*1 Corporation Code. Georgia Business We find ing the directions are and that neither offends that both modes service reasonable prescribed only due The issue whether method process. feature of CPA method. A Corporation Code borrows the affidavit result, required produce a desirable might that an affidavit is finding only strained legal but could be reached conclusion procedural The methods have differences which reasoning. service required Corporation All that to be discrete. under cause them process reasonably diligent Code server make a effort is that corporation. registered at the office of the registered agent serve the be found within requires agent affidavit when the cannot CPA If service The distinction is clear and cannot reconciled. the state. agent Corporation Code it is immaterial sought under place in state. located and served at some other this could be case, however, present judgment In court set aside the 2. entry judgment. pursuant to a made same term as motion its own judgment has set even on mo- discretion to aside v. Pinyan Pinyan, 235 Ga. 847 tion the same term of court. within (222 36) (1976). In case motion to aside was made SE2d set set aside although was not until judgment the same term court However, kept open motion the term pending term. later (179 Spurlin, v. 227 Ga. 183 purpose for it. Parker acting 251) (1971). discretion, no we hold that Finding SE2d abuse of setting judgment of discretion the court in aside the will exercise appeal. disturbed on All the concur. Judgment Justices affirmed. —

Decided October Reconsideration denied November Jr., Saveli, Williams, Angel, McGuffey, & Mark S. Cox C. Wade Gannon, appellant. Pearce, Lozier,

Poole, Smith, appellee. & F. Cooper William v. CITY OF 42499. DEPARTMENT OF TRANSPORTATION ATLANTA et al. DAVIS al. OF v. et

42673. DEPARTMENT TRANSPORTATION CONSTRUCTION, et INC. v. DAVIS al. 42674. ARAPAHO v. et al. 42675. CITY OF ATLANTA DAVIS SE2d Smith, Justice. Department cases from actions taken State

These arise (DOT) (the Transportation city) pursuant Atlanta our voiding decision transfer city from the DOT in Dept. Transp. Brooks, 254 Ga. 303 In case no. the DOT County Supe seeks overturn the DeKalb rior Court’s dismissal of a petition involving interests Atlanta, retained parks four County. DeKalb case *2 42673, 42674, 42675, nos. DOT, and the city, Arapaho the and Con struction, Inc., seek to overturn the permanent injunc same court’s any tion barring further any portion construction on of the Presiden tial Parkway. We affirm no. case 42499. affirm in part We and reverse in part 42673, 42674, case nos. and 42675. Parkway proposed Presidential is a highway limited access

designed carry traffic between the downtown connector near its in- tersection Boulevard, with International and Ponce de Leon Avenue recent, east of history Moreland Avenue. tangled Some of the Parkway Brooks, supra. be found in The Parkway, planned, meant portions to traverse four parks city owned and lo- cated in County: Park, DeKalb Shadyside Park, Candler Goldsboro Park, and Dellwood Park. Parkway

Construction of began in December 1984. Febru- 1985, ary Brooks, after a hearing County Superior the Fulton Court issued an injunction barring some Parkway. construction on the 23, Brooks, Brooks April was decided on 1985. In we held that a deed transferring portions parks four these from the to the DOT was very void because of “the existence of the conflict of interest.” 254 Ga. at 317. 20, May 1985, ordinance,

On City passed the Atlanta Council 3, 1985, which was on signed into law June a second authorizing portions parks transfer of DOT. controversy the four This ordinance, Brooks, imposed unlike ordinance involved in a num- ber of restrictions on the transfer. The text the new deed condi- tioned the thirty-five per transfer the maintenance of a mile speed heavy hour limit Parkway, on the a ban on “trucks and vehi- cles” Parkway, on the bar against widening and a of Ponce de Leon east Avenue of Moreland Avenue. The deed also contained a possibility any of reverter triggered by to be violation of these con- ditions. 6,

On accepted June after to the con- objecting deed Mayor ditions possibility day, Young of reverter. same That and agreement Commissioner of the DOT executed an Moreland which stated that reserved certain interests, reverter, were primarily possibility 7, reserved in petition the deed. On June the DOT filed a County Superior DeKalb seeking possibility Court to condemn the any city might reverter other retained in and interest have paid The DOT parks $1.00 to the DOT. portions deeded adequate compensation just the court as into condemned. interests (the Davis, Schulman, Brady, Ratel 10, appellees

