State ex rel. Dawes v. Washington State Highway Commission

• Decision Date: 03 October 1963
• Docket Number: No. 36892,36892
• Citation: 385 P.2d 376,63 Wn.2d 34
• Court: Washington Supreme Court
• Parties: The STATE of Washington ex rel. Roy A. DAWES and Ruth Dawes, his wife, Appellants, v. WASHINGTON STATE HIGHWAY COMMISSION, Ernest A. Cowell, Chairman, Ernest J. Ketcham, Robert L. Mikalson, George D. Zahn, and James M. Blair, Jr., members thereof, Respondents.

Page 34

63 Wn.2d 34

385 P.2d 376

The STATE of Washington ex rel. Roy A. DAWES and Ruth Dawes, his wife, Appellants, v. WASHINGTON STATE HIGHWAY COMMISSION, Ernest A. Cowell,

Chairman, Ernest J. Ketcham, Robert L. Mikalson,

George D. Zahn, and James M. Blair, Jr.,

members thereof, Respondents.

No. 36892.

Supreme Court of Washington, Department 2.

Oct. 3, 1963.

Eisenhower & Carlson, Paul Sinnitt, Tacoma, for appellants.

John J. O'Connell, Atty. Gen., Delbert W. Johnson, Asst. Atty. Gen., Olympia, for respondents.

WEAVER, Judge.

In State ex rel. Sternoff v. Superior Court, 52 Wash.2d 282, 298, 325 P.2d 300 (1958), we held that the state could not condemn the right of access to property abutting an existing street or road for the purpose of establishing a limited access facility without first invoking, as a condition precedent, the statutory procedure detailed by the legislature in RCW 47.52.072 through RCW 47.52.075.

This appeal presents conflicting theories of interpretation, meaning, and effect of certain portions of these statutes. Insofar as applicable to the instant case, the statutes are set forth in the margin.

In short, RCW 47.52.072 ¹ provides that an existing street or road cannot be established as a limited access facility until the abutting property owners have been given notice of the proposar and given an opportunity to be heard.

RCW 47.52.073 ² requires the highway authority to introduce at the hearing a summary of the proposal for the establishment of the limited access facility and '* * * any evidence that may be proper as to the public convenience and necessity for such facility * * *' An abutting property owner has the right to introduce evidence and statements or counterproposal bearing upon the reasonableness of the proposal.

RCW 47.52.074 ³ requires the highway authority to consider the evidence and make specific findings.

'* * * as to whether such proposal to establish such existing * * * street * * * as a limited access facility is required by the public convenience and necessity.' (Italics ours.)

The authority may reject, modify, or adopt the proposal in whole or in part. The abutting property owner must be mailed a copy of the findings and order.

'Such determination shall become final within thirty days * * * as to all the abutting property affected unless a review is taken * * * In case of an appeal, the order shall be final as to the property of all abutting owners not appealing.' RCW 47.52.074. (Italics ours.)

RCW 47.52.075 ⁴ provides that an abutting property owner appearing at the hearing may petition the Thurston County superior court for a review of the findings or order affecting property owned by him; and may appeal from the superior court to the supreme court. The manner of review is defined in footnote 4 and will be discussed later in this opinion.

Linden Drive in the city of Sumner, Pierce County, extends north and south. It is the present route of Primary State Highway No. 5. The Washington State Highway Commission, desiring to relocate P.S.H. No. 5, instructed the Director of Highways to prepare a plan for the establishment of a limited access highway. The plans as proposed establish a freeway extending east to west and passing under Linden Drive at substantially right angles to it.

Appellants are the owners of 1.95 acres of valuable income property located in the northwest quadrant formed by the overpass intersection of Linden Drive and the proposed freeway. The property abuts Linden Drive for about 225 feet.

In general, the plans place appellants' property within the loop of an off-ramp that leaves the freeway, passes under Linden Drive, curves north, and leads into Linden Drive on a tangent so that west bound traffic may leave the freeway on the off-ramp, traverse the loop, and proceed south on Linden Drive past appellants' property.

The ramp takes only a small portion of two corners of the property, but the proposed plans deprive appellants of all their right of access to Linden Drive.

