*1 February 8, 1955.] En Banc. [No. 33198. Eastvold, Don on the Relation Washington, State Yelle, General, Plaintiff, as Attorney v. Cliff Auditor, Respondent.1 State Assistant, J. General and Arnold Attorney Cobley, for relator. General, Sinnitt, for respondent.
Paul Assistant Attorney Shefelman, amicus curiae. Harold S. J. filed a The attorneygeneral petition
Rosellini, di for an alternative writ mandate praying court auditor, him rected the state forthwith commanding the state issue a warrant highway department final offer made department defendants in a condemnation accordance proceeding, Stat., 8.04.090 Rev. with the RCW Rem. provisions [cf. he should not be 894], or show cause directed why do In his petition, general so. compelled attorney 1Reported (2d) in 279 P.
alleged issued an order of had been proceeding, that' no there- condemnation review and that there been filed clerk of the from, had with pending a certificate of the wherein action *2 requirement possession and use. He state’s of immediate alleged auditor issue the further refused to warrant necessary pos- secure an of immediate state tо order jeopardizing high- thereby progress use, and of the session damage way program Prospective of this to the state. state if the auditor refuses to warrants in the issue such alleged. petition, was also Based on an future alter- writ native was issued. up return, the auditor set basis for his re- his as the invalidity to issue the
fusal warrant RCW 8.04.090. presents question: posses- case Can the state take private property public making for use without first sion of just compensation, amount has been deter- of which by jury waived? mined unless pro- constitution, I,
The state Art. amendment vides: “ private property damaged . . . No taken or shall be public private just compensation having or use without paid been made, first owner, into court for the and no right-of-way poration appropriated any shall be use of to the cor- other than until full or ascertained and there- money, for be first made in into irrespective any any court for the owner, benefit from
improvement proposed by corporation, compen- such which unless a jury, sation shall be ascertained be waived, as in recоrd, other civil cases in courts of ” prescribed by manner law. . . . seq., et
RCW 8.04.010 under which relator demands that respondent pertains warrant, issue a to eminent domain the state. RCW 8.04.090reads: require possession “In case the state shall immediate and property sought
use of the of condemned, to be and an order granted, shall been have and no review has attorney general been taken therefrom, the shall, before an possession order of immediate and made, use shall be file pending, with the clerk of the court wherein the aсtion is pos- requirement of immediate a session state’s certificate use shall state the land, and of the which respondents money state further offered to the shall continuing tender of such offer constitutes a that such copy attorney general cer- file a of the shall amount. auditor, shall issue tificate with the state who forthwith payable clerk suffi- to order of the to him a deliver warrant pending in the action is a sum the court wherein pay be offered, which shall forthwith cient to the amount paid ther registry of fur- into the the court. The rеspondent granting shall enter an order
notice the immediate and use necessity, described in the order of the of awarded for the estate, and order which bind shall pay judgment petitioner the full amount final thereafter be taking appropriation lands, real premises, petition described remainder any, injury, lands, are premises, by they estate, real or other from which appropriation, of such reason after *3 against any offsetting ages compensation and all such and dam- special any, accruing benefits, if to such remainder appropriation reason use state of the premises, estate, real or other lands, the described moneys paid any petition. into The court at time entry possession, order after of immediate be with- by respondents, inter- order their drawn appear.” ests shall power of eminent domain is inherent in sov depend specific
ereignty for its and does existence on provisions grant found in a state constitution. by implication grant power do not to the constitution power government state, of a but limit which оtherwise Superior limit. State ex rel. Eastvold be without would (2d) (2d) P. 607, 609, 44 269 560 Court, Wn. necessary, therefore, to
It to determine what becomes language § 16, 9, amendment limits extent Art. power this in eminent domain. inherent Shortly ratified, court this after the constitution was provision extensively analyzed quoted in Lewis v. Seat- (1893), Pac. wherein an owner tle, 794 Wash. brought for land suit recover land .to purposes. argued municipal for street The owner that cor- porations are not entitled to offset benefits to land in deter- mining the amount of due. The court said: apparent exception relating municipal
“It is to corporations contained in the ap- second clause must either ply exempting to the rule of or it must have the effect of corporations paying Ap- such from in advance. pellant apply relating contends that it should rule damages, argues the ascertainment of that the decision [5 rendered in Brown v. Seattle, 35, 31 313] Pac. (1893), city may in effect decides that the benefits, deduct permitted and that it of the weight should be to do so under the being legislation subject. authorities, no there on the damages, In that case held that which would re- adjoining property by sult grading street, of a must attempt be between the for in advance. There was no to discriminate appropriation right-of-way of a and a damaging purpose in relation to prepayment, nor can one be drawn from the appropriation authorities, for right-of-way aof for a uniformly recognized street taking by has been aas country regardless courts of the of where the fee remained.” And, argument' in further answer to the owner’s it municipal corpora- was not the intent of the framers to allow exempt tions to benefits, offset but rather to them from the prepayment, substantially interpretation urged by the bar, relator in the case the court said: apparent give exception “But it is that to the effect exempting making municipal corporations compen- from appropriation, sation at or before the time of the must pay- prescribing either override the clause, the time first purports lay ment, which an down absolute rule *4 exception, no contains or а must be drawn be- distinction appropriation taking right-of-way tween an any a a and of for by purpose. standing other clause, The first requires payment itself, is first made to be where damaged by any corporation any purpose. taken or for holding appropriation of “We know of no case that an meaning land for a street is not a within the such provision.” (Italics ours.) a pointed ambiguities