On June intervenors) granted July judge intervene. On trial moved to petition. dismissed the the motion intervene and interests to description that the The trial court ruled DOT, event, insufficient, any could and that the be condemned was sought under municipal property not condemn use. Schulman, here, cases July appellees

On Davis both city to from the the DOT and to filed suit to void the transfer Parkway. trial any on the enjoin further construction any construc- granted temporary restraining against order further July parks September in the 12. On trial court issued an tion on against voiding permanent injunction the land transfer and order Parkway. any portion further construction on Appellants some raised the intervenors contend that issues judicata, res should be should be barred intervenors prohibited pursuing suit under the doctrine of laches. Brooks, validity of the Atlanta Coun-

a. involved *3 that to procedure attempting cil’s in to transfer land it owned the DOT, of a to continue propriety allowing certain contractor Parkway. on held that the should be al- to work the We contractor of in- working Parkway, lowed to continue on the but that a conflict City presiding on the of the Council President in over part terest council’s proceedings council the transfer rendered the ac- involving Here, in claim that transferring tions the land void. the intervenors a second, law separate property transfer of the same violates state and ordinances, may the state not condemn inter- that city in by subject property. est reserved the the DOT, thus, questions relating The does contend to the not that by in city condemnation issue and the followed the by primarily transfer are barred res asserts that judicata. The appellees’ city have claims does not to parklands, prevents transfer the of parks and that dedication transfer, by judicata. their should be res The thus question barred previous attempt to taxpayers’ pre- reduced whether the successful subsequent vent the act earlier land transfer will as a bar their attempt prevent grounds later same a land transfer of the land on been, fact, in justify that could have but not used to the earlier were bar on the transfer. first involving piece

An issue of same land will not be barred when receive, it out arises of a second The intervenors not transaction. will holding, under this a shot” at the involved in “second transaction Brooks. A finding judicata prevent of res not multiple would lawsuits city here. The “right” have violated the same of the intervenors in in they Brooks, this case that but they did did so in Erwin, (38 different Spence transaction. See v. 200 Ga. 672 SE2d 394) (1946). The correctly judicata trial court found that res does not bar any of this action.

b. As the timely intervenors filed a in motion to intervene case no. immediately filed second suit almost after con- petition denied, demnation was no find laches here.

2. The in question the four in parks expressly was dedicated city parklands. for use as accepted the dedication. There reversionary were no in clauses the deeds of dedication. shows, parks record this action have not by been abandoned the city public. or the

a. “Where a municipality public use, dedicates to a it time, inures to the benefit all who are at the afterwards become, citizens municipality, of the in the being dedication na- ture of estoppel pais; an and where an attempt made land, proprietor it municipality may revoke a sale of the enjoined any person Mayor Franklin, &c. interested. Macon v. 6). (5, municipality Ga. 239 Where a dedicates use, may put customary all uses within the definition inconsistent, use. Any use which is substantially or which materi- ally interferes, with the particular purpose use of the for the dedicated, which it was will constitute misuser diversion. (3) (95 962).” City Point, Brown v. East 148 Ga. Norton v. SE Gainesville, 211 Ga. SE2d parklands private Norton to a in- attempted involved lease indicated, enjoined clearly terest. court lease. This quoted above, the passage justification injunction change lease rested the fact lease would constitute property, nature the use of the the fact that lease fact, involved a party. conveyance no sale was involved change parklands Norton. The in use of dedicated was the central mitigating factor in favor injunction. Newsome, Augusta City Council *4 (1955), (94 City Augusta, and Harper v. Council 212 Ga. 605 SE2d

690) (1956), process show the this in where a mandated court cases city a park, wishes to alienate land has to it as which been dedicated Newsome, and which has In barred not been abandoned. court City the Council on selling park a to Sears and Roebuck the “ grounds convey have sell city that the did not ‘to or ” public park as a square, dedicated or common.’ Ga. 899. council, turn, sought in to hold a referen- and received authorization approved dum legislature. on the issue from the The citizens sale Harper. process in referendum, approved in the and this court matter, so reify theory in this which Harper and Newsome they upon municipality, and closely citizens of a affects the decision, representative democ- expertise make a possess sufficient — elemental form the undiluted racy should reduced to its most the people. voice of (Ga. 1982, p. Laws 36-37-6.1 promulgating

