(dissenting) — This is an action instituted by the state of Washington against five corporate defendants, pursuant to the provisions of ROW 76.04.370 (also referred to as the slash statute), to recover the cost of fighting a forest fire. The fire was of unknown origin and started on August 5, 1952, on certain land located in Whatcom county owned by Anacortes Veneer, Inc., and spread to contiguous timber lands owned by certain other defendants. The remaining defendants above named either were owners of the timber situated thereon or were conducting logging operations thereon.
The three defenses affirmatively raised in the defendants’ answers were (1) that the fire started during the logging operation which produced the inflammable debris (herein called slash) and it was impossible for defendants to abate the fire hazard; (2) that it was unlawful to burn the slash prior to the start of the forest fire; and (3) that the statute is unconstitutional under the due process clause if interpreted to apply to the above-described situation in which defendants found themselves at the time the fire started. The fifth corporate defendant also asserted that the statute denied it equal protection of the law.
The state’s motions to strike these defenses were denied by the trial court after argument except the allegations of unconstitutionality. The remaining affirmative allegations of the answers were denied by the state’s reply and the case came on for trial before the court sitting without a jury. At the close of the reception of evidence (the trial consumed three days), the court rendered an oral opinion but took the case under advisement as to the principal issues. Several months later, the court filed a written memorandum decision holding in favor of the five defendants.
Thereafter, the trial court entered its findings of fact, conclusions of law, and judgment dismissing the state’s com*892plaint with prejudice. Parenthetically, the findings and conclusions adopted by the court were those proposed by the defendants. The court fixed the total amount reasonably incurred by the state in fighting the fire at $4,695.30. The state has appealed from the judgment of dismissal.
In its brief, the state sets out twenty-six assignments of error, but states its principal purpose in appealing to this court as being “to establish (1) that RCW 76.04.370 applies to newly created slash and (2) so applied, it is a reasonable and legitimate exercise of the police power.”
The crucial facts as found by the trial court are stated in finding of fact No. 4, as follows:
“That the defendants acting in their respective capacities as owners of the land or timber and/or as logging operators, as the case may be, were in no way careless or negligent. That the logging debris upon the land involved was a normal and natural accumulation of logging debris and the logging conducted upon the premises involved was in all respects done lawfully and in compliance with all existing fire regulations. That there was no practical way to remove said logging debris at any time after its creation and prior to the fire except by burning and at no time subsequent to the creation of said logging debris were the defendants or any of them permitted by the State authorities or any other authorities to burn said logging debris; and any attempt by any defendant to remove the inflammable material by burning prior to the fire would have been in violation of law.” (Italics mine.)
(The only portion of this finding which is challenged by the state is that italicized above. Since there was substantial evidence to support the challenged portion, it should be accepted as true by this court.)
The decisive legal question presented is whether the trial court’s conclusion of law No. 3 correctly stated the law applicable to this case. That conclusion was:
“The statute R.C.W. 76.04.370 does not impose an absolute liability for the creation of logging debris in the circumstances presented by this case and does not impose liability where the logging debris in logging operations cannot be disposed of by practical means prior to a fire. That where the circumstances, as in this case, are such that the logging *893debris cannot be disposed of prior to a fire by practical means, then the application of R.C.W. 76.04.370 to impose liability in such circumstances would be unconstitutional.”
In contending that this conclusion is erroneous, the state relies on our recent decision in State v. Canyon Lbr. Corp., 46 Wn. (2d) 701, 284 P. (2d) 316 (1955). In that case, we had the question of the constitutionality of RCW 76.04.230 submitted on a demurrer to the complaint. It was alleged that there were nearly three thousand acres of slash-covered land. A fire started at a time when no logging operations were under way on the land. The existence of the slash necessitated the fire-fighting expense for which the state sought recovery.
The trial court in this case, in his memorandum decision, commented on our decision in the Canyon Lumber case as follows:
“The facts may be supplemented as follows:
“(1) Defendants and each of them complied with all existing fire regulations.
