*1 absolute was of mandamus grant of the writ subsequent nugatory. except Duck- concur, All
Judgment the Justices reversed. dissent. Candler, J., who J., and worth, C. ATLANTA et al. et al. v. OF
19906. WOODSIDE CITY Argued 13, November 1957 Decided March Rehearing denied. March 21, 1958. White,
Houston plaintiffs in error. Eugene Cook, Attorney-General, Miller, Paul E. J. Summer- our, Hogg, Deputy Assistant John E. Attorneys-General, Assist- Attorney-General, parties ant Harold Sheats, interest, at parties record. Savage, Bloodworth, Edenfield, Henry M. B. Newell L.
J. C. J. Bowden, Matthews, Wiggins, Ferrin Y. Robert S. Martin McFar- Mitchell, Anderson, & Ben F. Sterne, Edwin L. Clarke land, Jr., Deputy Attorney-General, Assistant Johnson, contra. Chapter provisions 36-11 Justice. Pursuant Candler, legislature an act which as amended of the Code (Ga. 1937-38, Sess., p. 251), L. Ex. passed in 1938 realty, rem to condemn certain proceeding in filed a Atlanta necessary for the of it was acquisition alleging that of the North-South Expressway from Baker Street to Memorial Among Drive. those named as defendants were John J. Wood- Jr., John side, J. Storage Woodside Company, and several Inc., other persons named who are petition described as lien- portion claimants to a proceeds. duly Assessors were *2 an selected, and award parties was made after the fully been had heard. The award timely as thus made was filed with and Clerk Superior recorded of the County. Court of Fulton The condemnor, dissatisfied with the amount of the award and within the time allowed therefor, filed appeal jury its to a proper County. in the Fulton Thereafter, John J. Wood- side, Jr., Storage and John J. Co., Inc., Woodside filed a motion ground appeal to dismiss the on the that the amount of the paid assessors’ award had not been tendered them to into the prior of the court for their benefit to or at the time of filing appeal, payment that such tender or and was a precedent right appeal condition to the condemnor’s to enter alleges great jury. length a The motion as amended at injury, damage, inconvenience, rights and loss of property substantial consequence have pending which the movants sustained against proceeding their but the condemnation amended alleges condemnor .has taken physical that the actual motion possession of the involved. amended motion to dis- appeal stricken, exception miss the is to that judgment. during our consideration of the in banc and instant
While
jurisdiction
question concerning
arose,
this court’s
case,
always
with or
question
determine,
which we must
that
Maxwell,
Brockett v.
party.
without motion
trans
case must be
E. 2d
And since the instant
does
Appeals for
if this court
the Court of
decision
ferred to
dispose
deal
of that
it, we
with and
jurisdiction of
will
have
2, paragraph 4
By
6, section
Con
article
question first.
jurisdiction “in all cases that
court has
stitution of
the Constitution of the State Geor
the construction
involve
(Ann.)
2-3704.
words
the United States.”
gia or of
§
con
etc.,
employed,
thus
Constitution,”
“construction
meaning of some
where
template
doubtful either under
question and
directly Constitution
its
terms
own
or under the decisions of this court or the decisions
Supreme
Paving
Court of
United States.
v.Co.
Gulf
City Atlanta,
374); Thompson
State,
citations.
the instant
jury
motion
dismiss the condemnor’s
to a
superior
squarely
court was based
proposition
pay
on the
compensation
ment of the
assessors’ award
precedent
involved was a condition
condemnor’s
To
prosecute
appeal.
file and
decide that
which is
necessarily con-
directly presented by
error,
the writ of
we must
meaning
strue and
such construction determine
of article
3, paragraph
(Code,
the Constitution of
section
this State
private property
Ann., 2-301), which declares
shall not
just
adequate
damaged,
public purposes, until
taken or
Does
to the owner.
compensation
it is first
only
payment
must
mean
taking in
precede
toto
owner’s
an actual
payment
just and
use,
it also mean that
for a
or does
*3
of
some substan-
compensation
precede
must
adequate
in
far
an owner has
his land? So
as
right
property
of
which
tial
had for decision a case
find, this court has not
we
been able to
have
directly presented, but several deci-
question
exact
was
where
language
by
strongly
do contain
rendered
which
sions
guarantee
payment
constitutional
of
that our
before
indicates
public
“taken” for a
use
is
can be
means and
private property
taking in toto of the
an actual
owner’s land.
to
limited
City
Atlanta, 100
Hurt v.
cases is
Among such
'taking’
“The
referred to in
con-
it was said:
65),
S. E.
where
a physical,
under consideration means
paragraph
stitutional
property
case,
of another.”