b. OCGA § § Newsome. 40), exemplified by state legislature recognized law population municipalities having greater a grants OCGA 36-37-6.1 § 300,000 “sell, dispose or otherwise exchange, than parks property personal property” including or and used real . . . “authorizing purposes except where alienation other recreational duties, imposed by in obligations derogation rights, would be title divesting cause prior deed ... or where alienation would property ... like that has been dedi- park, playground, to a or other subsequently This statute cated to use not abandoned.” in deal- large flexibility than OCGA 36-37-6 does gives greater cities ing large holdings property, preserving with their while in public in so needed urban the interest of the recreational facilities areas. While this statute does not serve as an affirmative bar parklands question, incorporate it does the bar alienation granting parks included established the conditions deeds city public’s bar established dedication and acceptance parks question.1 (b) states, “Any mu- agency, county, OCGA or

c. 32-3-3 authorized, nicipality purposes, agree- road to enter into counties, agencies, municipalities, ments with with the other state persons real government, exchange federal for the DOT, in purposes.” interests therein for road brief, (b) “agrees could its that OCGA 32-3-3 [with intervenors] City not which the was other- authorize the transfer above, prohibited by alienating.” shown at this wise law from time, parklands point legally ques- alienate the If, referendum, city acquires tion. through legislation or (b) will, question, to alienate the land as the contends, provide statutory a specific authorization for ex- change procedure. gener- rather See than auction or sealed bid (1) (1953); Beazley DeKalb Ga. 41 ally County, v. SE2d Johnson, Kirkland Ga. 824 finding

d. The the trial erred in DOT contends that example, For if the see fit to alter the effect of dedication should instances, municipality, provide municipality, in certain to avoid method for affected, scope dedication, effect of framework 36-37-6.1 would not be but its of OCGA import certainly be. would *5 land here City Council, transfer an ultra vires act the in ruling that certain municipal ordinances purportedly barring the transfer did not conflict with state law.

(i) “For vires, action to be appear considered ultra it must [an] that the beyond scope action taken was the the powers that have expressly been or impliedly conferred on the municipality.” Newsome City Point, v. Union Here, city the not parklands did have the to alienate in question the for reason, the City reasons stated above. For this the Council’s act in the transferring land was ultra vires properly enjoined and was as such. find, however, did,

We not do as the trial court that the transfer was an vires ultra act reason of its with city conflict certain ordi- passed pursuant nances city provision. to a City charter Atlanta Char- requires ter City pass 6-403 the Council ordinances or § resolutions procedures providing for in “all dispositions follow sales and other real personal property by City.” proce- the Failure to follow “ adopted pursuant dures provision this charter an ‘ir- constitutes regularity in the powers,’ Georgia exercise the Granite R. granted Miller, (2a) (87 (1915),” Newsome, Co. supra Ga. 665 SE addition, at and thus does not an constitute ultra vires act. In provide procedures action, failure to for unauthorized an question, transfer of the hardly could considered a viola- city tion of the charter and an ultra vires act. The transfer was ultra law, vires due city conflict with state rather than with char- city ter ordinances as the court trial ruled.

(ii) city Atlanta Code of Ordinances provides 5-5213 that § may exchange “surplus property” real for other real on a “ ” ‘square foot’ for square foot or ‘dollar value value’ basis. At- city lanta Code of Ordinances 5-5224 states must obtain that (1) “at appraisal” prop- least one to determine that in an exchange erty, city equal receives value for value. not, contends,

Code 5-5213 does as the DOT conflict with (b) property exchanges which authorizes between mu- nicipalities simply provide and state 5-5213 does not agencies. Code § question. We find land transfers such as one no conflict. failure of 5-5224 comply Council to Code § action, Newsome, not and a

would result an ultra vires see discretionary powers court of will “restrain control equity not unless officials a manner that officials” act Brooks, fraudulent, vires, at find corrupt supra or ultra voiding trial not have of the transfer on .the court should based 5-5224. thus need comply council’s failure to with Code We question not 5-5224 with state law. reach the of whether conflicts ruling court erred contend that the trial Appellants DOT, possess or the state, does here the agency by munici- owned in current use to condemn land corporation. pal correctly ruled that Initially, we trial

