State Ex Rel. Eastvold v. Yelle

279 P.2d 645, 46 Wash. 2d 166, 1955 Wash. LEXIS 453

• Court: Washington Supreme Court
• Decided: February 8, 1955
• Docket: 33198
• Status: Published

Opinions

Rosellini, J.

The attorney general filed a petition in this court praying for an alternative writ of mandate directed to the state auditor, commanding him forthwith to issue a warrant to the state highway department in the amount of the final offer made by the department to the defendants in a condemnation proceeding, in accordance with the provisions of RCW 8.04.090 [cf. Rem. Rev. Stat., § 894], or show cause why he should not be directed and compelled to do so. In his petition, the attorney general alleged that an order of necessity had been issued in the condemnation proceeding, that' no review was taken therefrom, and that there had been filed with the clerk of the court wherein the action was pending a certificate of the state’s requirement of immediate possession and use. He further alleged that the auditor refused to issue the warrant necessary for the state to secure an order of immediate possession and use, thereby jeopardizing progress of the highway program of this state. Prospective damage to the state if the auditor refuses to issue such warrants in the future was also alleged. Based on this petition, an alternative writ was issued.

In his return, the auditor set up as the basis for his refusal to issue the warrant the invalidity of RCW 8.04.090.

The case presents the question: Can the state take possession of private property for public use without first making just compensation, the amount of which has been determined by a jury unless waived?

The state constitution, Art. I, § 16, amendment 9, provides:

“ . . . No private property shall be taken or damaged for public or private use without just compensation having been first made, or paid into court for the owner, and no right-of-way shall be appropriated to the use of any corporation other than municipal until full compensation therefor be first made in money, or ascertained and paid into court for the owner, irrespective of any benefit from any improvement proposed by such corporation, which compensation shall be ascertained by a jury, unless a jury be waived, as in other civil cases in courts of record, in the manner prescribed by law. . . . ”

RCW 8.04.010 et seq., under which relator demands that respondent issue a warrant, pertains to eminent domain by the state. RCW 8.04.090 reads:

“In case the state shall require immediate possession and use of the property sought to be condemned, and an order of necessity shall have been granted, and no review has been taken therefrom, the attorney general shall, before an order of immediate possession and use shall be made, file with the clerk of the court wherein the action is pending, a certificate of the state’s requirement of immediate possession and use of the land, which shall state the amount of money offered to the respondents and shall further state that such offer constitutes a continuing tender of such amount. The attorney general shall file a copy of the certificate with the state auditor, who forthwith shall issue and deliver to him a warrant payable to the order of the clerk of the court wherein the action is pending in a sum sufficient to pay the amount offered, which shall forthwith be paid into the registry of the court. The court without further notice to respondent shall enter an order granting to the state the immediate possession and use of the property described in the order of necessity, which order shall bind the petitioner to pay the full amount of any final judgment of compensation and damages which may thereafter be awarded for the taking and appropriation of the lands, real estate, premises, or other property described in the petition and for the injury, if any, to the remainder of the lands, real estate, premises, or other property from which they are to be taken by reason of such taking and appropriation, after offsetting against any and all such compensation and damages the special benefits, if any, accruing to such remainder by reason of the appropriation and use by the state of the lands, real estate, premises, or other property described in the petition. The moneys paid into court may at any time after entry of the order of immediate possession, be withdrawn by respondents, by order of the court, as their interests shall appear.”

The power of eminent domain is inherent in sovereignty and does not depend for its existence on a specific grant in the constitution. The provisions found in a state constitution do not by implication grant the power to the government of a state, but limit a power which otherwise would be without limit. State ex rel. Eastvold v. Superior Court, 44 Wn. (2d) 607, 609, 269 P. (2d) 560 (1954).

It becomes necessary, therefore, to determine to what extent the language of Art. 1, § 16, amendment 9, limits the inherent power of this state in eminent domain.

Shortly after the constitution was ratified, this court extensively analyzed the quoted provision in Lewis v. Seattle, 5 Wash. 741, 32 Pac. 794 (1893), wherein an owner of land brought suit .to recover compensation for land taken for street purposes. The owner argued that municipal corporations are not entitled to offset benefits to land in determining the amount of compensation due. The court said:

“It is apparent that the exception relating to municipal corporations contained in the second clause must either apply to the rule of damages or it must have the effect of exempting such corporations from paying in advance. Appellant contends that it should apply to the rule relating to the ascertainment of damages, and argues that the decision rendered in Brown v. Seattle, [5 Wash. 35, 31 Pac. 313] (1893), in effect decides that the city may deduct benefits, and that it should be permitted to do so under the weight of the authorities, there being no legislation on the subject. In that case the court held that damages, which would result to adjoining property by the grading of a street, must be paid for in advance. There was no attempt to discriminate between the appropriation of a right-of-way and a taking or damaging for any other municipal purpose in relation to the right to prepayment, nor can one be drawn from the authorities, for the appropriation of a right-of-way for a street has uniformly been recognized as a taking by the courts of the country regardless of where the fee remained.”