“(2) There was no practical way to remove the existing slash except by burning, and this method of abatement was not permitted.
“On the matter of liability, this Court construed the statute in State v. Canyon Lumber Corporation, et al., 46 Wash. (2d) 701. The constitutionality of the statute was upheld. It was said that liability will result under the statute if a party ‘has either created the hazardous condition or has suffered it to remain upon his land.’ Now, at first blush, this language seems sweeping, yet in view of the entire consideration of the case by the Court it seems that several conclusions may be drawn:
“(1) The logger is liable if he creates the hazard or if he suffers it to remain. (This construction imposes an absolute liability.)
“(2) The logger is liable only if he both creates the hazard and then fails to remove it.
“ (3) The owner is liable if he permits a contracting logger to create the hazard on his land, or if he suffers it to remain thereon after it has been created by the logger. (This construction imposes an absolute liability.)
“ (4) The owner is liable if he suffers the hazard to remain upon his land.
*894“The point in issue is considered under paragraphs 6, 7 and 8. At the outset the Court states that the statute is designed to provide for the removal of a hazard created by logging and ‘the sanction imposed, in the event of failure to remove, is liability for fire fighting costs made necessary by such hazard.’ This implies to me that the gravamen of the wrong is in permitting the hazard to remain, and it is difficult for me to read into this by implication a wrong for logging lawfully done in compliance with all fire regulations. I hesitate to do so by implication. If such is the intention of the decision, then the objection raised by respondents in the case could have been more clearly answered.”
Initially, it should be determined whether the trial court correctly construed the statute.
RCW 76.04.370 reads as follows:
“Any land in the state covered wholly or in part by inflammable debris created by logging or other forest operations, land clearing, or right of way clearing and which by reason of such condition is likely to further the spread of fire and thereby endanger life or property, shall constitute a fire hazard, and the owner thereof and the person responsible for its existence shall abate such hazard. If the state shall incur any expense from fire fighting made necessary by reason of such hazard, it may recover the cost thereof from the person responsible for the existence of such hazard or the owner of the land upon which such hazard existed, and the state shall have a lien upon the land therefor enforceable in the same manner and with the same effect as a mechanic’s lien. Nothing in this section shall apply to land for which a certificate of clearance has been issued.
“If the owner or person responsible for such hazard refuses, neglects, or fails to abate the hazard, the supervisor may summarily cause it to be abated and the cost thereof may be recovered from the owner or person responsible therefor, and shall also be a lien upon the land enforceable in the same manner with the same effect as a mechanic’s lien. The summary action may be taken only after twenty days’ notice in writing has been given to the owner or reputed owner of the land on which the hazard exists either by personal service or by registered letter addressed to him at his last known place of residence.”
The state takes the position that, under the statute, liability for fire-fighting costs is dependent only upon the mere *895existence oí the hazard and not upon a failure to abate the hazard. Thus, it is contended that the fact that abatement may be impractical or even impossible is irrelevant to an action to recover fire-fighting costs.
Undoubtedly, a literal interpretation of the statute lends some support to the state’s position. It is clear that the first paragraph imposes two obligations, to wit (1) to abate the hazard; (2) to reimburse the state for those costs incurred from fire fighting made necessary by reason of the existence of such hazard. What is not so clear is whether the two obligations are independent. In other words, does liability for fire-fighting costs arise because of a breach of the duty to abate, or is such liability entirely separate and distinct from abatement?
Since the duty to reimburse the state for fire-fighting costs immediately follows the creation of the duty to abate the hazard, it is arguable that liability is contingent upon failure to abate the hazard. However, in the second paragraph there is further created the duty to reimburse the state for its costs in abating the hazard, and here the duty is expressly made dependent upon a refusal, neglect, or failure to abate. Thus, argues the state, if the legislature had intended liability for fire-fighting costs to be dependent upon failure to abate the fire hazard, it would have expressly said so as it did in regard to costs of abatement in the second paragraph.