a. note domain, Art. power of eminent provision regarding the Constitutional Ill, private property. I, I, only by its own terms to Sec. Par. relates in- placed upon limitation state’s ratify serves to That clause right citizens’ domain the individual herent of eminent *6 (3d ed.) Domain, 1.11 No See Nichols on Eminent property. own however, exists, municipal relating clause to need for such a pos- of the state do not municipal corporations, as creatures because the ten- any property, to which creates right sess Constitutional own which, turn, in domain creates right state’s to eminent sion the I, Ill, need Art. Par. I. Sec. special acts of the grace Cities of the state exist municipal own Assembly. corporation’s right even to General city, Kirk- special in that see property may creating be limited act in- Johnson, Ga., certainly possesses the the state A condemnation. power property rights through herent limit to those not, however, Assembly, much city is in total thrall to the General DOT, by such as the nature of its creation. When agency less state power Assembly city, it limits state’s within the General creates in sphere municipality. out an area of that It carves which fiat, may not, by any pleases. in manner in which it operate not, Assembly may pass af- example, General laws that corporation in municipal fect a a manner “inconsistent with [the Georgia] Constitution, repugnant to the Constitution [or] VI, Constitution, Ill, I. This Georgia United Art. Sec. Par. States.” “shall provision Assembly constitutional also states that General power necessary to laws ... and have make all shall deem Assembly proper for welfare the state.” Just as the General is Ill, in to corporations by limited its conduct relative Art. VI, I, relating in its munic- Sec. Par. so limited conduct to Assembly pursuant corporations by passed by the General ipal laws Ill, VI, Par. Art. Sec. I. passed laws has

Among Assembly pursuant that the General VI, Ill, I, Art. con- authorizing Sec. Par. are laws the DOT to reading A con- authorizing demn land. of those statutes the DOT to which, which, reveal manner in demn land will the extent to legislature power has the DOT to its of eminent allowed manifest municipal corporation. domain relative to a First, Georgia b. look Title 32 of Code to examine the procedure legislature exclusively acquisi- has out for land set (8) (a) 32-2-2 transportation purposes. grants tion for OCGA § authority DOT “the to exercise do- eminent purchase, exchange, acquire sell, lease, main and to or otherwise or dispose any property any rights or or interests therein for purposes. subject express provided road . . to such limitations are simply proposition law.” This restates the that the DOT’s subject statutory and tations.2 to condemn limi- (a)

Reading “Any states, further in Title OCGA 32-3-1 property may acquired simple any interests, fee in- or lesser cluding space, rights easements, access, scenic air a state agency county municipality through gift; exchange, devise, purchase, prescription, dedication, domain, eminent other road or other provided by present manner transportation purposes.” law for or future acquisition states,

OCGA 32-3-2 “All then purposes proceed or interests for road shall under methods set out and in Title this article 22.” OCGA 32-3-3 municipalities acquire “any DOT, counties, authorizes the property” by exchange, prescription, “devise, or dedication.” In these acquire “any statutes, the declares the DOT property” procedures purposes only through lawfully for road established

set out 22.3 Title Title wishes to use this case intro- “Authority bring § 32-3-4, duced OCGA demnation “Whenever or state which is entitled con- proceedings.” (Emphasis supplied.) states, *7 agency, county, municipality state or take desires to damage private property purposes ... . . . such road

agency, county, municipality may [a or . . . file condemnation petition] [appropriate] represents superior in court.” This “private property” appears regard- first time term that the Title 32 ing relating matters to condemnation. province states, “It is of General Assem-

