State v. Clausen

• Decision Date: 02 January 1917
• Docket Number: 13366.
• Citation: 94 Wash. 166,162 P. 1
• Parties: STATE ex rel. PEEL et ux. v. CLAUSEN, State Auditor.
• Court: Washington Supreme Court

162 P. 1

94 Wash. 166

STATE ex rel. PEEL et ux. v. CLAUSEN, State Auditor.

No. 13366.

Supreme Court of Washington

January 2, 1917

Department 1. Original proceeding on relation of H. W. Peel and wife, to compel C. W. Clausen, State Auditor, to issue warrant in payment of judgment rendered in condemnation proceedings. Respondent demurred. Demurrer overruled, and writ directing issuance of warrant ordered.

H. W. Canfield, of Spokane, and Troy & Sturdevant of Olympia, for plaintiffs.

W. V Tanner, Atty. Gen., and R. E. Campbell, of Olympia, for defendant.

CHADWICK J.

The state, in the prosecution of its highway extensions, brought suit against the relators to condemn a right of way over certain lands owned by them in Spokane county. A jury returned a verdict in favor of relators for the sum of $1,026, and costs taxed at $125.40. Prior to the time the judgment was entered, the Pennsylvania Mortgage Company had brought a proceeding to foreclose a mortgage upon relator's lands and had caused the lands to be sold at sheriff's sale to satisfy the decree. The company became the purchaser at the sale, and now holds the legal title subject to redemption.

Pending the entry of the judgment in the eminent domain proceeding an agent of the state had obtained a quitclaim deed from the mortgage company for the right of way. This deed is held in escrow pending a possible redemption. After the entry of the judgment in favor of the relators, the state took possession of the right of way and has cleared, graded, and graveled, and is maintaining a roadway upon it. The state has not paid the amount of the judgment and costs into court or any part thereof, although repeatedly requested so to do. Relators have brought this proceeding to compel the issuance of a warrant in payment of the judgment. Respondent has demurred to the petition, setting up the several legal defenses; that relators have no interest in the subject-matter; that there is a defect of parties defendant; and that there is no allegation in the petition showing that there is a fund upon which the warrant can be drawn, and out of which it can be paid.

1. Interest in the Subject-Matter. The objection that the mortgagee is the owner of the land, and entitled to the award as against relators, or that the state is not bound by the judgment on account of the deed, is not tenable. The Attorney General supports his contention by reference to section 602 of the Code and the following cases: Hardy v. Herriott, 11 Wash. 460, 39 P. 958; Dane v. Daniel, 23 Wash. 379, 63 P. 268; McManus v. Morgan, 38 Wash. 528, 80 P. 786; Merz v. Mehner, 67 Wash. 135, 120 P. 893.

As between the mortgagor and the mortgagee holding subject to redemption, the question of ownership may be material, and should be determined when the fund paid for the taking of the property is distributed, but a judgment debtor cannot question, in a collateral way, a judgment once entered in favor of a particular party and not appealed from.

The state has had the value of the land taken assessed by a jury, and it is bound to pay that value unless the payment is waived by those who are entitled to it. The apportionment of the fund between the relators and the mortgagee is a matter of no interest to the state. Neither is it sufficient to say that if there is no redemption, the state can take the deed from the mortgage company and permit the judgment to go unsatisfied. It being the duty of the state, under the Constitution, to pay the award, the mortgagee could not, under the record, disclaim the award if it would. Nor can the state now deal with the mortgagee as the owner. It brought its action against relators alone, and had a judgment entered in their favor. The mortgage company had notice of the eminent domain proceeding, and the state had notice of the mortgage. It does not appear that the state tendered any issue as to ownership. Nor was an appeal taken from the judgment. The state could have purged itself of all questions of ownership and distribution of the award by doing what the statute requires; that is, by making the mortgagee a party or by paying the award into court, at the same time calling the attention of the court to the state of the title and the necessity of an order distributing the fund.

The cases of North Coast R. Co. v. Hess, 56 Wash. 335, 105 P. 853, Carton v. Seattle, 66 Wash. 447, 120 P. 111, and State ex rel. Long v. Superior Court, 80 Wash. 417, 141 P. 906, do not bear in favor of respondent. On the contrary, they hold, in so far as they bear at all, that a petitioner in a condemnation proceeding can, by following the statute, take the land without assuming the burden of distributing the fund. But, inasmuch as the state has paid nothing into court, and there is no showing that the mortgagee is claiming any part of the award as against the judgment creditors, it is idle to further discuss this phase of the case.