Although the matter is not altogether free from doubt, the state’s argument is the more compelling one and would seem to be conclusive here but for the legislative history of the slash statute.
The slash act was enacted in 1917. It was amended in 1921, 1929, 1939, and 1951. See Laws of 1917, chapter 105, § 4, p. 351; Laws of 1921, chapter 64, § 2, p. 198; Laws of 1929, chapter 134, § 1, p. 351; Laws of 1939, chapter 58, § 1, p. 171; Laws of 1951, chapter 235, § 1, p. 742. From 1917 until the 1951 amendment, there was no reference to firefighting costs in the first paragraph of the act. Instead, the provision for such costs was linked with the costs of abatement in the second paragraph and made dependent upon a *896refusal, neglect, or failure to abate the fire hazard. For purposes of clarification, I quote the 1939 version of the slash statute:
“Any land in the State of Washington covered wholly or in part by inflammable debris created by logging or other forest operations, land clearing, and/or right of way clearing and which by reason of such condition is likely to further the spread of fire and thereby endanger life or property, shall constitute a fire hazard, and the owner or owners thereof and the person, firm or corporation responsible for its existence are required to abate such hazard. Nothing in this section shall apply to lands for which a certificate of clearance . . . has been issued.
“If the owner or person, firm or corporation responsible for the existence of any such hazard shall refuse, neglect or fail to abate such hazard, the state supervisor of forestry may summarily cause it to be abated and the cost thereof and of any patrol or fire fighting made necessary by such hazard may be recovered from said person, firm or corporation responsible therefor or from the owner of the land on which such hazard existed by an action for debt and said costs shall also be a lien upon said land and may be enforced in the same manner, with the same effect and by the same agencies as the lien provided for in section 3 of chapter 105, Laws of 1917 (section 5806 of Remington’s Revised Statutes; . . . ): Provided, That said summary action hereinbefore referred to may be taken only after twenty (20) days’ notice in writing has been given to the owner or reputed owner of the land on which the hazard exists either by personal service on said owner or by registered letter addressed to said owner at his last known' place of residence.”
Thus, it is clear that, prior to the 1951 amendment, firefighting costs were imposed as the sanction for failure to remove the fire hazard.
It is to be further noted that, from 1917 until the 1939 amendment, notice from the state was required before liability for fire-fighting costs could be imposed. For example, the relevant portion of the second paragraph of the 1929 version of the slash statute reads as follows:
“If the owner or person, firm or corporation responsible for the existence of any such hazard shall refuse, neglect or fail to abate such hazard as required by such notice, the *897state supervisor of forestry may summarily cause it to be abated and the cost thereof and of any patrol or fire fighting made necessary by such hazard may be recovered from said person, firm or corporation responsible therefor or from the owner of the land on which such hazard existed ...” (Italics mine.)
Under all of the acts prior to 1939, it is clear that there was to be no liability in the absence of notice from the state. However, in 1939, the act was amended so that the reference to notice no longer preceded the provision relating to firefighting costs, but was inserted in the proviso at the end of the second paragraph, so that it read:
“. . . That said summary action hereinbefore referred to may be taken only after twenty (20) days’ notice
Does the twenty-day notice requirement pertain only to the costs of abatement, or does it also refer to the costs of patrol and fire fighting? The provision is ambiguous, especially when it is noted that the costs of patrol and fire fighting are linked together with the costs of abatement as in prior years, and when it is further noted that in all the prior acts notice was clearly required before the state could collect patrol and fire-fighting costs.
My review of the historical evolution of the slash statute establishes three significant points: (1) From 1917 until 1951, fire-fighting costs were imposed as a sanction for the failure to remove a fire hazard; (2) from 1917 until 1939, notice from the state was a condition precedent to liability for fire-fighting costs; (3) from 1939 until 1951, it is not clear whether notice from the state continues to be a condition precedent to liability for fire-fighting costs.