bly may right to determine when of exer- eminent domain be Mining Pyrites In Co., Co. cised.” Chestatee v. Cavenders Creek Gold (46 422) (1903), right 354, held, “[t]he 119 Ga. 355 SE of this court legislature . . . eminent domain lies dormant until the sets it in mo- every supervise tion. As the tion, not in can case condemna- may agencies power upon [t]he it confer the . . . thus always strictly permitted construed, conferred is to be and will not be (Emphasis except affirmatively granted.” to be exercised where it is independent purchase” certainly beginning clauses “to and “to are exercise” over, of, example, property. of “Eminent each other. For one exercises eminent domain not domain,” thus, occurring phrase, “any property.” does not relate to the later may acquire any property The fact that the DOT does not mean any property. condemn Hwy. Dept. Hatcher, supplied.) later, v. 218 Ga. in State This court 803) (1962), general coun- noted “the rule this SE2d conferring try must be eminent domain of authority statutes strictly legislative construed, must be shown clear (Emphasis supplied.) Delegations taking.” of the au- authorize the strictly thority domain, thus, must of be to exercise the eminent Georgia. construed Transp., Dorsey Dept. addition, 248 Ga. we held of 707) (1981), for condemnation that while seq. process, due stat et does not violate “the under OCGA 32-3-2 ute v. or a body.” strictly condemning In Frank must conformed to be (2) (1884), taking held, Atlanta, “[t]he we 72 Ga. of private property injuring benefit is the exercise power, provided high law, and limitations and all the conditions closely done, much followed. Too under which caution in this pression.” should op respect prevent abuse and cannot be observed strictly procedures thus must be construed Condemnation well. as delegation a OCGA a follow 32-3-4 constitutes authority quoted specific procedure. such, under the strictly against condemning above, authority. we must construe statute “private property” We thus find that the term found by government or owned OCGA 32-3-4 does include governmental entity. support First, A number other factors construction. (5th ed.) Dictionary “private” “affecting be- Black’s defines as Law generally.” longing individuals, distinct from the plain meaning “private property.”4 Our construction follows “private appearance Next, first term OCGA 32-3-4 marks the repeated “property,” property” in Title After references to “any ignore specific property,” legislature’s cannot use of Finally, adjective “private” “private property” for the first time. subject “any agency, under this statute is county, municipality.” to condemnation find no We sense a construction “any specific piece property “private” agency” finds when state or attempts “county municipal- “public” it, when necessary ity” attempts it, DOT’s to condemn as would be under the proposed construction. Land, v. 50 Acres DOT cites United States 53 USLW *8 (decided 1984), proposition “private

4001 property” December for the by municipal government includes a for the land owned junction (24). ^[4] Note that this construction also follows with “road” according to the “Definitions” section of Title 32. OCGA 32-1-3 meaning of “public” “private” in con (21), purposes of plausible eminent proposition domain. While that seems blush, at first we find that a reading exalts the rule of the case reasoning above the behind rule. we are the same construing phrase entirely in an context,5 different reasoning find the behind ruling much more than valuable the black-letter law. Court, Acres, The Supreme United States in 50 at supra held, public “When the United facility States condemns a local public it, loss entity, persons to the served local tax- payers may be no less in taking private acute than the loss a prop- erty.” The “private court then property” held that for the purposes of the Takings Amendment, Fifth Clause included state mu- nicipal property. court, effect, The public reasoned that inter- est in public property important is private as a individual’s interest in private property purpose for the construing language involved in eminent domain proceedings. Pursuant to this reasoning, construed the language question against condemning in a case public where interests were subject pro- to condemnation substance, form, ceedings. if not of 50 Acres supports thus use strict against condemning authority construction where public interests the subject proceedings. are of eminent domain construction,

Following this plain meaning of OCGA § 32-3-4, specific we find no authorization for the DOT to use the con- demnation set seq. out OCGA 32-3-5 et in an action against public, municipal property.6 appellants

c. The Elberton Co. v. Hwy. cite Southern R. State (89 Dept., (1955), 211 Ga. SE2d Southern R. Co. v. 12) (1963) Hwy. State Dept., proposi- 219 Ga. 435 for the tion land in question because the land in question public is devoted use. As the nature of own- use, case, ership question, of the land not its controls this these inapplicable cases are here. taking “private property.” authorizes Rail- stockholders,

road is generally taxpayers. owned Such property may pri- be devoted to use but remain nevertheless vate A property. way is right simply railroad use, which the has a Even put use. when to a relationship government certainly between the federal and a state is dif addition, relationship city. ferent from between a and a certain definition of “private” obviously consequences will create different when used in the Fifth Amendment understanding why the United States our This Constitution and in statutes. transcends knowledge in value as as 50 Acres far concerned. Ives, Compare our condemnation in Hiland v. 154 Conn. statutes the statute cited detailed, provides explicit procedures A2d 35 ALR3d Connecticut for the use” “which restricted to conservation or recreation (Rev. 1966). transportation purposes. Conn. General Statutes § 7-131J *9 purchased primarily property for funda- owned railroad profit generating purpose railroad. for the of mental prop- public respects Municipal hand, all is in land, on the other private taking might erty. of § authorize 32-3-4 While OCGA property, public above, property put is an use, as seen ato property, private property species. entirely railroad Since different supra, property, Southern, Southern Elberton find Railway, inapplicable. supra, to be § addition, of Ga. 1933 Code cases, in were based

