.
the committee
have erred in
determining
qualified
that the District’s intended use
for a
use deed. However,
occur,
if such a mistake did
it was the
judgment,
opposed
misconcep
of
result
an error
a
misinterpretation
tion or
Therefore,
of the law.
the ulti
premised
mate decision
a
to issue
use deed was
оn the
complied
determination that
District
factual
applicable
rely
fully justified
law, and the District was
ing
Sponburgh,
on that decision. State ex rel. Shannon v.
(1965).
66 Wn.2d 135,
We turn to now the fundamental issue whether the estopped alleging purported should, fact, in be from statutory purposes violations of the of RCW 79.08.080as grounds cancelling the use deed. conclude We that the preclude making doctrine does from abovе mentioned assertions. fully recognize
We that this court must be cau applying equitable estoppel against espe tious in State, cially functioning governmental, when the State is in its as opposed proprietary capacity. Cooper, to PUD 1 v. (1966). Wn.2d 909, 421 P.2d However, when the State dispose undertakes to or lands, either lease proprietary capacity. sale, it then in State, acts its Strand v. (1943). 107, 132 Wn.2d P.2d 1011 Furthermore: equitable estoppel applied The doctrine of will be against against municipality politi- the state or a or other entity acting governmental cal when in its as as well acting necessary proprietary capacity, when its when prevent injustice to and the exercise of its manifest governmental powers thereby. impaired will be supra In Matthews, 175. addition to these funda- Finch v. at party estopped considerations, before a will from mental be any legal pro- making limitations, out his case without ponent clearly must of the doctrine show:
(1) admission, act, an or statement, inconsistent with (2) party
claim afterwards asserted; action the other (3) act; on admission, statement, the faith such injury рarty arising permitting such other to party repudiate admission, first contradict or such statement, act. (1974). 623, 521P.2d 736 State, v.
Shafer requisite case, Applying criteria to the instant these three correctly found that the State trial court believe the we granted with either actual a use deed the District knowledge intended use to which or constructive including put, inten- property Yacht Club’s be would finding sup- expand facilities. clubhouse This tion to ported that the District had leased the fact use deed 1932, under similar Club since to the Yacht substantially purposes. granted same 1965, for the thorough appointed in- made a citizen committee Also, the prior vestigation and had all relevant facts before granted. certifying that the deed should the Governor *7 Secondly, reliance on the use discloses that in the record purchase land from did two tracts of deed, the District Tacoma Yacht into a new lease with the and entered new lease furthermore, the District used this Club, and buy procure $75,000 a loan of in order to collateral to Finally, requir- criteria, third of land. other two tracts ways: (1) injury ing relying party, met several to is (2) loan; will its collaterаl for the it the District will lose reversionary Club’s interest in all of the Yacht lose its District lease, under reverts which, facilities (3) upon expiration it reve- lease; and will lose the generated by supports other and nue the lease which jurisdiction. playground the District’s facilities within clearly applying requisites meet the for These facts estoppel equitable It must be re- to this case. doctrine proprietary functions in its membered that when the State any capacity, no treatment than two it will receive better bring dispute who their before the individuals Paving Washington final State ex rel. courts for resolution. (1916); Finch v. 450, 156 P. Clausen, 90 Co. v. Wash. supra. In fact: Matthews, always scrupu- government be should The conduct pub- knowl-
lously just dealing citizens; and where a with its authority acting and with his lic within official, edge pertinent and made a commitment facts, has of the party to his detri- it made has acted the ment in reliance to whom was should commitment,
on the official that permitted to revoke that commitment. Sponburgh, 135, 143-44, ex rel. Shannon v. (1965). Therefore, P.2d is evident more forthrightness average than is demanded of the State In case, citizen. the instant a commitment madе such was detrimentally the State and relied the District. inequitable grossly It would be both and unconscionable now allow State, case, under facts of this to rescind that commitment. judgment of the trial court is affirmed. and JJ., and Finley, Rosellini, Hamilton, Wright, J. Pro Tern., concur.