The court out would further 170 urged adopted, construction the owner were
arise concluded: and construing provision requiring “By this constitutional аs giving
payment cases, in all and the second to be first made damages laying a the effect of down rule clause appropriation by corporations right-of-way than of,a avoided, municipal, is the two clauses all conflict between every part. given full each and Such is force it can receive.” sustained construction best provi- interpretation placed upon the constitutional rejected or criticized has never been sion the Lewis case provide domain now this court. The eminent statutes (See offsetting and cities. of benefits 8.12.190.) 8.04.080, RCW to have his evaluated an owner it taken has to him before many recognized in Peterson It
been
times affirmed. was so
(1893),
a statute
Smith,
163,
32Pac. 1050
wherein
v.
damages
county
authorizing
road
the ascertainment
King
in Askam v.
unconstitutional; and
viewers
.held
(1894),
County,
in that case
the court
Pac. 1097
1,
The Peterson
Hayward,
County
171 destroyed by upon guaranties plain con- its shall struction.” many principles
Among
reasserting
cases
these
(1896);
315,
Hammer,
are Hansen v.
15
elect to have court determine this after possession: the state has taken “The amount into сourt shall constitute com-
pensation paid property: of such Provided, request respondents may, action, a trial the same That assessing purpose the amount the court for the and the amount of to be made ” *6 taking. arising . from the . . position, interpreting support of relator cites cases In his state constitu- United constitution the States various provide expressly payment shall be do that tions which not cases, but in view examined the “first made.” We have significant as au- difference, them we cannot consider thority interpretation of our constitution. the that the construction
The relator and amicus curiae insist
placed upon
provision
Seattle,
the
in Lewis v.
constitutional
reject
supra,
improper
urge
that case
the court to
They
many
it.
call
and the
others which are
accord with
Mississippi
attention
the fact that
court’s
Arizona
the
provisions
own, which
identical to our
eminent domain
have
prepayment
provisions
require
when
held not to
have been
corporation.
municipal
condemnor is a state or a
the
Superior
Bugbee
420
38, 267 Pac.
Court,
v.
34 Ariz.
In
by
upheld
(1928),
eminent
relators,
an
cited
the
the court
required
deposit in
which,
ours,
the
statute
unlike
domain
the
the amount of
estimated
court of twice
accepted
possession could be taken. The court
court before
argument
not intended
re-
the constitution was
that
by county.
support
quire prepayment
conclusion,
a
In
of its
County Brock,
37
. in the brief of Highway Buchanan, Comm. v. curiae, is State amicus appeal This an 157, 165 Miss. So. judgment department highway from a condemnation contesting propriety appellant of the amount suit, the Pending appeal, jury. awarded appellant begun had on condemned construction owner-respondent appeal land, and the moved to dismiss the party accept not the beneficial under rule that judgment appeal part part of a from the unfavorable decision, the motion, to him. a 3-3 court denied holding Mississippi that, under the constitution and the applicable statute, the state was entitled to take making payment, but not before the amount before by jury. had been determined Thus it will Mississippi sup- seen case cited the relator argument part only, ports urges his inasmuch as he exempt that our own constitution should be construed to requirement prepayment from the the statе submitting jury, also from the but before question compen- taken, land Furthermore, expressly sation due. court in that case *7 recognized ques- that the constitution and the statute literally, required prepayment, if read obliged tion, but felt holding an earlier to follow decision that the “intent” of the payment constitution was satisfied was “insured.” We agree pay” payment.” do not that “to means “to insure Re- ferring Mississippi to the earlier court remarked: thereupon simply
“And the court followed a maxim of legal construction as as old of the boоks the law that when, that, and to the extent the reasons of or for a rule particular disappear regards legal a situation, the rule disappears applicable to that extent also to that situa- legis, ipsa (Italics ours.) tion. Cessante ratione cessat lex.” dispute propriety we do While not of the maxim when applied to the common-law rules established the courts, applied when to the constitution is a novel doctrine of interpretation adopt. which this court is reluctant to Mississippi strongly
The court case was influenced public policy pressed upon are considerations which say §I, 16, in the case at But to that Art. us bar. amendment deny right 9, was intended to state to take making judicially a determined before overruling long of a would necessitate the result Furthermore, line of well-reasoned cases. would language provision. express a distortion of properly change desires can be achieved relator through an amendment to the constitution. acquire pos- seq. permits et the state to RCW 8.04.010 payment upon of its just into сourt of the amount last session jury provides determination of com- offer, and for a pensation date, at the election of owner. later payment Although assured, is in most eventual instances “just right denied his have com- owner is judicially prop- pensation” determined and before his erty .taken. is §I, 16, under Art. amendment that, conclude
We constitution, a entitled the-state 9 of just compensation, pay- judicial determination ato posses- deprive the state can him thereof, before ment power eminent domain. This includes under sion 8.04.090, unless in- trial waived. RCW rights, is unconstitu- as it denies the owner these asmuch (cid:127) tional. compel' lie auditor
Mandamus will not
under a statute that
unconstitutional.