These two acting Highway Board, for and 95-1724, stated, which “The State empowered hereby to exercise State, authorized and behalf of the way rights right the condemnation eminent domain highways system property . . . .” of State thereon for the use of a) interpret attempt The lan- this statute because: We need not considerably language guage from of the statute differs b) arising statute, case; The cases this involved this statutes as stated and, present case, above, fact in the do not relate to the situation c) repealed along importantly; with § all 95-1724was most Code p. 1973, 947. Elberton Ann. 95 Ga. L. of Southern Ga. Code Title former supra, Railway, Railway, supra, § 95- and Code Southern control, to, much this case. 1724 do not relate less provides proceed- 22-2-102, § OCGA which for condemnation § d. provides ings special 22-2-130, master, which and OCGA before a superior authority proceedings court also for condemnation before the private they taking damaging “for state that property” are available (OCGA 22-2-102), § or where the condemnor “desires 22-2-130.) (OCGA damage property.” § findWe our take or applicable statutes, and thus § to these construction of OCGA 32-3-4 property under find not condemn § § 22-2-102 or OCGA 22-2-130. OCGA (1847), Young McKenzie, In court addressed

e. incorporated company bridge legislature build- act of the ing, authority provided company with the to condemn and which property procedure by might property if which it condemn expression by necessary. The court held that the act was an right delegate power domain, of eminent and that the power legislature. in the held act constitutional. rested The court general Georgia deal- The 1863 Code of contained three statutes (now 22-1-2) ing § § OCGA defined with eminent Code 2201 domain. peace “in domain, time of eminent and also stated that [any part Assembly appropriation General authorize (now territory public purposes.” § state] Code 22-1-2) ruling Young, § that the OCGA codified the delegate sembly. in the As- rested General (now 22-1-4) General § stated that the Code 2203 OCGA Assembly could “exercise the eminent domain” through state officers, corporations, enterprise.” “means of individual (now 22-1-5) Code compensation OCGA stated was to paid condemnee before the except was taken ex- treme emergencies. The legislature proce- did not set out specific dure for condemnors to follow the 1863 Code. enacted a law entitled “Condemnation of (Ga. Property”

Private L. p. subsequently and which ap- peared in the 1895 Code of Georgia 4657 et seq. Code law, initial stated, corporations section persons “All author- ized or damage private to take purposes pro- shall ceed as herein set forth.” 22-1-8, This statute appears now as OCGA § *10 except “corporations” deleted, that has been and “as herein set forth” now reads “as set forth in stated, this title.” Code 4660 corpo- “The § person ration or seeking to property condemn purposes for shall serve upon a notice statute, the owner of the . . .” This corporations with “All persons” person,” or changed “Any now ap- pears at OCGA 22-2-20. §

“Property” 22-2-20, thus, originally OCGA was limited to § “private property” by the title of original the law included statute, (OCGA 22-1-8.) original code 4657. As the inter- § § — point out, venors these statutes general proce- statutes and the — dural ones separately remained grouped until the latest revision of Now, (OCGA 22-1-8) code 1982. former code has been § § removed from chapter authorizing before assessors general chapter, Title 1. Chapter Former code § (OCGA 22-2-20) chapter procedure. remained in the authorizing the

This change position of these code change two sections did not First, their relationship. plain meaning of OCGA 22-1-8 autho- only rizes pursuant condemnation of Title Next, “[e]xcept provided as otherwise code], the enact- [the ment of is not intended to alter the law in substantive [the code] existence on the effective date of this “Prop- code.” OCGA 1-1-2. erty” “private still limited to for property” purposes of OCGA § 22-2-20. DOT, f. state, While the an agency may upon as of the authoriza- tion serve as a power conduit the state’s emi- inherent exercise nent domain over municipal property, clearly has not given DOT procedure by which the DOT might condemn municipal interpretation original land. If our of the legislative intent or our in question construction of the statutes differ from the present intent of the as legislature, body, the law-mak- ing government, may branch of the as it sees fit to enact such laws effectuate that intent. may

