dissenting.
It has seemed to me that this Court is reluctant to allow or award attorney fees.
In this case, however, the Court swings with a double-bladed axe. Not only is the attorney pruned of his rightful fee, but the client, a condemnee supposedly guaranteed his costs under the 1972 Montana Constitution, finds his constitutional recovery of cost cut to nothing. He must reach into his recovery in order to pay his expenses of litigation.
“Just compensation” is defined in the 1972 Mont.Const. Art. II as follows:
“Section 29. Eminent domain. Private property shall not be *307taken or damaged for public use without just compensation to the full extent of the loss having been first made to or paid into court for the owner. In the event of litigation, just compensation shall include necessary expenses of litigation to be awarded by the court when the private property owner prevails.” (Emphasis added.)
What is lacking in the decision of this Court in this case is an understanding of the intention of the constitutional framers in adopting 1972 Mont.Const. Art. II, § 29. Prior to 1972, there was no statutory provision for an offer during litigation by the Highway Department, because prior to 1972, each condemnee had to bear the considerable cost of litigation, including appraisers, engineers and attorney fees, out of any recovery he made. The landowner was forced many times to inadequate settlements because he couldn’t win for losing, even though the previous constitution provided for “just compensation” for the owner (1889 Mont.Const. Art. Ill, § 14).
Before 1972, as now, the Highway Department followed the practice of issuing a letter designated a “final offer”, stating separately the offer for land and for after-damage, before litigation was commenced. Before the “final offer” the State and landowner were in contact many times, sometimes for several years while the proposed construction went through the long process from drawing board to contract-letting. It was when the contract was about to be let that the State felt the complusion to get out its letter of final offer, for litigation then became necessary.
That background explains the dialogue of the delegates to the 1972 convention. The proposal in the condemnation provision of the new constitution of 1972 was that “just compensation” should include necessary costs of litigation to the “prevailing party”. It was the contemplation of the delegates that if the landowner, by litigation, proved that the final offer received before litigation was insufficient, he was the prevailing party and entitled to his costs of litigation as a part of his “just compensation”.
This background explains why the constitutional convention notes appended to 1972 Mont.Const. Art. II, § 29, state:
*308“Retains provision in 1889 Constitution [Art. Ill, sec 14] on eminent domain and expands its protection by guaranteeing that a property owner who goes to court and is awarded more money than offered for his property being condemned will be reimbursed for the necessary expenses of the lawsuit (such as appraiser and attorneys fees).” (Emphasis added.)
In 1973, the State Highway Department (not the landowners) ' went to the legislature to obtain the passage of Ch. 453, Laws of Montana (1973) codified as section 93-9921.1 R.C.M.1947, which reads as follows:
“Necessary expenses of litigation. The condemnor, shall within thirty (30) days after an appeal is perfected from the commissioner’s award or report, submit to condemnee a written final offer of judgment for the property to be condemned, together with necessary expenses of condemnee then accured.
“If at any time prior to ten (10) days before trial, the condemnee served written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon judgment shall be entered. An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible at the trial except in a proceeding to determine costs. The fact that an offer is made but not accepted does not preclude a subsequent offer. In the event of litigation, and when the private property owner prevails, by receiving an award in excess of the final offer of the condemnor, the court shall award necessary expenses of litigation to the condemnee.” (Emphasis added.)
Note especially that the only “final offer” described in section 93-9921.1, now section 70-30-305 MCA is the one which must occur within thirty days of the appeal of the commissioner’s award. Any other later offer is a “subsequent offer”. But it is the “final offer” under the statute that fixes the right of the condemnee to attorney fees and costs as a part of his recovery in just compensation.
One could assume that section 93-9921.1, now section 70-30-305 MCA is clear and unambiguous on its face, and needs no interpretation. In this decision, the Court abandons its rule of State Depart*309ment of Highways v. Olsen (1975), 166 Mont. 139, 148, 531 P.2d 1330. In that case, the parties had waived by stipulation the commission hearing (provided in section 93-9912, R.C.M.1947, now section 70-30-207 MCA and proceeded straight to jury trial on the issues. The only offer made by the State was before the'litigation commenced. The State claimed that since it had not made an offer within thirty days of a commission decision, no “final offer” existed and therefore, the prevailing condemnee could not collect attorney fees. The court rejected this contention saying:
“To adopt such a theory here would contravene the intent of the statute and would violate the constitutional mandate. Article II, Section 29, 1972 Constitution requires that a landowner be compensated for necessary expenses of litigation if he prevails. This constitutional directive cannot be frustrated by inadvertent or intentional violations of statutory procedure.” 166 Mont. p. 147, 531 P.2d 1334.
Statutes are made to be obeyed, by the servants of the State as well as by the general public. Here the condemnee is being punished because the State failed to follow the mandate of the statute as to when the final offer should be made. To reach that unlawful result the majority decision equates “subsequent offer” with “final offer”, but the “subsequent offer” here does not follow anything. Result: section 93-9921.1, now section 70-30-305 MCA, is tortured beyond recognition and the intent of the constitutional framers is thwarted.
The majority opinion cites Rauser v. Toston Irrigation District (1977), 172 Mont. 530, 565 P.2d 632, 641, as authority for what it does in this case. Rauser is not authority for any issue in this case. In Rauser, there was involved an inverse condemnation, where no offers were made. There the court merely implied that a rejected compromise sum was an offer in order to award attorney fees to the prevailing party.
Today’s decision sounds the final knell for the purposes of section 93-9921.1, now section 70-30-305 MCA. Not only is the statutory thirty-day requirement thrown out the window, but the Highway *310Department is given carte blanche to defeat the condemnee’s right to attorney fees and costs by allowing the Highway Department to make its offer (final or subsequent, as you will) at any time, perhaps even during the trial and gamble on the outcome.
We have come full circle. The landowners are back where they were prior to 1972.
In my opinion Judge Brownlee understood the situation perfectly. I would affirm his decision.