Tomten v. Thomas , 125 Mont. 159 ( 1951 )

MR. JUSTICE ANGSTMAN:

(concurring in part and dissenting in part).

I agree that the judgment entered on the jury’s verdict in favor of plaintiff for the condemnation of the land should be sustained.

I disagree with the foregoing opinion so far as it holds that defendants are not entitled to attorney’s fees from plaintiff. I agree that “costs” can be recovered only when provided for by statute. Albrecht v. Albrecht, 83 Mont. 37, 269 Pac. 158, and eases therein cited. I agree likewise that attorney’s fees are not a part of the taxable costs in the absence of a statute or agreement authorizing them. In re Mickich’s Estate, 114 Mont. 258, 136 Pac. (2d) 223. Those are interesting observations but they do not affect the question before us.

My position is that both the Constitution, section 15 of Article III, and the statute, R. C. M. 1947, secs. 32-1401 and 93-9923, require the person to be benefited by the opening of the road to pay not only all damages found by the jury to have been sustained by the owner of the land taken by the condemnation proceedings, but also “the expenses of the proceeding”. The word “proceeding” obviously means the condemnation proceeding. The only question before us is, are attorney’s fees a part of the expenses of the proceeding.

We also have a statute awarding costs in the discretion of the court: R. C. M. 1947, sec. 93-9921.

It is apparent, therefore, that sections 93-9923 and 32-1401 covering expenses of the proceeding, have reference to something more than the taxable costs in the action.

It is clear from our Constitution and statutes that a person who has his property taken from him against his will should be indemnified for expenses incurred in resisting the condemnation proceedings or in the proceedings for ascertaining the compensation to be paid. Compare: City of Brooklyn v. Long Island Water-Supply Co., 148 N. Y. 107, 42 N. E. 413; Oneonta, etc., Co. v. Schwarzenbach, 164 App. Div. 548, 150 N. Y. S. 76.

Are attorneys’ fees properly considered as “expenses of the proceeding ’ ’ ?

Actually attorneys’ fees are an expense in such proceedings and quite often, if not always, the principal item of expense. The meaning of the word “expenses” depends upon the connection in which it is used, and the end to be attained by the statute in which it is used. Burrage v. Bristol County, 210 Mass. 299, 96 N. E. 719; and see, Pittsfield & N. A. R. Corp. v. Boston & A. R. Co., 260 Mass. 390, 157 N. E. 611.

“The determining factor is whether the Legislature may fairly be said to have anticipated that proceedings of a legal nature requiring the services of an attorney would be necessary.” Triple Cities Const. Corp. v. Byers Machine Co., 172 Misc. 519, 15 N. Y. S. (2d) 89, 91, and eases there cited.

Here it is clear that when the Constitution and statutes refer to “expenses of the proceeding” they have a direct reference to proceedings in court to establish the necessity of the taping and the damages.

In Taylor v. Chicago, M. & St. P. Ry. Co., 83 Wis. 645, 53 N. W. 855, 856, a condemnation case, the statute involved entitled the landowner to the costs and expenses of prosecuting the condemnation proceedings. In holding that this included attorneys’ fees the court said: “We are of the opinion, and so hold, that the provision of the statute which entitles the plaintiff to the cost and expense of prosecuting the condemnation proceedings when the company, by its neglect or omission, has compelled the plaintiff to institute the same, (Rev. St. sec. 1852), is not limited by what would be taxable costs in an action. If such was the intention of the legislature, we think the term ‘and expense’ would have been omitted.”

In the case of In re Mason, Mo. App., 203 S. W. (2d) 750, the question presented was whether attorney’s fees were comprehended within the words “collection expense.” The court answered in the affirmative and cited a number of cases supporting its conclusion, including the case of Wood v. Ferguson, 71 Mont. 540, 230 Pac. 592, 594, wherein this court held that “costs of collection” is synonymous with “attorney’s fee.”

“Expenses of recovery” include attorneys’ fees. Martineau v. Waldman, 93 N. H. 386, 42 A. (2d) 735, 736. “Expenses of the suit” cover attorneys’ fees. Glens Falls Indemnity Co. v. Dempsey, 68 Ga. App. 607, 23 S. E. (2d) 493, 495. “Expense or cost of making a defense” is sufficiently comprehensive to embrace attorneys’ fees. Curtis & Gartside Co. v. Aetna Life Ins. Co., 58 Okl. 470, 160 Pac. 465, 467. A statute providing for “fees and expenses” in a will contest includes attorneys’ fees. In re Nolan’s Estate, 56 Ariz. 353, 108 Pac. (2d) 385, 388. A statute awarding “costs and expenses” to one who suffers loss or injury through contempt embraces attorneys’ fees. Foreman v. Foreman, 111 Utah 72, 176 Pac. (2d) 144, 151; and Davidson v. Munsey, 29 Utah 181, 80 Pac. 743, 744. In the last cited ease the court said: “It would seem that the Legislature, by making use of the word ‘expenses,’ and associating it with that of ‘costs,’ intended that something more than the usual or ordinary costs that are allowed to the prevailing party in civil actions generally might be allowed where the court proceeds under section 3368 * * “Attorney’s fees” is comprehended in the words “damage” and “expense” by reason of and on account of suit as used in an indemnity bond. Employers’ Indemnity Corp. v. Southwest Nat. Bank., Tex. Civ. App., 299 S. W. 676. Expenses in relation to property as used in a chattel mortgage covers attorneys’ fees. Haczela v. Krupa, 219 Mass. 261, 106 N. E. 1004.