4. The DOT city contends that the not withdraw its consent Parkway. construction may (a) be roads limited access states further, “provided, built, municipalities, planned, and maintained subject authorization shall municipalities such such that within au- law.” statute municipal provided as such consent munici- county or a transportation] department thorizes “the [of in, cooperation with each pality in state alone this act] [to Here, “Campbell such a road. . .” to other. follow consti- authorizing the land transfer and the ordinance Resolution” city “cooperation” between “municipal as well as consent” tute consent, moving for- reliance the DOT. DOT’s revoking Parkway, estops city ward with construction on the Parkway. regulation As for its consent to the construction “cooperate” city may Parkway, the DOT and the maintenance opinion they pursuant as fit and otherwise act see law. other relevant state upon which the the conditions

5. The contends void, they purport since to restrict possibility its of reverter are based They argue that the conditions power the state’s of eminent domain. under and as result are void contrary public policy, are thus OCGA 44-6-43. above, of eminent domain possesses seen however, not, as read the conditions city’s property.

over the We do Upon authori- attempts the state’s of eminent domain. to limit interests, zation, fact, gives meaning possibility Since the reverter was discussed above. *11 and the conditions, to find conflict between the conditions the we no event, of the any DOT’s In our vacation eminent domain. question land transfer renders the moot. any granted permanent injunction against

6. The trial court conclu- Parkway largely further on the on the basis its construction matter, that, never condemn sion as constitutional the could in city’s parklands. any the interest the Assembly We find no such constitutional barrier. The General may certainly provide authority procedure the DOT with the any municipal property municipal property, to condemn or this alone. authority to Assembly grant The General also the hold Assembly finds procedure referendum or follow other the General mind, in proper, swap. Keeping guidelines these to effectuate land lift in- injunction we the trial court’s of construction on land not DOT, thus, parklands controversy. may proceed in in cluded in peril, equities at it desires its as the will be balanced future in injunction as of the date the trial initial this case. court’s 32-3-17, taxpayers possess right 7. Under OCGA to inter- against entity owned vene condemnation actions which they pay words, In possesses their taxes. other “an in public interest” property.

8. We do not reach the issue of the description pos- DOT’s of the sibility of reverter its petition, since our rel- holding ative to the DOT’s under will support trial court’s dismissal of petition. the condemnation

9. We complaint need not reach the DOT’s that it was denied the court, to full discovery by the trial as our holding on the res judicata previous effect of involving suits Parkway not rest did upon lack of identity parties. of the addition, In

10. we need not sufficiency determine the or insuffi- ciency of the description interest condemned DOT, as we have decided that the condemnation operated under was not available to the DOT. Judgment Judgment Case No. 42499. affirmed affirmed part and part reversed in Case Nos. All concur, Hill, J., Justices except Marshall, J., Weltner, C. P. J., who dissent. Justice, concurring.

Clarke, I concur the judgment of majority. my opinion, the emi- nent domain issue is analysis simply the last question of statu- tory Our duty construction. is more interpretation no than an phrase “private property.”

It has been said that there are four methods of judicial interpre- tation of method, statutes: method, literal golden rule sound law approach, and the standard old rule method. literal simply method dictates depart plain from the meaning the language of the golden statute. The rule method would direct that contradiction, we follow the literal produces method it unless absurd- ity or such an inconvenience as to insure that meant something else. The sound law approach appellate for the make sense out the statute in- legislative but be faithful method, tent. Under this consideration should be given pur- pose of the statute in trying body make it at home with the whole of the law. The standard old rule method is sometimes called the “mischief rule.” appellate Here the court seeks to find the law as existed before passed identify the statute was and then the mischief corrected, sought the idea being leg- that this would lead to islative intent and protect would law as a seamless web.

I attempted have to apply these methods to the each statute question doing here. In I am so unable to reach the conclusion that “private the words property” by municipal mean lands owned cor- porations.