That
appropriation
tangible
city’s
private
right
take
property
to
however, did not involve
owner
paying
use without
brought by
an
it;
action
Mrs. Hurt
it was
Atlanta,
damages allegedly
recover
against
consequence
acts which diminished the
by her in
sustained
consisting
fronting
her,
a lot
realty owned
certain
value of
building thereon. The
of her
nature
and a
Forsyth Street
on
following
from the
condensed
readily apprehended
case will
city
had,
express
in 1892
under
the facts.
statement
legislative authority,
longitudinally
caused to be constructed
Forsyth
bridge
spanned
railway
Street
number of
bridge
tracks. The
width of the
coincided with that of
adjacent sidewalks,
street and the
all
occupied
and it therefore
public thoroughfare upon
which Mrs. Hurt’s
abutted;
part
it did
her
land,
but
not encroach
and no
building
actually
her
appeared
land or
taken from her.
It
bridge
ingress
from the
that the erection of the
evidence
rendered
egress
building
formerly
from her
less convenient than
value;
consequently
appeared
diminished its rental
but it also
that, independently
causes,
all
other
market value of the
considerably
as a whole was
enhanced
and because
bridge,
making
erection-of
alterations in
adjust
building
properly
bridge,
so as
it to the
would,
allowing
even after
for the cost of the needed changes, and tak-
ing into account an increase in the value
the land, pay
higher percent
rents a
on her investment than before. The case
defendant,
resulted
a verdict for the
and this
affirmed a
judgment denying her
new trial.
language
from the
opinion in
case,
quoted above, is,
course,
purely obiter
dictum,
as when
“taken” within
meaning
Constitution,
our
Augusta
which was not
Austin v.
involved.
Ry.
Terminal
Co.,
79 by should entertained this jurisdiction present be case determining our constitutional purpose court for the what just adequate compensation provision requiring payment of taken for a private property to the before can be owner (54 2d State, Ca. 547 S. E. actually use Crumb v. means. jurisdiction for the entertained 639), is a case where provision of Federal Constitution. purpose construing a and this misdemeanor, There the was convicted a accused jurisdiction entertained concurring, all of the Justices a proper only jurisdiction his basis for such case when the Amendment to the Constitution Fourteenth contention the clause It was Crumb’s United States. systematic to did not a referred allow Constitution of their race color. jury exclusion men from service because complete that reason- case is so analogy present Its question why a constitutional can offered argument able raised and that no con- there give jurisdiction was sufficient to us presented. purpose here stitutional sufficient of error to dismiss the writ the motion is no merit in There prematurely sued If the ground on the it was out. trial to dismiss the condemnor’s judge had the motion sustained disposi been final jury, have judgment to a his would case, (Ann.) and, provisions tion under the of Code 6-701, § judgment may of that character reviewed on v. exceptions. Roberts, direct bill of Newton Ga. 505), However, and the cases there cited. mandamus many
quo warranto cases
court has
times held that the law
general
exception
permitting
rule
a direct bill of
makes an
exceptions
judgment which, though
not final
decision or
disposition
final
of the case
itself,
within
have been a
if it
would
plaintiff
in error. See
had been rendered as claimed
Bridges
Poole,
noBut
statute
been called to
attention,
none,
has
our
we find
which makes
purports
any exception
general
to make
laid
rule
down
(Ann.)
ruling
6-701
a condemnation
Hagans
Membership
Corp.,
Excelsior Electric
authority
position
is not
of the defend
exception. that there is
ants
error
that case was
exceptions
prematurely
bill of
had
been
sued
held that the
*5
out, and a motion to
dismiss was denied. There,
again
it was
held that a
exceptions
bill of
any judgment
will lie to
which, if
ruled
as contended
plaintiff
error,
would
consti-
have
tuted a final determination of the cause. We have examined the
Denham
Highway
cases of
v. State
Board,
App.
(184
52 Ga.
S. E. 631), and Stewart v. Board
Commrs.
County,
Echols
(17
App.
203);
rulings
since we think the
directly
there made are
provisions
conflict with the
(Ann.)
6-701, and for that
unsound,
reason
we
decline
See,
follow them.
connection,
Martin v. Fulton County,
716).