And, in further answer to the owner’s argument' that it was not the intent of the framers to allow municipal corporations to offset benefits, but rather to exempt them from the necessity of prepayment, substantially the interpretation urged by the relator in the case at bar, the court said:

“But it is apparent that to give this exception the effect of exempting municipal corporations from making compensation at or before the time of the appropriation, it must either override the first clause, prescribing the time of payment, which purports to lay down an absolute rule and contains no exception, or a distinction must be drawn between an appropriation of a right-of-way and a taking for any other municipal purpose. The first clause, standing by itself, requires payment to be first made where property is taken or damaged by any corporation for any purpose.

“We know of no case holding that an appropriation of land for a street is not a taking within the meaning of such a provision.” (Italics ours.)

The court pointed out further ambiguities which would arise if the construction urged by the owner were adopted, and concluded:

“By construing this constitutional provision as requiring payment to be first made in all cases, and giving the second clause the effect of laying down a rule of damages as to the appropriation of,a right-of-way by corporations other than municipal, all conflict between the two clauses is avoided, and full force is given to each and every part. Such is the best sustained construction it can receive.”

The interpretation placed upon the constitutional provision in the Lewis case has never been rejected or criticized by this court. The eminent domain statutes now provide for the offsetting of benefits by the state and cities. (See RCW 8.04.080, 8.12.190.)

The right of an owner to have his property evaluated by a jury and compensation paid to him before it is taken has been many times affirmed. It was so recognized in Peterson v. Smith, 6 Wash. 163, 32 Pac. 1050 (1893), wherein a statute authorizing the ascertainment of damages by county road viewers was .held unconstitutional; and in Askam v. King County, 9 Wash. 1, 36 Pac. 1097 (1894), the court in that case holding invalid a drainage law which failed to provide for the proper determination and payment of damages prior to the taking. An eminent domain statute which contained no provision for personal service of notice nor for assessment of damages by a jury was declared invalid in In re Smith’s Petition, 9 Wash. 85, 37 Pac. 311, 494 (1894).

The Peterson and Askam decisions were reaffirmed in Snohomish County v. Hayward, 11 Wash. 429, 39 Pac. 652 (1895), and in Seanor v. Board of County Com’rs, 13 Wash. 48, 42 Pac. 552 (1895). In the latter case it was argued, as it is in this case, that to enforce the provision literally against the state would cause great inconvenience to the public. .The court answered this argument in these words:

“While courts should always hesitate to pronounce a law unconstitutional which is manifestly enacted for the best interests of the country, yet it is their bounden duty to see that the provisions of the constitution are maintained inviolate, and that the right of the citizen to implicitly rely upon its plain guaranties shall not be destroyed by construction.”

Among the many other cases reasserting these principles are Hansen v. Hammer, 15 Wash. 315, 46 Pac. 332 (1896); Adams County v. Dobschlag, 19 Wash. 356, 53 Pac. 339 (1898); State ex rel. Smith v. Superior Court, 26 Wash. 278, 66 Pac. 385 (1901); Fry v. O’Leary, 141 Wash. 465, 252 Pac. 111, 49 A. L. R. 1249 (1927); McPherson Brothers Co. v. Douglas County, 150 Wash. 221, 272 Pac. 983 (1928); Little v. King County, 159 Wash. 326, 293 Pac. 438 (1930); State v. Superior Court, 167 Wash. 334, 9 P. (2d) 70 (1932); and State ex rel. O’Brien v. Brinker, 169 Wash. 79, 13 P. (2d) 63 (1932).

In State ex rel. Smith v. Superior Court, supra, this court held that the giving of a bond by the appropriator does not satisfy the requirement of prepayment. In McPherson Brothers Co. v. Douglas County, supra, we said:

“If the filing of a petition for condemnation justifies the authority seeking to exercise the right of eminent domain in anticipating the consummation of the procedure provided by law for the exercise of the extraordinary right which it invokes, and authorizes it to enter upon the land and construct the improvement which it desires to make, against the will of the owner, and prior to the payment of just compensation to him, as provided by the constitution of our state, the manifest purpose of the constitutional provision, above quoted, would be entirely subverted and the fundamental rights of the citizen violated. The convenience of the public is indeed a matter of importance, but the rights of the individual citizen, as guaranteed by the constitution of our state, are of even greater importance, and the speedy use of a convenient way of access to a bridge is achieved at too dear a price if gained at the expense of the fundamental rights of any citizen.”