issue warrant
Clausen,
rel. Davis-Smith Co. v.
See State ex
156,
Hamley, C. Hill, Don- Schwellenbach, JJ., concur. Weaver, worth, result)—Our (concurring legisla- J. Finley, procedure relative to ture has the condemna- established *8 rights acquisition property way of tion by provides purposes state, the considerable inadequate play of fair somewhat standards or due but property safeguards legisla- process for the owner. provides requires posses- that, if the state immediate tion necessity (not appealed from), after an order sion attorney general, certify action, the condemnation shall possession superior requirement of immediate indicating property by court, sum offered for the continuing binding by tender the state. He by auditor, the state then to be issued causes warrant pay payable in a sum sufficient to court, to the clerk of the by cashed warrant is the amount offered state. registry paid The court of the cоurt. the clerk and into the judg- pay any final amount of orders the state to the full property owner ment thereafter awarded to permits possession to be taken further, order, immediate property Thereafter, owner state. money paid preju- court, time withdraw the into judgment dice as to the of a final in the matter. amount (See 8.04.090.) RCW statutes,
Under the entitled jury, demand a trial or determine the final amount damaged. If the court or award inis excess of the pay tendered, the state is bound such excess with Finally, charged
interest.
costs
thе action are
to and
(See
paid by
8.04.092.)
the state.
RCW
comparable statutory procedure
A
ap-
somewhat
supreme
proved
Bugbee
court of
Arizona
v. Su-
perior
significant
Court,
38,
34 Ariz.
The matter of does not seem question confronting to me to have been basic the court early cases Brown v. Seattle, 5 35, Wash. 31 Pac. 313, Seattle, 741, Lewis Pac. Peterson v. Smith, 6 Wash. Pac. 163, 32 1050,State ex rel. Smith v. Su perior Court, 26 Wash. 66 Pac. *9 (1) supra, questions case,
In the Brown the were whether сompensation property a entitled to for dam- owner was resulting public improvément, ages property to his from a actually part property by no the when of his was city, (2) relief of such whether for dam- should be a common-law cause action supra, question ages. was case, In the Lewis basic (from damages or could made whether a deduction awarded) accruing special as a benefits public improvements. case, In the Peterson result of supra, question basic was the amount of com- whether by apрraisers, provided pensatipn could be fixed road jury, specified statute, in the a state rather than supra, question the Smith state constitution. utility Company, public Electric was whether Seattle government), (obviously not a of state could subdivision post payment of for the to be awarded a bond subsequently. foregoing questions
Except case, the were in the Lewis property owners In so in favor of the involved. decided early doing, indicated, in lan- decisions of the court sweeping, guage unquestionably that a that is broad money neсessary protection prepayment was prepayment concerned, owners that such required However, much, the state constitution. was significant language dicta, and to me the all, of this (1) sweeping broad, questions lan- now are whether early guage cases, in the above-mentioned relative used actually prepayment, essential the decisions therein (2) sweeping such broad and lan- reached, whether guage if at time been used that would have legislature pro- procedure had been established protection, play, viding standards fair reasonable safeguards process owners connec- due is, sovereign eminent exercise of tion with government. and its subdivisions of the state domain ' type, legislation comparable the latter-mentioned If Bughee case, existed, it is had that involved my judgment, strongly convinced, am best and I early Washington probably could, cases *10 questions in the decided basic involved would, have the being compelled to the manner, same but to advert sweeping language broad, with reference to the matter of рrepayment compensation damages. of or Lewis, case,
In the the said that constitutional language, municipal,” clearly “other than an ex- creates ception municipal corporations, in of the favor relative to application exception §I,Art. But of of the effect restricted the matter of of deduction benefits from the compensation property of awarded to I above, owners. mentioned that in Lewis As believe question case the of concern basic to the was whether muniсipal exception corporations permitted as to latter from to deduct a condemnation award the of value resulting public benefits to a owner’s land from improvements. argument In the Lewis ad- was exception vanced to the court that the pal corporations relative munici- (a) apply prepayment could either to of compensation damages, (b) or to benefits, deduction of urged by but not It to both matters. was counsel language