As out in this the Constitution emphatically of this State declares that cannot public be taken for a use until paid just the owner is first adequate compensation for it. This of the Constitu paramount any legislative tion so mere enactment many years legislation respecting operation was considered Highway unnecessary. Harrison v. Department, State 445). This voice is man- Constitution datory, elementary legislature it is neither the nor any right restrict, evade, courts have violate it in the slightest degree. taking private property public for a use high power, taking the exercise of a and before such can be constitutionally accomplished prerequisites complied all must be Cairo, strictly. Thomas with comply spirit 2d To both in letter and con- requirement, payment of stitutional com- always precede must pensation to the owner of his So, necessarily, a public for a use. decision of case meaning of the word “taken” depends on the as that word in hand Constitution with which are of our we used only that it dealing. The condemnor insists means an actual now land taking in toto of the owner’s use. physical only it not means actual contend eondemnees means the land, but also sub- taking of the owner’s an owner in his land. The right has stantial respectable authority, some supported of each is contention language can be found fin some that obiter must confess we support does both of them. of this court which decisions But our constitutional provision emphatically declares that private property cannot be taken for a use until the owner thereof is for it, holding and a this court that some substantial element or some substantial incident property can be so taken from the paying owner without first *6 him for his property would do violence to the and very purpose defeat the which the framers of our Constitution they placed had in mind when in that it instrument. The same constitutional which prohibits the taking of property the owner in public for a toto use until he is first prohibits for it any likewise the right substantial which the owner has in land,.it his the axiomatic that whole parts. includes all of its While the Constitution of this State expressly right declares an exercise of of eminent domain abridged Ann., shall never be (Code, 2-2501), also declares it just emphatically right as that an exercise never carries power private property public with to take it for use paying just adequate compensation without first and owner for it. May 1957, this case on 8, and through its condemnor,
mayor of aldermen, and board property decided to take here necessary public use; involved and, for shows, as the record questioned do is not challenged anyone. so by On May 10, 1957, against it filed a proceeding for the purpose subjecting it to 28, servitude. 1957, On June assessors, had been way provided who selected in manner and by compensation law, made an award of for it, such award and Superior was Clerk of County filed with the Court of Fulton by required by and him recorded as law. condemnor de- the amount of the award clined to tender to the owners pay their benefit, it'into the but filed an jury Superior County. of Fulton appeal to a Court Does private property amount to a for a use within provision respecting meaning constitutional that sub- of our purpose does. On its motion for the ject? think it own and We fixing pay amount which it ascertaining and should compensation it decided to had proceeding instituted the which the law take, the condemnor proceeding, and that after the purpose; supplies 82 parties fully heard, had been
had been and all interested viewed for the award, fixing resulted in an have assessors, impartiality, intelligence, integrity whose award, which was filed questioned. assessors’ been superior pro office of the clerk of the court as recorded in the judgment by competent is a 36-508, tribunal vided Code § rights parties pro to fix in law and liabilities ceedings things reference to the matters involved. (9 Co., 1086); Ga. 257 E. v. Union Point W.P.R. 83 S. Oliver (69 561); Nolan, 443 E. Power Co. v. 135 Ga. S. Ga. Central (149 Ry. Co., 169 Ga. Thomas v. Central Ga. 2d Georgia Fountain, Power 884); Co. Construction Ga. McGreggor Co., Florence 454); v. W. L. Highway 809); Board, Cable v. State S. E. 2d supra, p. In the Oliver sworn, are to hear assessors unanimously said: “The three majority evidence, assess and then the concurrence damages. writing be filed in Their award value *7 and re- superior him the office the clerk of the of or corded, judgment it the force and effect a after which has supra, superior court.” And in the Cable decree the concurred, and was all members of the court where there where was validity award, it a attack on the the assessors’ collateral irregular erroneous, 2: “If assessment is or held headnote the upon the must be and set aside in a direct attack vacated the authority ruling, this cited As award.” court. case, supra, Thomas and other decided two cases dismiss respecting judgment, a cannot And such condemnor legal proceeding destroy and its his condemnation such act Georgia Co.; Oliver v. Union Point & Central effect. W.P.R. Nolan; Georgia Fountain; supra. Power Power Co. v. Co. v. all “just adequate” proceeding and Consequently, stage at that by judgment fixed property involved was longer instance, or decree and it could at condemnor’s pay ground its that value excuse failure to for it on the its con to the unascertained. At that it should have tendered time paid property, it into demnees the assessed value of the accept it, since on refusal to of the court their hold that adjudicated we recorded value award payment such tender or precedent was a condition to its right to a jury; it could not at time pay that refuse to the amount awarded for the and at the time same right insist position wholly to take it. Such a incon- sistent with the payment just constitutional adequate compensation always precede taking. must a 36-104, right Section . . eminent declares providing domain cannot be exercised without first com- pensation to the owner for the interference with his exclusive rights.” 'property’ very And comprehensive one, “The term only signify things and is personal owned, used not real and but designate right subject ownership that which Wayne enjoyed.” Hartridge, Ga. 127, owned and comprehends only “The term [property] legal rights thing possessed, also, parlance, in strict means the but thing; right of a person in relation to land or a owner dispose it, corresponding and the possess, use, enjoy, 18 Am. Jur. right to exclude others from the use.” 156. § anyone seriously We do not think could or would contend prosecuted has been proceeding to condemn land which greatly present extent of the does not interfere with and one rights in and to a restrict the owner’s to the same and right enjoy it; his large deprive extent him of to use and as tak- many jurisdictions, other “taken” is construed the word compensation must be first does ing property for which taking, may consist in an inter- but require an actual ownership, enjoyment, use and rights ference with connection, See, C.J.S. property. incident to other 134 Ohio Co., Erie R. St. 917, 110. Smith early cases in this said: “In some N. E. 2d it was conception adhering to country, courts, *8 con alluded to state owned, the thing construed the appropriation altogether,’ an and dis 'taking to be stitutions the deprived corpus him of the owner, the possession accordingly. The limited compensation property property to generally, conceives obtains now view, which broader owned, owner thing the and the owner of the the interest use, exclusion and dis rights the the owner ship to afford be a there need not this broad Under position. of the or even dispossession; any sub- stantial the rights interference with elemental growing out of ownership taking.” is considered a In the circumstances the stated, reason above judge should trial have dismissed the condemnor’s appeal; it do was error not to so.