In RCW 8.04.092, there is clearly an admission by the legislature that the amount paid into court is not necessarily just compensation, inasmuch as the property owner may elect to have a jury or court determine this question after the state has taken possession:

“The amount paid into court shall constitute just compensation paid for the taking of such property: Provided, That respondents may, in the same action, request a trial by jury or by the court for the purpose of assessing the amount of compensation to be made and the amount of damages arising from the taking. . . . ”

In support of his position, relator cites cases interpreting the United States constitution and various state constitutions which do not expressly provide that payment shall be “first made.” We have examined the cases, but in view of this significant difference, we cannot consider them as authority for the interpretation of our constitution.

The relator and amicus curiae insist that the construction placed upon the constitutional provision in Lewis v. Seattle, supra, was improper and urge the court to reject that case and the many others which are in accord with it. They call the court’s attention to the fact that Arizona and Mississippi have eminent domain provisions identical to our own, which provisions have been held not to require prepayment when the condemnor is a state or a municipal corporation.

In Bugbee v. Superior Court, 34 Ariz. 38, 267 Pac. 420 (1928), cited by the relators, the court upheld an eminent domain statute which, unlike ours, required the deposit in court of twice the amount of damages estimated by the court before possession could be taken. The court accepted the argument that the constitution was not intended to require prepayment by a county. In support of its conclusion, it cited Lincoln County v. Brock, 37 Wash. 14, 79 Pac. 477 (1905), which merely holds that a county is a municipal corporation and entitled to offset benefits as provided by the constitution. In this respect, Lincoln County v. Brock is entirely consistent with Lewis v. Seattle, supra, and affords no basis for holding that a municipal corporation is exempt from the necessity of making payment before taking possession.

. The Mississippi opinion, quoted at length in the brief of amicus curiae, is State Highway Comm. v. Buchanan, 175 Miss. 157, 165 So. 795 (1936). This was an appeal by the highway department from a judgment in a condemnation suit, the appellant contesting the propriety of the amount of compensation awarded by the jury. Pending the appeal, the appellant had begun construction on the condemned land, and the owner-respondent moved to dismiss the appeal under the rule that a party may not accept the beneficial part of a judgment and appeal from the part unfavorable to him. In a 3-3 decision, the court denied the motion, holding that, under the Mississippi constitution and the applicable statute, the state was entitled to take possession before making payment, but not before the amount of just compensation had been determined by a jury. Thus it will be seen that the Mississippi case cited by the relator supports his argument in part only, inasmuch as he urges that our own constitution should be construed to exempt the state not only from the requirement of prepayment but also from the necessity of submitting to the jury, before the land is taken, the question of the amount of compensation due. Furthermore, the court in that case expressly recognized that the constitution and the statute in question, if read literally, required prepayment, but felt obliged to follow an earlier decision holding that the “intent” of the constitution was satisfied if payment was “insured.” We do not agree that “to pay” means “to insure payment.” Referring to the earlier case, the Mississippi court remarked:

“And the court thereupon simply followed a maxim of legal construction as old as any of the books of the law that when, and to the extent that, the reasons of or for a rule disappear as regards a particular legal situation, the rule to that extent also disappears as applicable to that situation. Cessante ratione legis, cessat ipsa lex.” (Italics ours.)

While we do not dispute the propriety of the maxim when applied to the common-law rules established by the courts, when applied to the constitution it is a novel doctrine of interpretation which this court is reluctant to adopt.

The court in the Mississippi case was strongly influenced by the public policy considerations which are pressed upon us in the case at bar. But to say that Art. I, § 16, amendment 9, was not intended to deny to the state the right to take possession before making a judicially determined just compensation would necessitate the overruling of a long line of well-reasoned cases. Furthermore, the result would be a distortion of the express language of the provision. The change which the relator desires can be properly achieved only through an amendment to the constitution.

RCW 8.04.010 et seq. permits the state to acquire possession upon payment into court of the amount of its last offer, and provides for a jury determination of just compensation at a later date, at the election of the owner. Although in most instances eventual payment is assured, the property owner is denied his right to have “just compensation” judicially determined and paid before his property is .taken.

We conclude that, under Art. I, § 16, amendment 9 of the-state constitution, a property owner is entitled to a judicial determination of just compensation, and payment thereof, before the state can deprive him of possession under the power of eminent domain. This includes the right to a jury trial unless waived. RCW 8.04.090, inasmuch as it denies the owner these rights, is unconstitutional. •

Mandamus will not lie to compel' the auditor to issue a warrant under a statute that is unconstitutional. See State ex rel. Davis-Smith Co. v. Clausen, 65 Wash. 156, 117 Pac. 1101 (1911).

The peremptory writ is denied.

Hamley, C. J., Mallery, Schwellenbach, Hill, Don-worth, and Weaver, JJ., concur.