2. Defect of Parties. Relators rely upon Rem. & Bal. Code, § 889:

'No execution shall issue against the state on any judgment, but whenever a final judgment against the state shall have been obtained in any such action, the clerk shall make and furnish to the auditor of state a duly certified transcript of such judgment; and the auditor of state shall thereupon audit the amount of damages and costs therein awarded, and the same shall be paid out of the state treasury.' Laws 1895, p. 188, § 4.

The Attorney General relies upon the eminent domain statute (sections 891-900), wherein it is provided that after an award is made, the Attorney General shall file a certificate with the auditor. Section 900 follows:

'Whenever the Attorney General shall file with the auditor of this state a certificate setting forth the amount of any award found against the state of Washington under the provisions of this act, together with the costs of said proceeding, and a description of the lands and premises sought to be appropriated and acquired, and the title of the action or proceeding in which said award is rendered, it shall be the duty of the state auditor to forthwith issue a warrant upon the state treasury to the order of the Attorney General in a sum sufficient to make payment in money of said award and the costs of said proceeding, and thereupon it shall be the duty of said Attorney General to forthwith pay to the clerk of said court in money the amount of said award and costs.' Laws 1891, p. 143, § 10.

It is contended that the Attorney General is a necessary party. At the argument, we were inclined to the belief that there might be some conflict between sections 889 and 900. After a more careful consideration we find no conflict. Each has its place. The application of either will depend upon the record. Article 1, § 16, of the Constitution provides that land shall not be appropriated to a public use unless its value is first ascertained and paid into court for the owner. We have held that a condemnor, if dissatisfied with the award, is not bound to pay the judgment and take the property. Port Angeles P. R. Co. v. Cooke, 38 Wash. 184, 80 P. 305; State ex rel. Struntz v. Spokane County, 85 Wash. 187-189, 147 P. 879; Lewis, Eminent Domain, § 955; 1 Elliott, Roads and Streets, § 307.

The holding that title would not pass until the award had been paid into court in satisfaction of the judgment followed. North Coast R. Co. v. Gentry, 73, Wash. 188, 192, 131 P. 856; Port of Seattle v. Yesler Estate, 83 Wash. 166, 171, 145 P. 209.

Section 900 means no more than that the claimant in a condemnation proceeding can assert no rights in the judgment. His right of payment, as well as the right of the state to take possession of the land for public uses, is made dependent upon the certificate of the Attorney General. The act of the Attorney General, notwithstanding the use of the word 'shall,' is one of discretion. If the award is not satisfactory, the state can abandon the proceeding. If it is satisfactory, the Attorney General can file his certificate, whereupon a warrant is drawn to his order, and, upon the payment of the judgment, title will pass.

But the state is in no position to invoke this statute. It has ignored the privileges of the chapter upon which it relies, and, by taking actual possession of the right of way in defiance of the Constitution, has made itself subject to the money judgment which was entered against it in the original case. The purpose of section 900 was to permit the state to repudiate a judgment in a condemnation proceeding. Having taken the land, it has waived the right to repudiate, and is, in law, charged with its value.

In the interest of public policy, this court has held that the state or a municipal corporation, or a corporation exercising the privileges of the sovereignty, will not be ousted if it has wrongfully taken possession of the land and is, in fact, devoting it to a public use. The owner will be left to his remedy at law to recover damages. The cases are collected in Domrese v. City of Roslyn, 89 Wash. 106, 154 P. 140. The corollary of the cases cited should be equally well settled in principle; that is, if a petitioner has determined the value of the land prior to the time possession is taken, it cannot find protection by urging the omission of some duty imposed upon it by the eminent domain statutes, but must answer the money demand of the judgment.

3. The Burden of Pleading and Proving a Solvent Fund. The burden is not upon relators to plead the state of the public funds. The state, through its officers, has taken relator's property and put it to a public use in defiance of the constitutional limitations upon its power to take without first making just compensation. Const. art. 1, § 16. Having failed in its duty to the citizen, the law will presume that...