State ex rel. Furey v. Superior Court for Douglas County

• Decision Date: 16 August 1937
• Docket Number: 26756.
• Parties: STATE ex rel. FUREY et al. v. SUPERIOR COURT FOR DOUGLAS COUNTY et al.
• Court: Washington Supreme Court

70 P.2d 1043

191 Wash. 235

STATE ex rel. FUREY et al. v. SUPERIOR COURT FOR DOUGLAS COUNTY et al.

No. 26756.

Supreme Court of Washington

August 16, 1937

Application for writ of certiorari by the State of Washington, on the relation of Frederick H. Furey and R. A. Downing, relators against the Superior Court for Douglas County, C. G. Jeffers judge, to review an order entered in a condemnation action.

Order affirmed.

G. W Hamilton and E. P. Donnelly, both of Olympia, for respondent.

GERAGHTY Justice.

This cause is here for review, on certiorari, of an order entered in an action brought by the state of Washington to condemn what is known as the Brewster bridge across the Columbia river, between Douglas and Okanogan counties. The order adjudged the acquisition of the bridge to be for a public use, necessary to the state, as an integral part of its primary highway system.

After the institution of condemnation actions in the superior courts of Okanogan and Douglas counties, the Okanogan county case was transferred to Douglas county. Subsequently, the two actions thus pending in the superior court of Douglas county were consolidated for trial, and, after hearing, the order adjudicating a public use now on review was entered.

The relators urge two principle contentions in this court: First, the want of legislative authority for the condemnation, and, secondly, the lack of jurisdiction in the superior court to make the order. In the main, the relators predicate their contention that there is a lack of legislative authority for the proceeding upon the language of chapter 54 of the 1937 Session Laws, p. 194, section 1 of which follows:

'There is hereby appropriated out of the motor vehicle fund of the State of Washington for the purchase of the toll bridge across the Columbia River, or the construction of a new bridge at a feasible place near said toll bridge, at Brewster, Washington, on state road No. 10 extension from the vicinity of Brewster to the vicinity of Coulee City in the State of Washington, with the necessary right of way and approaches, not now a part of the primary highway system, by the director of highways under the authority contained in chapter 149, Laws of 1935, the sum of three hundred ten thousand dollars ($310,000.00), or so much thereof as may be necessary.'

Stress is laid on the absence of an express reference to condemnation in the act and the employment of the word 'purchase'; and it is strongly urged that the word implies that the bridge is to be acquired by a process of bargaining and negotiation. But the right of the state to acquire the bridge by condemnation does not rest alone on the language of this statute. It will be observed that the act refers to the authority contained in chapter 149 of the Laws of 1935, p. 474. The material sections of that act follow:

'Section 1. That the department of highways is hereby directed forthwith to make a detailed survey and appraisal of the toll bridge across the Columbia river at Brewster, Washington, on state road No. 10 extension from the vicinity of Brewster to the vicinity of Coulee City in the State of Washington, and the necessary right-of-way and approaches not now a part of the primary highway system, for the purpose of ascertaining and determining the present fair value thereof.

'Sec. 2. The director of highways is hereby empowered and directed to acquire by purchase, gift or condemnation the said toll bridge and necessary right-of-way for approaches thereto at a price not to exceed the present fair value thereof. If the said bridge and the necessary right-of-way for approaches thereto cannot be so acquired for a present value considered to be fair thereof, the director of highways may in his discretion proceed to acquire the necessary right-of-way for the erection and construction of a new bridge at a feasiable place near said toll bridge so that the same will be connected with and become an integral part of said state road No. 10 extension.'

Read together, it will be seen that the 1937 act is supplementary to the act of 1935. The latter was a broad authorization to the highway department to acquire the bridge by purchase, gift, or condemnation, with authority to the director, in certain contingencies, to construct a new bridge near the existing one.

In so far as the authorization for condemnation was concerned, this act was not limited as to time for its exercise. In so far as it authorized the construction of a new bridge, in case the existing one could not be acquired, the act might be ineffective, since it made no appropriation; and, even if an appropriation had been made for acquisition without condemnation, the appropriation would lapse with the expiration of the biennium. It is evident that this circumstance largely determined the necessity for the 1937 act, which is essentially an appropriation to enable the highway department to carry out the direction contained in the 1935 act.

Apart from the particular authority contained in the 1935 act, the highway department, on authorization by the Legislature, in any appropriate language, to acquire property necessary to the completion of any unit of the state's highway system, could, under the broad language of Rem.Rev.Stat. § 891, maintain condemnation. The section provides:

'Whenever any officer, board, commission, or other body representing the state is authorized by the legislature to acquire any * * * property, deemed necessary for the public uses of the state, or any department or institution thereof, and the officer, board, commission or other body whose duty it is to acquire such * * * property is unable to agree with the owner or owners thereof for its purchase, it shall be the duty of the attorney general to present to the superior court of the county in which said * * * property so sought to be acquired or appropriated shall be situated, a petition in which the * *...