County of Ada v. State

McQUADE, Justice.

This action was commenced by Boise City and Ada County on June 5, 1969. The City and County seek to condemn a portion of property upon which the Old Soldiers’ Home is situated, and which is now held as surplus property of the State. The City and County desire to acquire this property for an extension of Curtis Road from the first bench to Highway 44. The State in answering alleged that, by virtue of Session Laws 1963, ch. 228, sec. 6, at page 638, the State had not waived its sovereign immunity to be sued in eminent domain condemnation proceedings insofar as this particular land is concerned.

The State moved for summary judgment on the grounds that, because it had not waived its sovereign immunity and the suit was therefore barred, the district court did not have jurisdiction. On August 1, 1969, the district judge entered an order denying the State’s motion for summary judgment. The City and County then moved for possession and use of the property to be taken by condemnation, and a hearing was had on this motion on September 9, 1969. The State again renewed its objection to the court’s jurisdiction, and the district court, standing on its order of August 1, again rejected the State’s contention. The new home has been completed and the City and County contend that, by virtue of the 1963 Session Laws, ch. 228, the property of the Old Soldiers’ Home has been declared to be surplus and is no longer appropriated to *831public use within the meaning of I.C. § 7-703(2). The State does not contest this point, and we will assume that the City and County are correct on this appeal.

On September 16, 1969, the district court entered two orders, one that the County and the City have the right of eminent domain by which to condemn the property of the State of Idaho involved in this action, and, the second, that the County and the City were entitled to take possession of the property as of the date of the orders. The State has appealed from the denial of its motion for summary judgment and from these last two orders. The only question presented on this appeal is whether or not the 1963 Session Laws, ch. 228, sec. 6 reserved the land which is the subject of this action from 'suit in a condemnation proceeding by virtue of the State’s general right of sovereign immunity. The sentence in that section which the State contends reserved the Old Soldiers’ Home property from condemnation is as follows:

“When the new facility is constructed and in use the present site of the Home is hereby declared surplus and will become the general property of the State of Idaho, to be held for later disposition by the Legislature.” (Emphasis supplied.)

It is by virtue of I.C. § 7-703 (2) 1 that the State has given its consent to be sued in condemnation proceedings in the jurisdiction of the district court.2 It is the State’s position that the sentence from the 1963 Session Laws, quoted above, effects a repeal of I.C. § 7-703(2) with respect to the particular property involved in this action. It is well established in this State that “repeal [s] by implication [are] not favored;” 3 If this Court were readily to allow such inexplicit repeals of legislative enactments, the interpretation of our statutes, and the public’s reliance thereon, would be thrown into confusion and uncertainty. Therefore, where earlier and later acts are not necessarily in conflict and may be reconciled by reasonable construction no repeal will result.4 The question before us is, then, whether the withholding of a power of “disposition” of the Old Soldiers’ Home property by the legislature is so irreconcilable with the State’s general consent to be sued in a condemnation proceeding for eminent domain as to have, in effect, repealed that consent with respect to the Old Soldiers’ Home property. We hold that it was not.

All parties and the district court agree that the word “disposition” as used in the 1963 Session Laws, ch. 228, is not a legal term of art, but connotes a commonly understood meaning of a voluntary act of managing, including conveying, property.5 As the district court correctly pointed out, the power to hold property for future disposition is one usually accorded the owner of the property. A condemnation in eminent domain in normally a taking of property, or some right appurtenant to ownership thereof, despite the property owner’s right to manage and convey his property as he sees fit. The power of eminent domain is, therefore, a limit on the rights of property owners to hold their property for *832future disposition. The term “disposition,” and the concept it evokes, are not, therefore, irreconcilable with I.C. § 7-703(2)’s provision that State land not appropriated to public use may be subject to condemnation.

The State, however, argues that just as disposition is a word connoting a voluntary act, so does the word “consent” describe an act of the will. They then argue that, because the State cannot be sued without its consent, if the State allows itself to be deprived of property through the medium of a lawsuit, the State is thereby “disposing” of its property, even though the same could not be said of a private property owner in a like situation. This argument misconceives the effect of I.C. § 7-703(2). The effect of the “consent” given by that section was to render the State a private property owner for purposes of eminent domain condemnation actions. If the legislature had wished that the State not stand in that posture with respect to the Old Soldiers’ Home property, it would have used clear and explicit language to achieve that end. Instead the word “disposition” was used, and, as we have indicated above, that term is in no way inconsistent with the usual posture of the State under I.C. § 7-703(2).

Because we have held that the legislature did not withhold the Old Soliders’ Home property from eminent domain condemnation, we need not, and therefore will not, proceed to decide the constitutional questions raised by the parties.6

The judgment of the district court is affirmed.

DONALDSON, and SPEAR, JJ., and FELTON, D. J., concur.

. “7 — 703. Private property subject to talcing.-r-The ■ private property which may be taken under this chapter includes:

“2. Lands belonging to the government of the United States, to this state, or to any county, incorporated city, or city and county, village or town, not appropriated to public use.”

. Petersen v. State, 87 Idaho 361, 393 P.2d 585 (1964) ; Hollister v. State, 9 Idaho 8, 71 P. 541 (1903).

. E. g., Golconda Lead Mines v. Neill, 82 Idaho 96, 101, 350 P.2d 221 (1960) ; Idaho Wool Marketing Assn. v. Mays, 80 Idaho 365, 371, 330 P.2d 337 (1958) ; Storseth v. State, 72 Idaho 49, 51, 236 P.2d 1004 (1951).

. E. g., Golconda Lead Mines v. Neill, supra note 3; Idaho Wool Marketing Assn. v. Mays, supra note 3; Storseth v. State, supra note 3.

. See Webester’s Third New International Dictionary of the English Language Unabridged 654 (P. B. Gove ed. 1967) ; see also Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 338-339, 56 S.Ct. 466, 80 L.Ed. 688 (1936).

. See Hill v. Schultz, 71 Idaho 145, 149, 227 P.2d 586 (1951); Twin Falls Canal Co. v. Huff, 58 Idaho 587, 599, 76 P.2d 923 (1938).