City of Des Moines v. Hemenway, 39262

• Decision Date: 01 February 1968
• Docket Number: No. 39262,39262
• Citation: 437 P.2d 171,73 Wn.2d 130
• Parties: The CITY OF DES MOINES, Petitioner, v. Patricia A. HEMENWAY et al., Respondents.
• Court: Washington Supreme Court

Page 130

73 Wn.2d 130

437 P.2d 171

The CITY OF DES MOINES, Petitioner, v. Patricia A. HEMENWAY et al., Respondents.

No. 39262.

Supreme Court of Washington, En Banc.

Feb. 1, 1968.

Payne & Verzani, Robert J. Verzani, Federal Way, Haugan, Shellan & Pain, Renton, for petitioner.

Short, Cressman & Cable, Kahin, Horswill, Keller, Rohrback, Waldo & Moren, Robert Keller, Thor Ulvestad, Seattle, for respondents.

Robert W. Graham and Ronald T. Schaps, Seattle, amicus curiae.

FINLEY, Chief Justice.

This case is here on a writ of certiorari, sought by petitioner, the city of Des Moines, after the King County Superior Court refused to enter an order of public use and necessity in a condemnation proceeding. The city is seeking to condemn tidelands owned by respondents for the purpose of constructing, operating, and maintaining a marina, i.e., moorage and other facilities for small boats.

Petitioner is a small, third-class city located on Puget Sound between Seattle and Tacoma. In 1965, petitioner retained the firm of Reid Middleton & Associates, consulting engineers and land surveyors, to develop a comprehensive plan for a marina facility in the city. The firm conducted a thorough study of the area, and submitted a report to petitioner. Pursuant to this report and three surveys conducted by a local chapter of the Junior Chamber of Commerce, petitioner adopted an ordinance authorizing condemnation of respondents' tidelands for a marina. Following adoption of the ordinance, petitioner commenced two condemnation actions against respondents in superior court. These actions were consolidated at the time of trial. The trial court found the proposed marina to be too large to be reasonably necessary for residents of the city, either presently or in the discernible future. As a consequence, it found petitioner's actions to be arbitrary and capricious and refused to enter a decree of public use and necessity.

The city of Des Moines covers an area of approximately one square mile. In 1966, its population was 3,518 people. The proposed marina would necessitate condemnation of approximately 80 per cent of the tidelands within the city limits as well as two pieces of property located outside the city limits (only one of which is involved in this action). The marina would be sheltered by a breakwater and would house 885 boats. The need or demand for boat moorages by residents of the city probably would not exceed 10 per cent of the capacity of the proposed marina. The size of the marina allegedly was dictated by economic difficulties in building and operating a smaller marina, and by the results of the study and surveys mentioned earlier which considered the present and prospective boat moorage needs of individuals within a 10-mile radius of the city. Financing of the marina would be through a loan from the Housing and Home Finance Agency, to be repaid from the marina's revenues. It was on the basis of these considerations that the trial court reached a decision adverse to the city's proposed marina development.

Petitioner's four assignments of error and respondents' counter-assertions present three general questions for our determination: (1) Does a third-class city have the power to condemn property for development of a marina; (2) if so, must the property involved be located within the city's corporate limits; and (3) if the answer to the first question is affirmative, was the condemnation proposal in the instant case a proper exercise of third-class city powers, in whole or in part? The questions will be discussed in the order indicated.

I.

Initially, it must be recognized that petitioner has no power to seek to acquire land, regardless of the means, unless the proposed acquisition is for a public use. Wiley v. City of Aberdeen, 123 Wash. 539, 212 P. 1049 (1923). Questions as to whether a proposed acquisition is for a public use are for the judiciary, although a legislative declaration will be accorded great weight. Miller v. City of Tacoma, 61 Wash.2d 374, 378 P.2d 464 (1963). In the instant case, the trial court concluded that acquisition of property for development of a marina is for a public use, and this conclusion is not challenged on appeal. Furthermore, RCW 35.23.455 specifically provides that marinas are among the public improvements which second, third, and fourth-class cities may construct, operate, and maintain. We are convinced that a third-class city has the power to acquire property to establish a marina, and thus pass to the question whether a third-class city may acquire such property through its powers of condemnation.

