Daviscourt v. Peistrup

• Decision Date: 24 April 1985
• Docket Number: No. 12788-8-I,12788-8-I
• Citation: 40 Wn.App. 433,698 P.2d 1093
• Parties: . William M. PEISTRUP and Betty G. Peistrup, his wife, and Clarence T. Brannman and Alice L. Brannman, his wife, Appellants. Court of Appeals of Washington, Division 1
• Court: Washington Court of Appeals

Page 433

40 Wn.App. 433

698 P.2d 1093

Karl F. DAVISCOURT and Barbara E. Daviscourt, his wife, Respondents, v. William M. PEISTRUP and Betty G. Peistrup, his wife, and Clarence T. Brannman and Alice L. Brannman, his wife, Appellants.

No. 12788-8-I.

Court of Appeals of Washington,

Division 1.

April 24, 1985.

Rehearing Denied June 4, 1985.

Foster, Pepper & Riviera, David C. Anderson, Kevin T. Helenius, Schweppe, Doolittle, Krug, Tausend & Beezer, P.S., Alfred J. Schweppe, Seattle, for appellants.

Kargianis & Austin, Russell A. Austin, Seattle, for respondents.

SWANSON, Judge.

This is a consolidated appeal by William M. and Betty G. Peistrup (Peistrups) and Clarence T. and Alice L. Brannman (Brannmans) of the superior court judgment denying attorney and expert witness fee awards under RCW 8.25.070(1) to condemnees in a private condemnation proceeding. ¹ We affirm the trial court's judgment.

Respondents Karl F. and Barbara E. Daviscourt (Daviscourts), brought a condemnation action for a private way of necessity over the Peistrups' and Brannmans' properties. In the first phase of the action, the Daviscourts were granted a private way of necessity over the properties; in the second phase, a jury awarded compensation of $2,800 to the Peistrups and $3,700 to the Brannmans for the easement rights granted in the private-way-of-necessity order. The trial court denied the Peistrups and the Brannmans attorney and expert witness fee awards under RCW 8.25.070(1)(b) based upon the court's interpretation that RCW 8.25.070 does not apply to a condemnation for a private way of necessity. ² The trial judge noted that he was not deciding the question under the Washington State Constitution's eminent domain clause, Const. art. 1, § 16 (amend. 9).

The issues are (1) whether RCW 8.25.070 authorizes attorney and expert witness fee awards in a condemnation for a private way of necessity; and (2) if not, whether such awards are nevertheless required in a private condemnation proceeding under the Washington Constitution's eminent domain clause.

In Washington attorney fees may be awarded only where authorized by the parties' private agreement, a statute, or a recognized ground of equity. Mellor v. Chamberlin, 100 Wash.2d 643, 649, 673 P.2d 610 (1983). Here the appellants contend that they are entitled to reasonable attorney and expert witness fees pursuant to former RCW 8.25.070(1)(b), ³ which states:

Award of attorney's fees and witness fees to condemnee--Conditions to award. (1) Except as otherwise provided in subsection (3) of this section, if a trial is held for the fixing of the amount of compensation to be awarded to the owner or party having an interest in the property being condemned, the court shall award the condemnee reasonable attorney's fees and reasonable expert witness fees in the event of any of the following:

* * *

(b) If the judgment awarded as a result of the trial exceeds by ten percent or more the highest written offer in settlement submitted to those condemnees appearing in the action by condemnor at least thirty days prior to commencement of said trial.

It is undisputed that the judgment here exceeded by 10 percent the Daviscourts' highest written settlement offers to the Peistrups and Brannmans so that RCW 8.25.070's condition (b) has been met.

The appellants claim that RCW 8.25.070's language is unambiguous so that resort to statutory construction is unnecessary to find that they are entitled to reasonable attorney and expert witness fees under this provision. Yet in attempting to demonstrate the lack of ambiguity, the appellants themselves rely upon statutory construction, comparing RCW 8.25.070's language with that of the two preceding sections and citing case authority for the proposition that the sequence of statutes concerning the same subject matter should be considered in interpreting a provision. The appellants have thus undermined their own argument.

Further, the statute does not define the terms, "condemnee" and "condemnor," as used in RCW 8.25.070(1) or specify the scope of the provision's applicability. Thus the provision is ambiguous as to whether attorney and expert witness fees may be awarded in a condemnation for a private way of necessity. ⁴ Where the legislative intent is not clear from the statutory language, we may consider the legislative history. Bellevue Fire Fighters v. Bellevue, 100 Wash.2d 748, 751, 675 P.2d 592 (1984), cert. denied, 471 U.S. 1015, 105 S.Ct. 2017, 84 L.Ed.2d ---- (1985).