Judgment reversed. All the Justices concur, except Wyatt, P.J., Almand Mobley, who JJ., dissent.
Head, Justice, concurring. right 1. The of eminent domain right of the reassert, State temporarily per either or manently, dominion over lands within the State. 36-101. § right may agencies corporate asserted State, when authorized law. Code bodies 36-103. The Consti § provides right tution that the of eminent domain shall never be abridged prevent or so Assembly construed General taking property Constitution, franchises for use. Art. 2-2501). Par. I IV, II, (Code, Ann., Sec. There can be no § private property “just taking of uses without paid.” Constitution, I, Art. 2-301). Ann., State, I Ill, (Code, Par. Neither the Sec. § any corporation exercising Government, Federal nor except by pro domain, private property can “due eminent take Constitution; Amendment, Georgia Fifth cess of law.” Federal 2-103). I, (Code, Par. Ill Ann. Constitution, I, Art. Sec. approved Assembly January 13, By General act 251-255), (Ga. provisions of Code 1937-38, Sess., pp. Ex. L. persons “exer to include all were extended Chapter 36-11 chapter provides domain,” which right of eminent cising the sought to be against in rem the described proceedings City Atlanta, having In the present case condemned. Georgia City (Marist Society Atlanta, to do right so petition condemn “the 564), filed its fee E. 2d 115, 90 S. plaintiffs error, con described lands title” to simple fixing and made award appointed Assessors were demnees. the condemnees. Thereafter compensation to be amount amount of the award con tendering city, without court, filed into paying it demnees, filed motion to dismiss condemnees jury. appeal 36) (in that the consti- paragraph alleged appeal, wherein
85 provisions tutional of the State Constitution heretofore cited require amount “of the award of the either assessors first tendered and paid to condemnees, said or the amount of said paid award into registry court,” the consti- provisions tutional cited deny appeal jury to a the award “without simultaneously therewith or within said ten- day period” allowed appeal for “paying the amount of said award registry into the of this court.” ruling
Under the of this court in Jarvis v. State, Ga. 197 704 (30 S. E. 484), 2d Franklin Mobley, Ga. S. E. 2d 755; and McGill v. Ga., State 548); paragraph 36 of the motion to question dismiss made a for con- struction of the requirement constitutional “adequate for com- pensation being paid.” paragraph first 37 of the motion to dismiss, it is contended that, if stated Code sections “be con- strued permit” appeal without the amount of the award to. paid tendered and or condemnees into court, they contrary are paid” provision the “first Having previously Constitution. invoked provision that compensation shall be paid, first it is immaterial whether this contention is meritorious. may
2. private propérty Since pur taken for by poses except process law,” “due “shall not be taken or damaged public purposes without com for, pensation being paid,” the real determination present case is whether or not condemnees resulted from a filing superior in the office of the clerk of award the assessors provided by law. (Code 36-11), providing Ch. a condemna- The act of rem, the city and under which act filed tion January (Ga. approved 13,1938 amended the act petition, was. 251-255); and amendment it is pp. Ex. 1937-38, Sess., L. 36-6, pro- providing 36-2 to a method Chapters provided repealed, property, are not the condemnation cedure supplementary are thereof 1914 and 1938 acts of that the but “If provides: be entered 36-604 Code thereto. filed, seeking or the persons if days after award within the amount of award pay final fail shall condemnation judgment, the shall clerk issue execution award judgment, may upon any corpora- be levied property of the person condemning.” tion or
Construing this section, Thomas Central Ry. Co., a full-bench deci *10 sion, that, held where an award of assessors was made and not paid, and no filed appeal was such award, duty it was of the clerk to issue an the award, execution on and that execution would not be defeated because the condemnor had upon endorsed an order of dismissal its given notice in connec proceedings upon tion with condemnation award. opinion may by In “It true that it is said: an award asses judgment court, sors in such is not a rendered but by cases a it by a judgment competent is a rendered tribunal which is to- fix rights parties proceedings of the with liabilities things reference to the matters and involved.” part: it in “It Code 36-1111 is said shall be within the § upon payment of the power court, of the award verdict into registry adjudge a condemnation of the court, title part: in simple, And 36-1113 it said in fee . . § paid had “After condemnation is and the fund into shall petitioner not be concerned [condemnor] proceedings ap- by subsequent unless with or affected as hereinbefore peal from the or award allowed.” verdict judgment alone is a standing as If an award assessors of an execution support the issuance will authorize and support judg- as a determination will collection, and is such a simple, how by is condemned fee that the title ment prop- of assessors is a said an award can it be requiring that the Constitution erty within the statutory paid? Our law shall be issuance of an execution as not authorize and Constitution do Executions are proceedings. issued judicial preliminary a fixing competent tribunal only judgment after provided law. manner parties (Code 36-11), and in condemna- Ch. of 1914 the act Prior to (Code 36-6), Chs. of 1894 the act under proceedings tion 36-2— provisions of to the Code reference particularly more “In that, to condemn order by this court held 36-302, it §
