(dissenting) — RCW 8.25.070 states: “. . . the court may award the condemnee reasonable attorney’s fees *717. . if certain conditions are present. There must be (1) a trial for fixing the amount of compensation and (2) an offer by the condemnee to stipulate to an order of immediate possession of the property being condemned. These two conditions then must be followed by any one of three other conditions: (1) the state has failed to make a written offer within 30 days prior to trial; or (2) the judgment exceeds the offer by more than 10 per cent; or (3) the trial court finds that the state has shown bad faith in dealings with the property owner.
In this statutory framework it is apparent that it was the legislature’s intent that there be a quid pro quo between the state and the property owner, i.e., reasonable attorney’s fees in return for immediate possession by the state. See In re Kent, 77 Wn.2d 499, 502, 463 P.2d 132 (1969). The majority holds that this provision for attorney’s fees is mandatory irrespective of the circumstances of the tender of possession. I disagree.
Even though the legislature failed to set any specific time for the offer of immediate possession, common sense dictates that there must be a reasonable time so that the offer conveys something meaningful insofar as the state is concerned. The legislature has said the court “may award” reasonable attorney’s fees rather than making the statute mandatory. Read in its ordinary, permissive sense, this allows the court to look to the totality of the circumstances in applying the statutory conditions. Should the court determine that the offer of the property owner was not made in good faith, e.g., by reason of it being made on the “courthouse steps”, then the court may properly withhold attorney’s fees since there is no real quid pro quo.
The majority premises its conclusion that fees are mandatory upon the existence of the word “reasonable” in the clause, “may award . . . reasonable attorney’s fees . . .” The premise does not support the conclusion. I am aware of no statute or case law having to do with attorney’s fees that does not speak of “reasonable” attorney’s fees, whether the award of such be discretionary or mandatory. The term “reasonable” limits the amount of fees to be *718awarded. It has no relevance to the question of whether or not fees should or must be awarded in the first instance. In this regard, the majority’s reasoning seems to me both inherently unsound and contrary to our firmly settled rule that words in a statute, unless otherwise defined, must be given their usual and ordinary meaning. E.g., Foremost Dairies, Inc. v. State Tax Comm’n, 75 Wn.2d 758, 453 P.2d 870 (1969); Pacific Northwest Alloys, Inc. v. State, 49 Wn.2d 702, 306 P.2d 197 (1957); State v. Vosgien, 82 Wash. 685, 144 P. 947 (1914).
It is axiomatic that the controlling factor in statutory interpretation is the intent of the legislature. E.g., Krystad v. Lau, 65 Wn.2d 827, 400 P.2d 72 (1965); King County Employees’ Ass’n v. State Employees’ Retirement Bd., 54 Wn.2d 1, 336 P.2d 387 (1959). In ascertaining that intent, we apply tried and proven rules of construction to the actual words of the statute, such as discussed above. Additionally, courts may infer legislative intent from the legislative history of the enactment. Ropo, Inc. v. Seattle, 67 Wn.2d 574, 409 P.2d 148 (1965); State ex rel. Northwest Airlines, Inc. v. Hoover, 200 Wash. 277, 93 P.2d 346 (1939). Here, a review of the legislative history of RCW 8.25.070 provides conclusive support for the proposition that the award of reasonable attorney’s fees is not mandatory, but discretionary.
This statute began as House Bill 77 of the 1967 session of the legislature. In the original bill the provision here under consideration read:
If a trial is held for the fixing of the amount of compensation to be awarded to the owner or party having an interest in the property being condemned and the judgment awarded said parties for such compensation is in excess of the settlement offer required to be made by condemnor hereunder, the court shall fix a reasonable attorney’s fee to be awarded to the eondemnees.
(Italics mine.) The House Judiciary Committee rewrote the bill as Substitute House Bill 77 wherein the word “shall” was changed to “may.” After house passage of the substitute bill, the senate amended the provision, reinsert*719ing “shall” for “may.” Other amendments not germane to the issue before us were made in both the house and the senate. Due to the difference between the house and senate versions, the bill was sent to free conference where it was rewritten into its present and adopted form. This final compromise via the free conference committee restored the term “may” and, for the first time in the legislative development of the bill, included the present provision relating to tender of possession by the condemnee.
Review of the legislative history of RCW 8.25.070 discloses that the use of the permissive term “may” was neither casual' nor inadvertent. Rather, this choice between mandatory (“shall”) and permissive (“may”) language was clearly deliberate and resulted from direct differences between the two legislative bodies. It follows that this enactment vests trial courts with a measure of discretion as to whether attorney’s fees will be awarded, and the function of this court is to examine for possible abuse of that discretion. My review of the record convinces me there was no abuse of discretion here.
The trial judge expressed his reason for denial of attorney’s fees in stating that the tender of immediate possession of the property by the condemnee was not timely made. He thus recognized in the statute the legislature’s intent that the offer of possession must be made in time to be of some benefit to the state.
I do not mean to imply that a tender 1 or 2 days before commencement of trial is unreasonable per se. The trial court must look to the particular circumstances of the parties. Examples of factors to be considered include: (1) whether the property was vacant and unused or was the home of the condemnee; (2) the time elapsed between commencement of eminent domain proceedings and trial; and (3) whether the state or other condemnor has been delayed in construction of a public project by failure of the condemnee to tender immediate possession. Other factors may be present and considered in a proper case. The point is that the legislature has deliberately vested this matter in the discretion of the trial court.
*720Here the trial court duly considered the circumstances and concluded that the purpose of the statute was not fulfilled by the condemnee’s offer just prior to trial, there being no benefit then realizable by the state. The sound exercise of discretion is reflected in the trial court’s oral opinion:
Now certainly that isn’t what’s contemplated by the statute. So far as I read the statute it seems to me that there are certain conditions that have to be met. One, if a trial is held — well, here we had a trial, it was for that particular purpose of fixing the amount of compensation to be awarded. They were the respondents, who were the owners. Then secondly, if the condemnee has offered to stipulate to an order of immediate possession — we have the offer to stipulate, but it’s dated the 22nd, two days before trial, and undoubtedly wasn’t received until the 23rd. Well, what value is this to the state? Absolutely none that I can see. I think what this statute contemplated was back in January of 1968 when this case was filed, and a written order being Defendants’ Exhibit 2 here, was made also on the 25th day of January, 1968, that then and at that time it was incumbent upon the respondents within a reasonable period of time from receipt of that, to determine whether or not they wanted to enter into a stipulation for it.
Now I may be more interested in the reasonable point of view, or the reasonableness of the transactions between petitioners and respondents in cases than are other courts, but I think that the state on the one hand, and that the condemnee on the other, must act reasonably with each other, and I don’t think that a notice given that “We will stipulate to an order of immediate possession of the property being condemned,” received one day before trial, is reasonable.
The trial court properly construed and applied RCW 8.25.070, and should be affirmed.
Finley, Hamilton, and Hale, JJ., concur with Neill, J.
February 25, 1971. Petition for rehearing denied.