In Robertson v. Cooper, 4 Cir., 46 F. (2d) 766, 769, the court had before it the question of whether traveling expenses of an attorney were comprehended in the meaning of a Federal Statute allowing “expenses of the proceeding” in a patent proceeding. The lower court held that the Federal Statute was simply treating of “costs.” The court of appeals held otherwise, saying: “The judge below, seemingly upon the ground that the allowance of expenses might lead to serious abuses, refused to pay the expenses of the attorney to California, and held that the word ‘expenses’ in the statute practically meant ‘costs.’ We cannot concur in this conclusion. The evident intention of Congress in the use of the word ‘ expenses ’ was to include more than that which is ordinarily included in the word ‘ costs. ’ ’ ’

In Re Ehret’s Estate, 158 Misc. 308, 285 N. Y. S. 570, it was held that the “expenses of action” as used in a statute means expenses to attorneys in connection with the prosecution of the action.

In Re J. A. Rudy & Sons, D. C., 30 F. Supp. 8, it was held that attorney’s fees constitute an “expense of administration” as those terms are used in the Bankruptcy Statute. To the same effect are In re Coventry’s Estate, 178 Misc. 620, 34 N. Y. S. (2d) 619; United States v. Security-First Nat. Bank of Los Angeles, D. C., 30 F. Supp. 113; and see: Lang v. Shell Petroleum Corp., 138 Tex. 399, 159 S. W. (2d) 478; Morton’s Estate v. Ferguson, Tex. Civ. App., 45 S. W. (2d) 419; In re Thomasson’s Estate, 350 Mo. 1157, 171 S. W. (2d) 553, 557, holding that attorneys’ fees are an “expense of administration”.

We have frequently held that attorneys’ fees are included in the word “damages” in mandamus proceedings. State ex rel. Lynch v. Batani, 103 Mont. 353, 62 Pac. (2d) 565; State ex rel. Shea v. Cocking, 66 Mont. 169, 213 Pac. 594, 28 A. L. R. 772; State ex rel. Gebhardt v. City Council, 102 Mont. 27, 55 Pac. (2d) 671; State ex rel. Snidow v. State Board of Equalization, 93 Mont. 19, 17 Pac. (2d) 68, 18 Pac. (2d) 804.

The case of Kendrick v. Powell, 119 Mont. 622, 178 Pac. (2d) 859, wherein reference was made to section 93-9922, had to do with a case wherein plaintiff who sought to condemn the land was unsuccessful. In such a case we held that neither the Constitution nor sections 32-1401 and 93-9923 have application. New York with an identical constitutional provision takes the same view. In re Nagy St., 99 Misc. 314, 164 N. Y. S. 537. In consequence in that case it was proper to refer to section 93-9922.

Here we are dealing with a case wherein plaintiff was successful and he is the one to be benefited by the opening of the road and to him both the Constitution and the statutes apply. While referring to the Kendrick case, it is well to note that the fear expressed in the specially concurring opinion therein that to allow expenses to one of the parties and not to the other might pose serious constitutional questions is likewise groundless. Dohany v. Rogers, 281 U. S. 362, 50 S. Ct. 299, 74 L. Ed. 904, 68 A. L. R. 434; Gano v. Minneapolis & St. L. R. Co., 114 Iowa 713, 87 N. W. 714, 55 L. R. A. 263. I think it cannot be said that the words “expenses of the proceeding” under our Constitution and statutes is synonymous with the word “costs” and in my opinion the “expenses” wer.e intended to cover attorney’s fees.

The principal case relied on in the majority opinion is that of Chapin v. Collard, 29 Wash. (2d) 788, 189 Pac. (2d) 642, where no such constitutional or statutory provision was involved such as we have here. The same is true of Wormely v. Mason City & Fort Dodge Ry. Co., 120 Iowa 684, 95 N. W. 203, which simply holds that “costs” do not embrace attorneys’ fees and with that result I have no quarrel. I also agree with the cases of North American Realty Co. v. City of Milwaukee, 189 Wis. 585, 208 N. W. 489; City of Waterbury v. Macken, 100 Conn. 407, 124 A. 5, and other cases relied on in the majority opinion which hold that the costs and expenses in a condemnation suit are not a part of the “just compensation” to which the owner is entitled within the meaning of Sec. 14, Art. Ill of our Constitution. But those cases are beside the point here. None of them holds that attorneys’ fees are not a part of the expenses of the condemnation proceedings. The case of McQuade v. Richland Water Co., 39 Pa. Co. Ct. R. 587, so strongly relied on in the majority opinion, reached the result it did because of the history of the particular statute in question. The court referred to prior decisions allowing an attorney’s fee of $3.00 and based its opinion upon a refined distinction between attorneys’ fees and counsel fees. It actually allowed attorneys’ fees but not counsel fees.

The case of Delaware, etc., Co. v. Fengler, 288 N. Y. 141, 42 N. E. (2d) 6, relied on in the majority opinion, simply held that the expense of acquisition of land did not cover attorneys’ fees because it was not contemplated that acauisition embraced condemnation proceedings in court. Here the contrary is true because both the Constitution and statutes are dealing with condemnation suits. To say that the expenses of the proceeding are those contemplated by section 93-8618 renders section 93-9923 meaningless for section 93-9921 covers the costs mentioned in section 93-8618.

I think the framers of the Constitution clearly contemplated the expenses of a condemnation suit included the principal item of expense, viz., attorneys’ fees. If they had reference only to the taxable costs, it would have been easy to so state. I think defendants under the Constitution and statutes are entitled to have paid to them the expenses of the condemnation proceeding which in my opinion includes attorney’s fees which they were forced to expend in resisting the proceedings and in having their damages ascertained.