owner that the constitutional made sense applied prepayment compen- to the matter of of damages. suggested interpre- words, sation or In other supported tation owner’s basic contention the case that deduction of benefits could made, not be exception municipal and that was no there in favor of cor- porations Apparently, matter benefits. the court accepted argument exemption that as to corporations apply could to one or the other, but not to (b) (a) prepayment both deduction of benefits, and, process, exemption only applied in the concluded argument offering It seems me to the latter. accep- choice of or the two alternatives, one other and its purely tance fortuitous and somewhat germane, ques- in so far unfortunate, incidental, prepayment tion of was concerned. referring prepay- language words, to the matter other ment dicta. language §I, 16, of our state con- contained Art. necessarily
stitution, as revised amendment does not interpreted re- in the manner which to be restricted hаve required by spondent state auditor contends is statements cases, and Peterson Brown, Lewis, Smith this court acquisition supra. In connection with a condemnation (as distinguished right-of-way purposes property for municipal,” phrase, purposes), “other than from complete regarded full and should, I as a can, and think require- municipal corporations exemption from the two (amendment 9) constitution, I, of Art. ments possession, (1) he advance that full flowing (2) from contem- that the value of benefits *11 may public improvements plated from tоtal not be deducted tak- entitled for the to a land owner is Bughee Superior damage property. ing Court, v. to his or supra; County 95; 98 So. Johnson, Miss. Hinds Highway 157, 165 Buchanan, Comm. v. 175 Miss. State my respect are in indicated, views con- In the So. majority. considera- However, other of the flict those with result reached the ma- me concur in the cause tions jority. constitution, I, 3, of the state I refer to Art. person requirements It reads: “No inherent therein. liberty, property, due deprived life, shall be process of law.” existing eminent domain
Respondent contends adequate process provide due reasonable or not do statutes emphasis property is safeguards Considerable for owners. property owners upon of reasonable notice placed the lack “granting entry order to the state prior property possession of the de- and use immediate necessity.” Al- RCW 8.04.090. order of in the scribed though ten-day prop- apparently notice to overlooks entry necessity of an order of in the erty involved owners might considering circumstances, be too short (which, nоtice), adequate much said there is to be period to constitute property notice to a owner reasonable as to prior property, his of his ouster there- from, the state. my opinion,
However, in there are more serious due process existing legislation. defects in the The amount of consequently, paid the state warrant, and, cash registry into court, is determined the amount offer made state of the con- demnee. The amount of the is state’s offer not determined judicially, probable or after the of еvidence as to property, Bugbee value of the in the as case. The amount of the offer is determined an officialor officialsof the execu- department. may may tive The amount of the offer not probable might some bear reasonable relation to value. It substantially judgment be less than the amount a final proceeding. requirement, the condemnation There nois Bugbee probable in the that double the amount of the paid security be value into court cash Although, existing legislation, equal owner. under the cash to the offer of the state into (or security
has no other than the credit of the state municipal corporation, credit of some other as the case be) difference between the amount of the judgment offer and state’s the amount of the final certainly proceedings. hoped eminent domain It good that the credit and faith of the are and will be in long good ago future, condition in the but not too the credit government of the state and other subdivisions of subject always fluctuation, to some and funds avail- were *12 discharge obligations. of solemn able my judgment, significantly the defects mentioned existing legislation distinguish from that involved in our legislation Bugbee case. These defects render our invalid constitution), (Art. strictly constitutionally upon 3, state I, acceptable process safeguards ground of a lack due proceedings, in eminent domain where the owners right- possesison seeking immediate pro- of-way purposes. in the eminent domain defects appropriate leg- cedure, them, as I corrected see amendment. islation, of constitutional I On basis of the reasons herein, have indicated I concur result reached majority writ must be denied. February En Banc.
[No. 1955.] 32856. W. Respondent, v. George Miller, Tietz Construction al.,
Company et Appellants.1 1Reported (2d) in 279 P.