100 Ga. 182 | Ga. | 1897
The 60th section of the act of 1874, establishing a new' charter for the City of Atlanta (Acts of 1874, p. 131), con
In October, 1890, the city authorities began proceedings to condemn certain property of the Austell estate for the purpose of widening Edgewood avenue. Assessors, however, were not appointed until January, 1891, after the passage of the act of December 2lth, 1890, amendatory of the act first above cited. See Acts of 1890-91, vol. 2, p. 446. Under this latter act, the first duty of the four assessors appointed by the parties at interest is to take an oath “faithfully and impartially to perform the duties for which they were appointed.” The act then provides, that “immediately after taking and subscribing to the oath aforesaid, they shall, before proceeding to the consideration of the question submitted, select a fifth assessor, who shall act as umpire, and take and subscribe to the oath prescribed for assessors, as above stated.”
In the proceeding above mentioned, the city authorities selected two' assessors; the representatives of the Austell estate two assessors; and the four thus chosen, before taking any oath at all, selected an umpire. All five then, at the same time, took and subscribed an oath to “faithfully discharge their duties, respectively, as assessors, as aforesaid,” and to “truly and faithfully assess the damages sustained, if any, in consequence of the widening, opening or extending of Edgewood avenue, aforesaid.” The assessors
1. It is obvious that, in so far as relates to the selection and qualification of the assessors, the present proceeding was not in conformity to the act of 1814; for, under its terms, there was in no event to be an umpire unless the four freeholders originally appointed had already disagreed as to the matters referred to them. It will also have been observed that the oath taken by the assessors was not that prescribed by the act above mentioned.
2. Hor did the course pursued conform to the act of 1890, which, as has been seen, was passed after the proceeding was instituted, but before the assessors were selected. This act declares that there must in all cases be a fifth assessor, or umpire, and as to this matter is imperative without regard to any question of disagreement among those selected by the parties. The act also requires the assessors thus chosen, before they choose the umpire, to take an oath “faithfully and impartially to perform the duties for which they were appointed.” In the present case, there was a failure in two re
It was earnestly argued here, that the oath actually taken was in substance the same as that required by the act in question. It is unnecessary, however, to determine whether this contention is sound or not; for, in our opinion, the omis- , sion of the four assessors to qualify before choosing the umpire rendered the entire proceeding nugatory. It was of the very utmost importance, both to the property owners and to the city, that this fifth assessor should be impartially selected; and the plain purpose of the statute was to require those by whom he was to be selected to take an .oath that they would be impartial in performing this, their initial duty in the premises. It is no part of the business of this court to •consider whether such a legal provision was or was not necessary. The General Assembly evidently thought it was, .and if in the opinion of that body a requirement of this kind was wise and proper, it is our duty to enforce the same. •Surely, there is no reason why we should presume to ignore it, or permit the municipal authorities of Atlanta to do so.
3. It follows from the foregoing, that the board which acted in the present case had no lawful authority to assess the damages, for the plain reason that they were wholly without jurisdiction to do so, because not constituted in conformity to law. Condemnation' statutes must be strictly construed. If the method to be pursued is prescribed by statute, it must be closely followed, and an attempt to exercise the right to condemn .in a different manner will be ultra vires and void. This is well settled law, and really does not require the citation of authority to support it. Nevertheless, we quote the following from 2 Dill. Mun. Corp. (4th ed.) •§§604, 605: “Not only must the authority to municipal corporations or other delegated legislative agents, to take •private property, be expressly conferred, and the use for
4. The entering of the appeal by the owners of the Austell property did not estop them from making, in the superior court, a motion to dismiss the entire proceeding on the ground that the tribunal appealed from was without jurisdiction. The superior court, in such a case, has appellate-jurisdiction only. If the inferior judicatory had no jurisdiction, the superior, court could acquire none, nor could it properly assume to deal with the case at all, except to strike-it from the docket. An appeal may waive irregularities; it never vitalizes. The cause being dead when the lower tribunal dealt with it, it was still dead after it reached the superior court, and all that court could do was to bury it. Appellate jurisdiction to deal with the merits of a case on appeal applies only to a cause brought from a lawfully constituted and organized court. “Where the trial court has no jurisdiction of the subject-matter of a cause, the appellate court has none,' except to annul by reversal the illegal proceedings below. It cannot remand the cause to the trial court, nor retain the cause for further proceedings.” 2 Ene. of PL & Pr. p. 23, and cases cited. In this connection, see
It makes no difference by what party the attention of the com’t is called to' the question of its want of jurisdiction in the premises, its duty being simply to decline taking any action in such a case, except, as expressed in the colloquial phrase, to “throw it out of court.” Our case of Reynolds v. Neal, 91 Ga. 609, is clearly distinguishable from the case at bar, because there the court appealed from was not without jurisdiction of the subject-matterj and the appellee having acquiesced in the appeal as duly taken, and raising no question touching the validity of the judgment below, it was held that the appellant, by entering the appeal, recognized the judgment as the basis of it, and as something needful to he appealed from. In the present case, the hoard of’ assessors had no jurisdiction to do anything, and the whole ■ proceeding was coram non judice.
Judgment reversed.