State ex rel. Eastvold v. Yelle

• Decision Date: 08 February 1955
• Docket Number: No. 33198,33198
• Citation: 279 P.2d 645,46 Wn.2d 166
• Court: Washington Supreme Court
• Parties: The STATE of Washington, on the relation of Don EASTVOLD, as Attorney General, Plaintiff, v. Cliff YELLE, as State Auditor, Respondent.

Page 166

46 Wn.2d 166

279 P.2d 645

The STATE of Washington, on the relation of Don EASTVOLD, as Attorney General, Plaintiff, v. Cliff YELLE, as State Auditor, Respondent.

No. 33198.

Supreme Court of Washington, En Banc.

Feb. 8, 1955.

Don Eastvold, Atty. Gen., J. Arnold Cobley, Olympia, for plaintiff.

Paul E. Sinnitt, Olympia, for auditor-respondent.

Harold S. Shefelman, Spec. Asst. Atty. Gen., amicus curiae.

ROSELLINI, Justice.

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 provement 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. East-vold v. Superior Court for Skagit County, 1954, 44 Wash.2d 607, 609, 269 P.2d 560.

It becomes necessary, therefore, to determine to what extent the language of Art. I, § 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. City of Seattle, 1893, 5 Wash. 741, 32 P. 794, 797, 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 ascertinment of damages, and argues that the decision rendered in Brown v. City of Seattle [1893, 5 Wash. 35, 31 P. 313, 32 P. 214, 18 L.R.A. 161], 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.' (Italics ours.)

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. (Italics ours.)

'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 * * *.'

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 betwen 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, 1893, 6 Wash. 163, 32 P. 1050, wherein a statute authorizing the ascertainment of damages by county road viewers was held unconstitutional; and in Askam v. King County, 1894, 9 Wash. 1, 36 P. 1097, 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, 1894, 9 Wash. 85, 37 P. 311, 37 P. 494.

The Peterson and Askam decisions were reaffirmed in Snohomish County v. Hayward, 1895, 11 Wash. 429, 39 P. 652, and in Seanor v. County Commissioners, 1895, 13 Wash. 48, 42 P. 552, 553. 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...