87 purposes, preliminary necessary, commencement of the proceeding, for the condemnor to make an agree price effort to with the the property upon owner of to be City (1) for the land.” Atlanta v. 146 Austell, Ga. 456 (91 478). City Hobbs, S. E. To the same effect see Elberton v. 780); Ry. Piedmont Cotton Mills v. 750 S. E. Ga. (4) (62 Co., Housing &c. Ga. Barber v. 52); Authority Ga. Borne, 189 S. E. 2d 425); Highway Dept., Miller v. State (Code provides
The act of
Ch.
36-11),
amended,
condemnation in rem is allowed in
the con-
those cases where
apparent
demnor “shall find or believe that the title of
in-
presumptive
defective,
owner of such
doubtful,
controversy.”
(Ann.)
complete
has,
or in
36-1104.
It
proceedings
therefore,
that,
been held
such condemnation
necessary
petition
rem,
allege
“it is not
that the condemnation
the land
procure
an unsuccessful effort to
contract or a failure
(2)
compensation.”
Candler,
Hoch v.
agree
as to
*11
(9
622).
does
or re-
ruling
revoke, modify,
E. 2d
not
S.
Such
the constitutional
legislative intent,
mandate,
peal the obvious
paid”
private
be “first
where
adequate compensation shall
that
public purposes.
property
acquired
Co.,
Young
Mims Macon
R.
333,
cases of
v.
&c.
3 Ga.
&
Harrison, 6
Parham
130,
v.
Ga.
v.
In
Calhoun
Justices
the
of
Mayor
County,
341,
Court Decatur
9 Ga.
&c. of
ferior
of
pertaining
power of
Perkins,
154,
Rome v.
to the State’s
Ga.
prior
eases,
adoption
decided
domain, and similar
eminent
1877, are not
be confused with
decisions
the Constitution of
of
Constitution, although some
subsequent to that
of these cases
may appear to be in
with what
here said. And
line
decisions
of
prior
1894,
to the act
now codified as
Chapters
v.
such as Oliver
36-6, inclusive,
Union
36-2 to
Point &c. R. Co.,
(9
1086),
and Ga. So. &
prior 1877, municipal corporations to the Constitution of were damages consequential resulting improve- liable for from the streets; damages which ment of and that could re- depreciation the prop- covered must the actual value of erty, might be decreased damages which actual benefits. present strongly condemnee in the case urge
Counsel for the City Atlanta, 274, supra, point is in Hurt “taking” private property controlling as to when occurs In their power eminent domain. motion for rehear- under court, by maj ority, that “this a four-to-three ing, counsel assert power statutory change or redefine has no or constitutional 'taking’ in that full-bench decision.” as contained the definition of Hurt is said that facts in the In the statement of thoroughfare upon “occupied all of the structure her abutted; but it did encroach Mrs. Hurt’s actually taken from her. It the same was part and no land, bridge the erection of ren- the evidence appeared from building from the less convenient egress ingress to and dered utility dimin- impaired its consequently formerly, and than appeared that, independently it also value; but rental ished its whole value of the as a market causes, the all other . 275. It clear from . P. enhanced considerably was might ruling in the Green case fact that statement determined on facts found case applied and been have value of the the actual effect court, to the *12 to making the statement reference court enhanced. applying a provision was the constitutional “taking” under a eminent domain. This is clear to not damages and “taking” “Beyond doubt, an ruled: court wherein decision are, perhaps, and there cases sense, 'property,’ in a is, easement for easement, such, instance, a mere appropriation where — taking be be held to a right-of-way, might railroad aas —
89 (cid:127)property. Even then it be whether would a nice toas appropriation properly an a such should more termed not be ‘damaging’ ‘taking.’ than event, either would be paid, thing have to and that is the matter. material such a present case, however, treating right ingress In the Mrs. Hurt’s of' egress building as easement, and her an or destruction impairment of cannot, satisfied, regarded the same we are taking of her property meaning within of the Constitution. ‘There is a broad distinction between cases of this character private in which possession of, over, prop- those dominion City erty taken v. public Atlanta, use.’ Moore Ga. 612.” P. 280. February year,
In a decision of this court rendered (102 Highway Dept. Strickland, in State S. 3), E. 2d it is Atlanta, said: “In Hurt v. bridge 65), that, though