After two hearings, the Highway Commission entered its order in which it found

'* * * in the case of each abutting ownership that the adoption of the plan for making said highway a limited access facility * * * is required by the public convenience and necessity.' (Italics ours.)

The Commission instructed the Director of Highways

'* * * to take the necessary steps to acquire the access rights in accordance with the plan * * * together with such property as may be necessary to make said improvement, as provided by the laws of the State of Washington.'

On appellants' petition to review (RCW 47.52.075, note 4, supra), the Superior Court for Thurston County affirmed the order of the Highway Commission, hence this appeal.

Appellants contend the Limited Access Facilities Act (RCW 47.52) is unconstitutional. They urge: the statutory finality of the Highway Commission's determination that 'public convenience and necessity' require the elimination of their right of access to an existing street (RCW 47.52.074) conflicts with Art. 1, § 16 (amendment 9) of the state constitution, ⁵ for it forecloses them from contesting the issuance of a certificate of public use and necessity in a subsequent condemnation action by the state.

In short, appellants argue in their brief

'* * * that the limited access hearing is an attempt by the legislature to bypass the constitutional right of the owner to have a judicial determination of the question of the necessity of his property being taken for a public purpose.'

Counsel for respondents, on the other hand, contend that the limited access hearing, the commission's determinations, the approval of the highway director's plans for the proposed limited access facility, and the review by the Thurston County Superior Court, simply present a problem of 'administrative procedure and highway planning', that the proceeding is not an alternate or substitute for the constitutional requirement that public use and necessity is a judicial question to be determined by the court should a subsequent action of condemnation be commenced in the county where the property is situated.

If a statute is subject to two interpretations, one rendering it constitutional and the other unconstitutional, the legislature will be presumed to have intended a meaning consistent with the constitutionality of its enactment. Household Finance Corp. v. State, 40 Wash.2d 451, 457, 244 P.2d 260 (1952).

RCW 47.52.072 through RCW 47.52.075 appear to have three objectives: (1) they require the highway director to prepare and present a plan for the limited access facility; (2) they give an abutting property owner an opportunity to be heard and present an alternate plan; (3) they give the highway commission an opportunity to correct or modify the proposed plan before its adoption. When these objectives have been accomplished, the statutes have served their purpose, and the condition precedent necessary before the state may maintain an action of eminent domain has been established. State ex rel. Sternoff v. Superior Court, 52 Wash.2d 282, 325 P.2d 300 (1958). (The question of the 'finality' of the Commission's findings upon the highway director's plans is not before us on this appeal. See State v. Besselman, 55 Wash.2d 524, 348 P.2d 406 (1960).)

Were it accepted fact that the administrative determination, and its judicial approval, deprived appellants of any constitutional rights in a subsequent action by the state to acquire the rights of abutting property owners by eminent domain, the statutes would conflict directly with the constitutional provision of Art. 1, § 16 (amendment 9) of the constitution. (Note 5, supra.) We do not accept this interpretation.

The state has simply fulfilled the statutory condition precedent to maintain an action of eminent domain; it has gained no advantage over appellants. It must prove its right to a certificate of public use and necessity, not by reliance upon the findings of the highway commission, but as provided by law. Appellants have the right to defend and protest the issuance of the certificate in all matters previously available to them. Whether the contemplated use be really public is still a judicial question and must be determined '* * * without regard to any legislative assertion that the use is public * * *.' Art. 1, § 16 (amendment 9), Washington Constitution.

Appellants' first assignment of error is without merit.

RCW 47.52.075 (footnote 4, supra) provides that judicial review of the commission's findings shall be considered by the courts in the manner specified in the public service commission law of this state. RCW 80.04.170 provides for judicial review of orders of the public service commission by the superior court; RCW 80.04.190, for review in the supreme court.

In Herrett Trucking Co. v. Washington Public Service Commission, 58 Wash.2d 542, 545, 364 P.2d 505 (1961), we held that the Administrative Procedure Act (RCW) 34), except RCW 34.04.040, applied to the public service commission '* * * as well as to all other agencies not specifically excluded. * * *'

The...