141 Ga. 748 | Ga. | 1914
(After stating the facts as above.)
The third section of the act under consideration is not material-to a consideration of the questions involved in'this case. The act is attacked on the ground that it violates paragraph 1 of section 4 of article 1 of the constitution of the State (Civil Code, § 6391), which provides that “Laws of a general nature shall have uniform operation throughout the State, and no special law shall be- enacted in any case for which provision has been made by an existing general law.” The general law which, according to the contentions of the petitioner, makes provision for condemnation of real property and the title or interest to be acquired therein, is to be found in an
The general law provides as follows, in regard to the quantum of interest which can be condemned: “Upon the payment, by-the corporation or person seeking to condemn, of the amount of the award, and final judgment on appeal, such corporation or person shall become vested with such interest in the property taken as may be necessary to enable the corporation or person taking to exercise ■their-franchise or conduct their business; and whenever the corporation or person shall cease using the property taken for the purpose of conducting their business, said property shall revert to the person from whom taken, his heirs or assigns.” If this act of July 27, 1909, had conferred upon the City Council of Augusta authority to condemn any real estate “for enlarging, extending, or improving the water system of said city, or for the protection of said city or county from damage by floods and freshets, and for other purposes,” a lawful condemnation of property would, under the general law above quoted, have vested .in the city such interest in the property taken as might be necessary to enable it to exercise the franchise or conduct the business involved. The attack upon the act is not merely one of form, but involves substance. If in a particular instance the legislature could declare that one corporation may acquire by condemnation a fee-simple title to property, while under the general law all other corporations can acquire only such interest as is necessary, subject to reversion when the corporation shall cease to use the property for the purposes for which it may be taken, a discrimination is made in favor of one corporation against another. In no other city in the State can the corporate authorities condemn and take from a citizen for a public use a fee-simple title to his property. They can condemn and take such interest as may be necessary for the public use, and the right of property in the citizen is subject to the general public use to that extent. But if the public use should cease, why should the City of Augusta retain the fee-simple title to the property of the' citizen while no other corporation could do so ? While the .argument proceeded as if this act dealt only with the public necessity for protection against damage by floods or freshets, in point of fact it goes far beyond
This repugnancy to the constitution renders the act void. If we could clearly deduce from the act of July 27, 1909, the intention to confer upon the City Council of Augusta the right to take property under condemnation proceedings for the purposes mentioned in the act, without reference to the title or the amount of interest which should be acquired in such proceeding; that is, if it were clear from the reading of the entire act that the title which would be taken under such condemnation proceeding was not an essential part of the legislative scheme, then we would apply the well-established principle that when a statute can not be sustained as a whole, the courts will uphold it in part when it is reasonably certain that to do so will correspond with the main purpose which the legislature sought to accomplish by the enactment, if, after the objectionable part has been stricken, enough remains to accomplish that purpose. But it must be clear, before this rule is applied, that the purpose in the legislative mind at the time of the enactment of the law will be accomplished even though the part of the
On behalf of the plaintiffs in error it was urged that the acquirement of a fee-simple title is so interwoven with the legislative intent that it can not be segregated and held unconstitutional and still leave a valid act authorizing the acquirement of such interest as might be necessary in accordance with the general law. This, it was contended, is manifest, both from the language in the body of
If, however, the act could be so construed as to include two distinct powers of condemnation for the purposes mentioned — one the power to acquire by condemnation the fee-simple title, and the other the power to condemn for the public purposes stated and acquire the interest authorized to be acquired by the general law, — then'the plaintiffs met this possibility by setting up in their petition that under such construction the act would contain matter not covered by the title or indicated therein, and thus would be invalid under another section of the constitution (Civil Code, § 6437), inasmuch as the title was limited to the authorization of the municipal authorities to acquire by condemnation or other proceedings fee-simple title to real property for the purposes mentioned. Thus, if by construction the act should be made to escape the one constitutional provision, it would immediately be driven into destruction against the other. Judgment reversed.