S. was held even the erection of a in- might in a street render less convenient the means egress existing lot, an gress building abutting on meaning con- was not within the requires payment stitutional damaging prop- adequate compensation before case, erty This of the Hurt purposes.” of this decision, binding on the being a full-bench members present litigation. parties and the Highway Dept., v. State decision court in Wilson of this majority 578), is in conflict with the Ga. 510 E. 2d present In the no constitutional ruling in the case. Wilson attempted made, it there con- made, to be question was although funds had been into the that, tended that a court, sufficient, but tender had was Appeals, The decision of the to the condemnee. Court made Highhway Dept., in Wilson State transfer, after the regis- clearly payment 2d shows into App. counsel undertook to make the further try as authorized that, judgment of condemnation since a contention was concluded and entered, been the case 36-1111 had by Code § Sutton, appeal. Judge the Court there 36-1113, which section provisions pointed out the Appeals, *13 clearly provides appeal judgment an for after the of condemna- by tion authorized 36-1111. ruling Appeals Housing
The of Court Au- the of in Olliff thority App. Statesboro, 549), of of is not in majority opinion case, conflict the present with the authority holding appeal and not for the that an will lie from tendering award of the without the amount award assessors of the In paying registry to the condemnee of it into the the court. court case, registry the paid the the funds were into of the Olliff appeal entered, before the sole contention in that was the was that there had to be a tender to-the condemnee. case Ry. Georgia The case &c. Mooney, Co. v.
E.S. is not in conflict with the this full-bench decision of Ry. Co., in Thomas v. supra. court Central Ga. 269, the former case, as shown cited, the Code section case, Railway record in Georgia & Company Power seeking only right-of-way was an easement or for the erection power line. After the of the assessors, power award company upon enter dismissed and did not land Since, ruling in under the the Hurt there condemnee. damaging nowas the condemnee was entitled to collect the amount of the assessors’ award.
The Constitutional Commission 1944, write Constitution, new eliminated from the draft submitted to Assembly provision adequate compensation General shall paid, and provision be first substituted in lieu thereof the change Federal Constitution. This was made because the Com- require did payment mission not want to award to or into the court condemnee as an essential appeal, and because Commission did not want conse- damages prior fixed quential completion project to a the land taken. See Minutes Com- Constitutional mission, I, pp. 159, 214, and the Yol. draft of (Vol. Constitution, I, Art. Ill, II, p. 551). Sec. Par. I proposed Assembly Georgia, knowledge The General the action Commission, declined to- accept the Constitutional the Com- requirement version, restored the former mission’s damaged pur- shall not be taken compensation being paid. without poses Assembly, action of the General changing this the Constitution, and the action of the people approving upon Assembly, binding Constitution revised are litigants case and all similar eases. to be first will *14 participated members of writing avoided this court who they the of solely may new Constitution because have en- contrary Assembly tertained views of to the wishes the General people and the of this State. foregoing reasons, expressed
For
in addition to
the
those
opinion
Candler,
judgment
of Mr.
I concur in the
Justice
say
I am authorized to
that Mr. Chief
Duck-
reversal.
Justice
expressed.
worth
the
herein
concurs with
views
agree
1.
can
Wyatt, Presiding Justice, dissenting.
I
out. In
opinion
majority
the
for the reasons hereinafter set
the
solely
it is
because
jurisdiction,
if this
has
instant
court
requires
appeal
dismiss the
either
the construction
the motion to
Georgia or
provision
the Constitution
the State of
of some
constitutionality
provision
of some act or
question
draws into
(Ann.)
Assembly Georgia.
act of
General
of some
of the motion to dismiss the
pertinent portions
2-3704.
question
appeal, in which it is contended that
constitutional
jurisdiction
made,
reads
follows:
within the
36-601;
36-508;
urge that if said Code
“Movants contend and
§§
36-1115,
36-1113;
36-1110; 36-1111;
36-606; 36-1104;
36-602;
grant
respondent or
permit
to
them be construed
to
and each of
assessors
from the award
respondent
appeal
requiring that
superior
court without
jury
to a
in this case
paid to
be tendered and
either first to
of the award
the amount
when in
condemnees,
registry
of this
paid into
or
tendering
appeal,
an
without first
file such
did
respondents
fact
into the
condemnees, or
of said award
the amount
paying
or
the ten
or within
appeal
of said
at the time
registry of
said Code
appeal,
making of said
days period provided
provisions
contrary to said
them, are
sections, and each
paragraphs
forth in
Georgia set
of the State
Constitution
require
does not
paragraph
clear that this
It is
above.”
nor does
Constitution,
the con
out
it is set
in which
filed
later
amendment
demnees have sustained present damage.
