(dissenting) — I dissent. The majority, I think, in upholding the plain language of RCW 76.12.120 enacted in 1923, forever reserving state forest lands from sale, has failed to give the same full effect to equally plain language employed in 1961 by the legislature in allowing the Department of Natural Resources discretion to grant rights and easements in such lands. RCW 79.01.414.
Forever is a long time, even in the forested regions of the Pacific Northwest, and when the legislature realized in 1961 it had, in 1923, sequestered forest lands forever from sale or grant — even in cases of the most urgent necessity — I think that it intentionally changed the law to provide for exceptional circumstances.
The city of Tacoma wishes to buy from the state of Washington certain forest lands within the city’s Green River municipal watershed. Its purpose is to preserve and maintain a supply of pure water for the city. The Department of Natural Resources, claiming power to do so under RCW 79.01.414, has shown that it intends to make the sale and grant the land, unless prohibited by the courts.
That the legislature intended in 1923 to keep forest lands intact and forever preserved may be seen in Laws of 1923, ch. 154, § 7, p. 497 (RCW 76.12.120), stating:
All lands acquired or designated by said [state forestry] Board as state forest lands shall be forever reserved from sale, ... . (Italics mine.)
*678But the intent is equally clear that, nearly 40 years later, the legislature, exercising the identical powers by which it had forever removed the lands from any possible transfer, changed this drastic provision and awarded the Department of Natural Resources discretion to transfer such lands in exceptional circumstances. Laws of 1961, ch. 73, § 12, p. 1499 (RCW 79.01.414).
That the legislature made this change circumspectly and consistent with the idea of preserving forever — if not all, then nearly all — forest lands, may be seen in the restrictive character of the discretion vested in the Department of Natural Resources and in the omission to vest any powers in others to force the department to act. The department may grant in forest lands only such easements and rights as the recipient could lawfully acquire in privately owned lands were he proceeding elsewhere in eminent domain. No person — private, corporate, municipal or other — acquires any power in eminent domain by this statute (RCW 79.01-.414), for the enactment vests power only in the department to grant, not power in others to compel it. Eminent domain is hot used here as a grant of power, but rather as a delimiting measure for a power granted. The language employed seems remarkably suitable to so narrow and restrictive a purpose. RCW 79.01.414 reads:
The department of natural resources may grant to any person such easements and rights in state lands, tidelands, shorelands, oyster reserves, or state forest lands as the applicant applying therefor may acquire in privately owned lands through proceedings in eminent domain. No grant shall be made under this section until such time as the full market value of the estate or interest granted together with damages to all remaining property of the- state of Washington has been ascertained and safely secured to the state.
I would agree with the majority that repeals by implication are not favored and that two enactments on the same subject will be allowed to stand side by side unless they are clearly repugnant to each other and cannot by fair and reasonable construction be reconciled. Babcock v. School *679Dist. No. 17 of Clallam Cy., 57 Wn.2d 578, 358 P.2d 547; State ex rel. Reed v. Spanaway Water Dist., 38 Wn.2d 393, 229 P.2d 532. But it should be noted that lands cannot be forever sequestered and at the same time subject to grant or transfer. The corral gate cannot be held open and latched at the same time. Thus, the Department of Natural Resources cannot, under both statutes, be said to possess powers and duties standing side by side — one the duty to preserve forever state forest lands, and the other the power to grant easements and rights in the same lands.
I see an irreconcilable repugnancy between the two acts if left standing side by side, and conclude that in 1961 the legislature, by specifically granting the powers to the Department in RCW 79.01.414, intended and did amend RCW 76.12.120.
Where two statutes dealing with the same subject matter stand side by side, one treating the subject in a general comprehensive way, and the other enacted substantially later relating to a small, detailed area of the subject matter, I think the rule of construction set forth in City of Airway Heights v. Schroeder, 53 Wn.2d 625, 335 P.2d 578, remarkably pertinent:
This construction of the statutes is in accord with the general rule that where general and special laws are concurrent, the special law applies to the subject matter contemplated by it to the exclusion of the general law. State v. Becker, 39 Wn. (2d) 94, 234 P. (2d) 897. Also, it is in accord with the related rule that, the subsequent enactment of a statute which treats a phase of the same general subject matter in a more minute way consequently repeals pro tanto the provisions of the general statute with which it conflicts. 1 Sutherland, Statutory Construction (3d ed.) 488, § 2022; In re Walder v. Belnap, 51 Wn. (2d) 99, 316 P. (2d) 119.
Again I wish to point out that the language of RCW 79.01.414 grants no rights in eminent domain to anyone. It merely delimits and defines the kind of rights and easements which the Department of Natural Resources may grant as the grantee or transferee thereof might lawfully *680acquire through eminent domain. I see no reason to read out of this language the power to sell or grant in fee simple if such estates could lawfully be acquired by the grantee in the exercise of eminent domain.
Therefore, I would reverse, vacate the restraining order and have the action dismissed.
October 21, 1965. Petition for rehearing denied.