In 1951, the legislature amended the slash act by transposing the provision relating to liability for fire-fighting costs from the second to the first paragraph so that it would immediately follow the creation of the duty to abate. Thus, for the first time, the liability for fire-fighting costs was separated from the liability for the state’s abatement costs. By virtue of this amendment, all ambiguity with respect to *898the notice requirement in the 1939 statute was removed so that thereafter the state would be entitled to collect the costs of fire fighting in the absence of notice.
By the transposition of the provision for fire-fighting costs from the second to the first paragraph, did the legislature intend to do away with such provision as a sanction to be imposed only in the event of failure to remove the fire hazard and,, instead, impose liability whenever the state has incurred .fire-fighting costs made necessary by reason of the mere existence or creation of such hazard?
I think not. Traditionally, fire-fighting costs have been imposed as a sanction in the event of failure to remove the hazard. To say that the legislature intended to abandon the requirement that liability for fire-fighting costs be contingent upon failure to remove the hazard would result in the creation of liability without fault. If such a radical change in the law were intended by the legislature, surely it would have made its intention much clearer than we find it here.
Furthermore, I am convinced that the sole purpose of amending the statute in 1951 was to clarify the notice provision in the 1939 act so as to clearly enable the state to collect the costs of fire fighting in the absence of any notice.
I am of the opinion that RCW 76.04.370 imposes liability for fire-fighting costs only in the event of failure to remove the fire hazard: The purpose of the statute is to provide for the removal of a fire hazard and the sanction imposed for failure to remove such hazard is liability for fire-fighting costs. As noted by the trial court, the gravamen of the wrong is in permitting the hazard to remain.
The question remains whether the statute can be constitutionally applied to the facts of this case.
We must bear in mind that the creation of slash is a necessary incident of any logging operation. Mr. Griff Williams, field supervisor for the state department of natural resources, inspected the area prior to the fire and found that the logging operations were being conducted lawfully and in compliance with all existing fire regulations. The fire was of unknown origin and started while the logging *899operations were in progress. Respondents fought the fire from its inception and its spread was not due to any negligence on their part.
The trial court found upon substantial evidence that the only practical means of removing the slash was by burning. However, RCW 76.04.170 requires a permit from the state before slash may be burned, and Mr. Griff Williams testified that if a permit had been applied for it would not have been issued. Thus, respondents could have avoided liability in this case only by performing an act which the state would not permit them to perform. With reference to the slash statute in the Canyon case, supra, we said:
“. . . This statute was obviously enacted on the premise that it was within the police power granted to the states. It is valid, if not unreasonable in application, or arbitrary, or the means adopted are not ill suited to accomplish the end sought. [Citations omitted] The slash statute is designed to provide for the removal of a hazard created by logging or right-of-way clearing operations. The sanction imposed, in the event of failure to remove, is liability for fire-fighting costs made necessary by reason of such hazard. The end sought — removal of the hazard — is within the police power of the state. . . . ” (Italics mine.)
It is to be noted that my construction of the statute in the instant case is in accord with the language italicized above. The purpose sought by the statute is the removal of the hazard, and the means adopted to accomplish such purpose is the imposition of liability to the state for fire-fighting costs for failure to remove the hazard. It is obvious, under the facts of this case, that the means adopted are not reasonably well suited to accomplish the purpose.or end sought. What could be more unreasonable or arbitrary than to impose liability to the state for fire-fighting costs because of respondents’ failure to do an act which the state would not permit to be done?
I agree with the trial court’s conclusion of law No. 3 to the effect that to so apply the statute to the facts in the case at bar would be unconstitutional. The state has failed to show that respondents have been remiss in any legal duty imposed upon them.
*900The conclusion I have reached with respect to the correct interpretation of the statute as applied to the facts of this case makes it unnecessary to consider the other questions discussed in appellant’s briefs.
The judgment of the trial court should be affirmed.
Weaver and Ott, JJ., concur with Donworth, J.