Mayor
See
&c. of
Athens v. Gamma
Chapter
Delta
House Corp.,
In the of the motion quoted, above it is also contended that —if the named Code permit sections are construed to condemnors to file an from the award the assessors without tendering amount paying or condemnees same into-the of the court—said Code sections are con- trary provisions to stated of the Constitution of the State of Georgia. Is this question sufficient draw into or some act provision of an act of the General Assembly of Georgia? We find that is not. It repeatedly has been that, held in order to draw into the constitutionality of an act of the General Assembly give so- as to this court jurisdiction, “at three least things (1) must be shown: particular part the statute or the parts of the statute which party challenge would must be pointed stated (2) precision; out with fair the Constitution which it is claimed has been violated must be *15 clearly designated; (3) it must be shown wherein statute, the designated or some part it, of violates pro- such constitutional vision.” Richmond Concrete Ward, Products Co. v. 212 Ga. (95 677). 774 S. E. 2d Likewise, it has been held that “A criticism that ‘sections 900 885 to inclusive of the Criminal Code’ of this State are 4, par. violative of art. sec. 7 the Consti- Georgia, tution of ‘in upon that it superior confers judgment to render in cases’ thereunder the inter- ‘without jury’, general question vention of a is too to raise as to constitutionality any particular ap- section Code, of the it pearing many sections included in the criticism various subject have no reference jury.” of trial without a Rooks (76 378). Tindall, (2) v. Ga. 138 863 case, In instant the condemnees if nine that, contend manner, named they Code sections are construed in a certain provisions are violative of named two Constitution Georgia for stated In reasons. accordance with the authorities cited, general is question above this too draw into- consti- tutionality any provisions Also, one of the named. since number of named no appears that a Code sections have ref- subject matter erence to of an from the award
93
certainly
case,
in a
and are therefore
assessors
condemnation
any
question
reasons
named,
unconstitutional
no
constitutionality
group
prop-
Code
as a
of all the
sections
County
erly presented. Dade
v. State
Georgia,
Ga.
(74
(39
473); Flynn
State,
461);
E. 2d
v.
S. E. 2d
S.
Ga. 519
(21
v.
Dayan,
423);
State,
Huiet v.
Abel
This court has said that a will of the Constitution that needs majority opinion relies be construed this court. requir- 639), as a State, E. 2d case Crumb instant case. jurisdiction ing this court entertain raised, discussed, case, question jurisdiction was not (cid:127)that de- participated writer in that expressly passed upon. frank, cision, and, being perfectly states ques- Since, jurisdiction enter his mind. did not expressly passed upon, the case jurisdiction was not tion of *16 there are precedent; and since nothing than a more in case than the Crumb older numerous full-bench decisions upon, expressly passed hold- jurisdiction is question of case, this court of the Crumb ing under the circumstances that authority. binding case not jurisdiction, have this does not Georgia, 241, supra, County Dade State See of therein. the numerous authorities cited is con- citing authorities which it opinion, majority tended that the language obiter, the effect that provision constitutional under an actual, consideration means physical taking of the property, says: then “We think that meaning provision Constitution, aforementioned of our if already doubtful under its terms, own has been rendered doubtful thereby, jurisdiction and that the present case should purpose be entertained this court for the of determining what provision payment our requiring constitutional and ade- quate compensation to the owner before property can taken actually for a use means.” There is not one any my word in of the authorities cited that to mind makes this provision say of our Constitution doubtful. The authorities all actual, physical taking. means language Even if this I is obiter—and do not think that it is—that would not make fact meaning the term doubtful. I not think do that the word “taken” as used in the constitutional under considera- any tion needs course, is doubtful or construction. Of purpose construing provision will not entertain a case for the not doubtful or Constitution that is needs no construction. agree I simply person complete pos- can not that a in full and property, nothing session his condemnor when the has done except provided proceeding follow the law ascertain the has taken from him. value had his jurisdiction 2. Even if this court had case, this I can not agree majority opinion with the on the construction of the con question. previous rulings stitutional Under the my opinion it is that there has been “taking” no majority opinion in the instant case. The —after pointing only out that “condemnor insists that it means an actual physical taking in toto the owner’s land for a use,” only that "condemnees contend an actual means physical taking land, of the owner’s but also means substantial which an owner has his land”—then language states: “We must confess that obiter can be found in some of the sup decisions of this court which does port both of them.” The decisions of court are then referred language that, to which the used holds under the facts taking. instant there has been It contended on this are dicta. cases obiter *17 interesting is to note