A municipal corporation's power to condemn is delegated to it by the state legislature. State ex rel. Tacoma School Dist. No. 10 v. Stojack, 53 Wash.2d 55, 330 P.2d 567, 71 A.L.R.2d 1064 (1958). Statutes delegating condemnation powers are to be strictly construed. City of Tacoma v. Welcker, 65 Wash.2d 677, 399 P.2d 330 (1965). Condemnation powers must be delegated in express terms or exist by clear implication. City of Seattle v. State, 54 Wash.2d 139, 338 P.2d 126 (1959); State ex rel. Chesterley v. Superior Court, 19 Wash.2d 791, 144 P.2d 916 (1944). Thus, a careful review of the applicable statutes is necessary.

Two statutes confer eminent domain powers on third-class cities. These are set forth below, italicized in part to highlight their similar statutory organization and pertinence.

RCW 8.12.030 provides in part as follows:

Every city and town and each unclassified city and town within the state of Washington, is hereby Authorized and empowered to condemn land and property * * * for streets, avenues * * * (and other uses), Within the limits of such city, and to Condemn land or property, or to damage the same, Either within or without the limits of such city for public parks, drives and boulevards, hospitals * * * (and other uses), And to condemn land and other property and damage the same for such and For any other public use after just compensation having been first made or paid into court for the owner in the manner prescribed by this chapter. (Italics ours.)

RCW 35.24.310 provides as follows:

Whenever it shall become necessary for the city to take or damage private property for the purpose of establishing, laying out, extending and widening streets And other public highways and places within the city, Or for the purpose of securing rights-of-way for drains, sewers and aqueducts, and for the purpose of widening, straightening or diverting the channels of streams and the improvement of waterfronts, Or any other public purpose, and the city council cannot agree with the owner thereof as to the price to be paid, the city council may proceed to acquire, take or damage the same in the manner provided by chapter 8.12 RCW or by chapter 8.20 RCW. (Italics ours.)

These statutes, using specific language, delegate to third-class cities the power to condemn property for enumerated public uses and purposes. In addition, the statutes, using general language, delegate to third-class cities condemnation powers to acquire property for 'all other' uses and purposes of the same character or nature as those uses and purposes enumerated in the statutes, i.e., Public uses and purposes. Since we have already stated that marinas are public uses, it is clear to us that petitioner in the instant case has the power to condemn property for the purpose of constructing, operating, and maintaining a marina. See State ex rel. Devonshire v. Superior Court, 70 Wash.Dec.2d 606, 424 P.2d 913 (1967).

There are two well-established rules for the interpretation of those statutes which contain both specific enumerations and general provisions. We think these rules support the position of the city of Des Moines. The rules are: (1) A statute should, whenever possible, be interpreted so that no portion of it is superfluous, void, or insignificant, and (2) whenever a statute contains specific enumerations of power followed by words granting general powers, the specific enumerations govern the character or nature of the subject matter to be included within the words granting general powers. E.g., King County Water Dist. No. 68 v. Tax Comm., 58 Wash.2d 282, 362 P.2d 244 (1961); Miller v. City of Pasco, 50 Wash.2d 229, 310 P.2d 863 (1957); Groves v. Meyers, 35 Wash.2d 403, 213 P.2d 483 (1950).

Respondents vigorously assert that the reading of the pertinent statutes mentioned hereinbefore fails to satisfy the second above-mentioned rule of statutory construction, i.e., the Ejusdem generis rule. According to respondents, our decisions not only suggest that general provisions which are preceded by specific enumerations are restricted to provisions of the same nature and character as the specific enumerations, but that words of general import are no more comprehensive than the specific enumerations. In short, respondents appear to be contending that the only words which are of any effect are the specific enumerations. Respondents cite a number of our prior cases in support of this position, but we believe the only case which might be interpreted to supply support for respondents is State v. Sterling Theatres Co., 64 Wash.2d 761, 394 P.2d 226 (1964).

In Sterling, we were asked to construe section 17 of the Consumer Protection Act of 1961, now RCW 19.86.170, in relation to federal antitrust law. Section 17 at that time provided as follows:

Nothing in this act shall apply to actions or transactions otherwise permitted, prohibited or regulated under laws administered by the insurance commissioner of this state, the Washington public service commission, the federal power commission Or any other regulatory body or officer acting under statutory authority of this state or the United States. (Italics ours.)

We concluded that this provision did not exempt the Sterling Theatres Company from the consumer protection laws, even though the United States Attorney General, acting under the Sherman Act, could regulate the...