RCW 8.25.070, as first enacted in 1967, provided for an attorney and expert witness fee award if certain conditions were met where a trial was held to determine the compensation amount and the condemnee offered to stipulate to an order of immediate possession of the subject property. ⁵ RCW 8.25.070 was expressly made applicable to a condemnation for a private way of necessity by section 4 of the same 1967 act, which section was codified as RCW 8.25.900. ⁶

In 1971 RCW 8.25.070 was amended and reenacted as section 3 of Laws of 1971, 1st Ex.Sess., ch. 39, which act was entitled:

AN ACT Relating to the acquisition of property by public agencies; amending section 47.52.050, chapter 13, Laws of 1961 and RCW 47.52.050; and amending section 3, chapter 137, Laws of 1967 ex. sess. and RCW 8.25.070; and adding a new section to chapter 8.25 RCW.

The Washington State Constitution's article 2, section 19 provides: "No bill shall embrace more than one subject, and that shall be expressed in the title." This section has a dual purpose (1) to prevent "logrolling", or pushing legislation through by attaching it to other necessary or desirable legislation, and (2) to assure that the members of the legislature and the public are generally aware of what is contained in proposed new laws.

Flanders v. Morris, 88 Wash.2d 183, 187, 558 P.2d 769 (1977), quoted in Washington Educ. Ass'n v. State, 97 Wash.2d 899, 906, 652 P.2d 1347 (1982).

Here the title of the 1971 act amending and reenacting RCW 8.25.070 referred to the "acquisition of property by public agencies." The act's section 3, which amended and reenacted RCW 8.25.070, authorized an attorney and expert witness fee award in certain circumstances. Under Const. art. 2, § 19, a rational nexus must exist between an act's general subject, as reflected in its title, and its subsections. Scott v. Cascade Structures, 100 Wash.2d 537, 545, 673 P.2d 179 (1983).

We upheld an attorney fee provision in a 1971 act entitled, "Real Property Acquisition--Relocation Assistance for Displaced Persons," finding a rational unity between the act's title and general subject and the provision authorizing an attorney fee award where a court awarded just compensation in an inverse condemnation action. B & W Constr. v. Lacey, 19 Wash.App. 220, 227-29, 577 P.2d 583 (1978). ⁷ Similarly, here a rational unity exists between the act's title and the provision authorizing attorney fees in certain circumstances where a trial is held to determine the just compensation in a condemnation proceeding brought by a public agency. The appellants contend, however, that the attorney fee provision applies not only to public, but to private, condemnations as well.

If the title of a legislative act is general and comprehensive, it will be liberally construed; however, if the title is restrictive, those provisions not within the title will not be given force. Gruen v. State Tax Comm'n, 35 Wash.2d 1, 10, 211 P.2d 651 (1949); State ex rel. Jones v. Charboneau's, 27 Wash.App. 5, 10, 615 P.2d 1321, rev. denied, 94 Wash.2d 1021 (1980).

[A] restrictive title is one where a particular part or branch of a subject is carved out and selected as the subject of the legislation. If the legislature seeks this method, ... the body of the act must be confined to the particular portion of the subject which is expressed in the limited title. The courts cannot enlarge the scope of the title.... The constitution has made the title the conclusive index to the legislative intent as to what shall have operation. It is no answer to say that the title might have been more comprehensive, if, in fact, the legislature has not seen fit to make it so.

(Italics ours.). Gruen, supra 35 Wash.2d at 23, 211 P.2d 651.

In holding unconstitutional a state law enacted through the initiative process, we stated:

A ballot title which refers only to places selling or exhibiting "obscene films" and "obscene publications" when the body of the initiative includes places of prostitution, illegal gambling, fighting and opium smoking does not meet the constitutional requirement that the title express the subject of the bill or initiative.

State ex rel. Jones v. Charboneau's, supra 27 Wash.App. at 9, 615 P.2d 1321. Where an act's restrictive title referred only to "charitable institutions," our Supreme Court held that the act's provisions concerning nonprofit organizations, which were distinctively different from charitable organizations, could not be given force. Swedish Hosp. v. Department of Labor & Indus., 26 Wash.2d 819, 831-32, 176 P.2d 429 (1947). In construing another statute, the court stated that

the title of the 1943 act is a restrictive one, in the sense that it is expressly limited in scope to the protection of employees in factories where machinery is used. This being so, it necessarily follows that any provision of the act which purports to cover nonfactory operations is beyond the scope of the title and hence invalid. Thus the clause relied upon by appellant, "or conducting any operation where machinery is used," being clearly intended to cover operations not included under the term "factory, mill or workshop," must be held void.

Blanco v. Sun Ranches, Inc., 38 Wash.2d 894, 901-02, 234 P.2d 499 (1951).

Here the title of the 1971 act in question is restrictive in expressly limiting the act's scope to the acquisition of property by public agencies. ⁸ Thus if the attorney fee provision codified as RCW 8.25.070 is...