that referred It no decision this court is any language in there supporting to which is the construction by majority placed opinion' the word “taken” —obiter City in Atlanta, or otherwise. This Hurt v. court 'taking’ par- 274, 280, said: “The referred to in the constitutional a agraph physical, tangible appro- means under consideration priation property of that case the of the another.” In identical consideration construed. constitutional here under was There, as of the here, actual, there been no has There, here, there property. simply is contended as property with had been substantial interference of the a There, that there enjoy property. owner to his held here, my opinion, been “taking” had no justifi- thing. I do see how can we should hold same I ably language is obiter. do not consider this contended that any sense the word. language to be obiter What has been Atlanta, said about Hurt supra, may said about other referred in the ma- decisions jority opinion emphasize that, obiter. I want complete possession is in instant owner property. possession of his use condemnor has not taken any way in any of the and has not interfered Georgia Ry. by the &c. possession owner. court in Co. This (1) (93 Mooney, proceed- said: “Where ings power company against are instituted landowner seq., Code, the Civil 5206 et and an condemn under assessors, company, of the appeal is taken from the award possession land, may having taken dismiss con- appeal.” If condemnor proceedings pending the demnation pending appeal,” proceedings “dismiss condemnation can property. has it is that there been no certain opin- accomplished by majority has been I fail to see what placed upon the constitu- Regardless of ion. Assembly has statute the General question, tional appeal award of assessors method for from the provided a pre- out in sections proceedings as set the Code condemnation opinion. requirement dissenting No viously in this cited precedent filing the award as condition payment are, for. Code sections provided These there course, constitutional until and they have unless been held other- wise proper court. No Code attack made on these sections, majority opinion and the so holds. It seems to me majority opinion effect to add a new section authority. to our law, legislative statute and this court has *18 complied statutory in has re- condemnor this case with all quirements concerning has appeal; done, and since this been I do that the not believe should dismissed. Justice, I dissenting. opinion concur in the dissenting
Almand, Presiding Wyatt only Justice and wish to add a few additional my reasons for dissent. majority opinion states de- that a depends cision of case upon meaning “taking” of the word par. as in 1, 3, contained 1 Georgia sec. art. of the Constitution of Ann., (Code, 2-301); and that the contention of the condemnor is that physical taking it means the actual land, that of the condemnee is any that it means which an owner in land, has his and that language “obiter can be found in some of the decisions of this sup- court which does port (and both them.” But case from this court I have none) found in support cited of the condemnee’s contention. City This in Hurt v. Atlanta, 274, court 100 Ga. 280 S. 65), decision, “taking” a full-bench used defined word as provision in appro- this constitutional as physical, tangible "a priation ruling of another.” This has been never questioned today says overruled. The court the word “as ‘taken’ in many jurisdictions, is construed other a paid must be first does require taking, may an actual in but consist an inter- ownership, enjoyment, rights ference with the use and (Italics property.” supplied.) support other In incident to “taking”, Corpus of this of the term Juris Secundum construction binding precedent and an cited. decisis and a Ohio case are Stare placed yield of this must therefore the construction by many jurisdictions. other “taking” the word Collins (30 E. 2d 4 A. Mills, 18, 866, 22 L. R. 2d decision said: “A of the Consti court in full-bench in the sense in which it understood tution .is to construed adoption. at the time Ac people of its the framers and precisely what means now cordingly, the amendment meant at that time.” The of the Constitution of 1945 which provides that property shall not be taken for public purposes adequate compensation without is the same as that contained the Constitution of (art. par. 1). sec. Chief Justice Simmons Justice Little were members this court at the time the case of Hurt v. City Atlanta, 274, supra, Both was decided. were also members of the Constitutional Convention of 1877 which prepared they Certainly that Constitution. other mem- position bers of the court in were better know meaning “taking” we, present than are word members generations of the court three removed from the scene of the meaning “taking” Convention of 1877. If the is defined as word thing one Atlanta), [Hurt different thing in 1958, meaning and a of its to be deter- age living, can, mined which we are now, give years meaning constituted ten the word its in the age age meaning than of atomic space, energy rather *19 buggy or in the horse and era. majority opinion also overlooks the case & of Ga. So.
Fla. Small, R. v.Co. which holds that in a condemnation the time of of private prop- erty use is when the condemnor tenders the amount of damages awarded the assessors. See also Gate Terminal Thrower, Co. v. E.S. Justice, dissenting. I dissenting concur opin-
Mobley, Presiding Wyatt Justice ions Justice Almand.