Henry, rejects (dissenting) J. court State’s —The Horowitz, estoppel apply prevent contention does not the State enforcing required the use deed restrictions RCW conformity pro- 79.08.080.The use deed in with the statute vides: foregoing property conveyed The use of the for mu- nicipal park playground only. cоnvey- purposes This only ance remain shall in full force and effect for such period grantee as the to hold, use, shall continue property municipal park play- maintain the
ground purposes. grantee Should the cease to use the purposes permit prop- such the use *8 erty, any portion any purpose, or other it, of for grantor may grantee’s enter and terminate the use. (Italics mine.) provided not contend
The State does the facilities vio- lated italicized restrictions. The contends, rather,
the Park District and its lessee Taсoma Yacht Club violated club, those restrictions when the with the of the authority park board, erected a on the deed clubhouse private land for the benefit of its and such as the members others club, in discretion, its To contention permitted. support the club one, heavily the State relies articles 5 and 6 of the club by-laws with member- dealing ship in requirements of which are set forth pertinent parts the margin.1
The State points out the club’s members by-laws permit to be selected in such a or way as to either out keep part: Membership, Dues, provides 1Article in Fees and only. by Membership “Section 1. of all classes shall be invitation Any person, male or female or of who is a citizen of the United States friendly country peace age States, at of with the United over twenty-one (21) years, good character, may an moral be extended join invitation to this Club. (a) Membership of male “Section Active shall consist members 3. twenty-one years age at of at least who are the bona fide owners any pay least a half in . Members shall interest vessel. . . Active any ($200.00) an initiation fee of Two Hundred Dollars and or payable Federal Tax. Thereafter at the rate dues shall become ... Forty-Two ($42.00) per Dollars annum. Active Members shall be voting members of this Club . . . Membership. “(d) with, Persons boat Associate without owner- may qualified Members, ship, to be otherwise Active be invited but Membership. Associate Members shall be entitled Associate House, grounds, privileges of the Club and to the social activities eligible meetings except Club, but shall not be to attend business as the guest moorage Member, vote, privileges of an Active or to or to or the pay Club Pennant. Associate Members shall an initiation fee of One ($100.00) amount, Hundred Dollars and dues the same time Active manner as Members. . .” . provides part: Membership, Invitations Article membership proposed be Invitees for all classes must “Section 1. by writing by another, on suitable one member and seconded provided Except Invitee that no invitation forms Club. Membership membership shall be considered or admitted Active sponsor certify that he introduced the invitee at at unless his shall has meeting Club, least one either or Dinner Discussion General Secretary Meeting, Presiding Officer, recorded shall introduction, preсeding proposal. be three months within next necessary, when omitted action the Board of Trustees.
831 membership persons the applying, discourage those negative single vote A reason. for whatever does not like applicant, how no matter by any renders club member worthy, ineligible membership. masking capable of membership requirements are
Such statutorily prohibited states: 49.60.010 RCW discrimination. practices hereby legislature The finds and declares any against of inhabitants because
of discrimination of its age, origin, sex, status, marital race, creed, color, national any physical presence sensory, mental, or hand- or the of icap of that such discrimina- concern, are a matter state only rights proper privileges tion threatens not and of its but menaces institutions and foun- inhabitants dation of a free democratic state. right
Moreover, RCW 49.60.030creates as a civil (b) right enjoyment any The of of the full advantages, privileges accommodations, facilities, or any place public assemblage, accommodation, resort, or amusement; may membership
Only and active is membеr vote an active (a). Article section 3 restricted to male members. practice, park however, and club contend in
The board essentially members and nonmembers have same club practices privileges; discrimination, that the club no actual Furthermore, lease, or covert. the club from the board expressly paragraph (6): July provides 1,1964, dated party (club), premises, Second in the use of said shall proposed together Invitee, of the name the name of his sponsor posted and second shall be on the bulletin board at the Club any House for at least two weeks before action be taken Board Trustees. signed proposal, certified, “Section As soon 2. written so received, Membership it shall be referred to the Committee which investigation desirability pro- shall conduct a careful into the of the posed standpoints report writing Invitee from all to the Board of Trustees. requirements “Section 3. When Sections Article this fulfilled, proposed have been Board Trustees shall invite the membership vote, Invitee to an unanimous refer to a committee appointed by Commodore, Membership or back to the Committee investigation, reject for further it.” any person against race, because not discriminate origin. creed, color, or national provision argues does not responding The State by- any club; that the club’s less a the club make any be ac- permit member do laws overhanging of a membership cepted threat without the *10 More- single reason. for whatever a member blackball voluntarily applied for points the club out over, the State liquor liquor the to serve license a class H and obtained guests; licеnse is such a their drink to members and private or not in whether character the illustrative of club’s practice. respects that character other it maintains disagrees the majority opinion with does state The playground park and control contention the State’s membership private given the purposes club with to a if use deed violation the described, constitutes restriction opinion agrees majority with Instead, the restrictions. estopped to enforce park that the State board club pursuant imposed to RCW restrictions the use deеd 79.08.080. estoppel because the com- is said to arise Governor’s
The responsibility charged 79.08.080with the RCW mittee making to the on whether recommendations Governor given park board, knew, deed should use permit park board intended to known, the should have for a to use the deed Tacoma Yacht Club objec- program made no club’s clubhouse in aid private the club and character of tions to the park membership requirements. The board and club club they good faith the con- relied in contend thereafter validity relying deed; club, that in so of the use tinuеd objection park State, board or the in- with no from the expense mortgage indebtedness and curred substantial incurred; which would not have otherwise been that this prejudicial change position requires be es- State topped to use deed. now cancel the estoppel difficulty applying claimed as
The
justifiable
legally
against
lack
reliance is
is that
State
Washington Employers,
ing
Inc., 77 Wn.2d
Leonard v.
here.
(1969). there said:
court
271, 280-81,
In the instant gift board, and the deed of the use *11 by represented park In the earlier counsel. were each board park negotiation club, and the between the board lease attorneys by represented party All also counsel. each was represented parties experienced. Each of the were able knowledge meaning charged of RCW of the was park The board and the use deed restrictions. 79.08.080 the had known, have no knew, or should the club by convey governed power lands RCW 79.08.080 to by private private club restrictive mem a club with for use bership requirements 5 such as those contained articles following by-laws. cases of its The rationale the and 6 Supp. support Columbus, Lancaster v. 333 F. this view. 1971); Fairhope Single (N.D. Corp. Tax Fair Miss. v. 1012 (1968); hope, 576, 206 2d Norton Gaines 281 Ala. So. 588 v. (1955); Traps 387, Lincoln Park
ville, 211
86 S.E.2d
Ga.
Chicago
App.
Park Dist.,
107,
v.
323 Ill.
Moreover, any private beyond power of against was the State abrogate change statute or official to citizen by interpretation or other- provisions the use deed intentionally State v. See or mistakе. and either wise, Magnesite supra. Co., Northwest permits also its facilities club fact that the purposes public generally, be,used fall or for which statutory imposed use restrictions within the Traps Chi- property, Lincoln Park v. makes no difference. supra. cago Dist., Park estoppel is una- however, because follow,
It does
must follow. The
of the use deed
here, cancellation
vailable
many years
the issuance
before
that for
shows
evidence
park
lessee,
board and its
Tacoma
use deed
relationship
enjoyed
characterized
Club,
Yacht
park
genuine
and club
render
board
desire
public,
park
was
board itself
service
maximum
according
Significantly,
financially
render.
unable to
retaining its restric-
Club, while
Yacht
record, the Tacoma
appears
by-law membership requirements,
to have
tive
good
to exclude
faith not
effort
a conscientious
made
morally
membership
anyone
thereto
entitled
who was
required
upon payment
initiation fee and
reasonable
except
liquor service,
shows,
record
dues.
far as the
So
to non-
have been made availablе
the club
the facilities of
substantially equal terms.
members on
members as well as
with actual
committee
There is no evidence
Governor’s
membership
knowledge
re-
of the club’s
or constructive
require-
quirements
those
board
considered
told the
*12
is little
There
violated the use deed restrictions.
ments
good
park
question
faith, al-
club,
board
mistakenly,
though
had
deed restrictions
believed the use
on the continued
and that in reliance
been breached
changed its
substantially
the club
of the use deed
validity
ex-
indebtedness and
large mortgage
by incurring
position
housе and improving
its new club
building
pense
the va-
circumstances,
deny
club
Under these
facilities.
even
gross inequity
of
deed would
lidity
promote
the use
is unavailable.
the defense
though
estoppel
may
a
still
If
court
-inapplicable,
equity
estoppel
in the
hardship
fashion its decree to eliminate inequitable
can be done
apply-
furtherance
interest. This
conditions,
doctrine of
ing
long-recognized
equitable
to the maxim that he who seeks
imposed pursuant
equity
must
Co.,
do
See Seattle v. P.B. Inv.
11 Wn. App.
equity.
653,
[Sjhould ele- the trial court determine that the strict ments оf consi- equitable may are not it estoppel present, der whether or not relief to P. B. might granted Investment maxim, under “He who seeks equity must do Thus, the trial equity.” ap- court deem propriate to conditions impose grant its equitable relief to the City.
See generally McClintock, H. Principles Equity (2d § 1948); ed. 30 C.J.S. (1965). 90-92 Equity §§ Each seeks relief. The and its board party equitable lessee, the Tacoma Club, Yacht are to seek cooperating injunctive relief against the State’s cancellation of the use deed. The State seeks decree upholding cancellatiоn the use deed. if Alternatively, the State cancella- prays tion is not the court enter an order upheld, requiring park board exercise its in use deed rights property solely for públic park purposes.
I would conditionally grant the injunctive relief sought also (and grant State’s alternative prayer relief) as proper the doctrine of application conditions equitable to insure fair access without discrimination to all who wish to make use of the use deed “municipal park and playground I would also purposes.” remand this case for further hearing, upon notice to the interested parties,
determine the conditions to be precise imposed respect of facili- by-law and membership requirements in conformity ties with this opinion. Brachtenbach, J., concur with C.J., and
Stafford, Horowitz, J. 9, 1976. denied rehearing January
Petition for September 18, 1975.] 43600. En Banc. [No. Hutt, W. al, Respondents, Norma et v. R. J. Matison Appellant. General, Attorney Kelly Gerald D. Gorton,
Slade Littlemore, Assistants, M. Joseph appellant. David Enslow, G. B. & Robert Griffin Griffin Condon, for respondents. case issue of
Brachtenbach, presents J. This an employment who elects to terminate employee whether rather can be eligible than valuable benefits lose union