138 Justice, dissenting. Chief

Hill, granted has been acknowledges the DOT majority (a), OCGA see also “any 32-3-1 property,” OCGA § to condemn However, major- (a) (8), public property. supra, including 32-2-2 § pro- provided the DOT with Assembly has ity that the General finds property. public “private property,” only cedures to condemn 22-2-130, Why 22-2-102, supra. 32-3-4; also OCGA OCGA see §§ § public to condemn Assembly grant would the General proce- I to do so? find that property procedures but withhold the provided, been as well. dure has out, Assembly provided the majority points

As the General road public purposes for private property procedure condemning for agency, 32-3-4, “Whenever state supra, as follows: OCGA § . . property . damage private or county, municipality to take or desires municipal- agency, county, . such public purposes road . . state for property . . condemning . ity proceeding .. . file a rem the contents of provide . .” which follow for . . The Code sections taking, petition, the contents of declaration process. and service of OCGA deposit compensation, of estimated §§ taking? as the “declaration This is known 32-3-5 32-3-8. procedure. is, in OCGA 32-6-112 highways, for limited access § procedure pub- Assembly provided to condemn General by “in same manner” as authorized property highways

lic for such roads,” department, county, or a mu- saying: “The “public law property property rights nicipality acquire through gift, . . . and service roads limited-access facilities devise» governmental in the manner as such purchase, or condemnation same by acquire units are authorized law respective roads their rights in connection with within jurisdictions.” refers, least, the “declaration of tak-

The “same manner” at ma- procedure seq., supra.1 ing” provided et § 32-6-112, the General jority’s construction of OCGA Hwy. Hatcher, (1962), Dept. inapplicable State Ga. here. procedure Highway Department sought taking In that case the to use 1961 declaration applicable private property access to “state aid roads” to condemn for a “limited [interstate] (now 32-6-112). highway” The court held that as authorized 1955 act OCGA taking expressly procedure not be used the 1961 act had been declaration of could so because roads,” thereby precluding application limit its “state aid reliance on the amended to highway” following year, Assembly provided “limited inter access act. The General roads, highways p. L. in 1973 reference “state aid are state aid 32-3-4, 1973, p. 947, 95A-603, so that roads” was deleted what is now OCGA Ga. L. legislative taking applicable the declaration of became to all roads. This history Assembly shows that it was the intent of General allow 32-6-112, taking highways, for limited access OCGA use the declaration of *13 Assembly accomplished nothing by “public including prop- the words erty” in statutory that Code section. That contrary is to the rules of construction. Butterworth, Butterworth v. (180 301, 227 Ga. SE2d 304 (1971), the court reviewed statutory the rules of construction and “

said, pertinent part: ‘The rule of construction that effect to be given statute, to all a the words of provisos forbids that two should be treated no having scope more or significance than one of them would have if standing alone. It better legislative wait for arbitrarily amendment than to reject one of provisos as senseless Davis, (11 Smith v. superfluous.’ (2) 1024). or Ga. SE ‘[A]ll legislature, numerous, words of the preserved, however ought given whole, effect if it can be done. No doubt courts could sometimes legislation by better rejecting some of the words delivered by to them but to do this courts have construction; power.’ (Emphasis no Davis, Smith supplied.) p. 631.”

Because majority give any refuse to effect “pub- to the words property” lic 32-6-112, (b) OCGA I dissent to Division 3 of the majority opinion, including what is said on motion for recon- sideration.

I am authorized to Presiding state that Justice Marshall and Jus- tice Weltner join in this dissent. Justice, dissenting.

Weltner, I dissent to those portions majority opinion affirm the trial court. (a) provides: “Any

1. property acquired simple interest, in fee or including easements, lesser scenic air- space, access, rights a . . . by agency . . . eminent domain ... present or public transportation future road other purposes.” (Emphasis supplied.) 1955,

2. In we held that what then known High was as the State way Department “has paramount authority taking matter of any property within public its boundaries for those uses to which it including may reasonably that which has al property, devote such ready been devoted to a use.” (Emphasis supplied.) different Ga., Elberton Southern R. Co. v. State Hwy. Dept. 645) (1955). SE2d

3. In powers drew a distinction between of emi- inherent domain, nent such as belong by sovereignty, a state virtue of its delegated powers upon of eminent a domain which are conferred (either entity public body, enterprise lesser privately-owned provided OCGA 32-3-4. “But grant. legislative interest)-through a which is affected exer- where one is prevails the one stated above a rule different from There, the one exercis- delegated power of eminent domain. cising may not condemn eminent domain delegated power ing such a unless public use and different already another devoted necessary express terms power upon to do so conferred Hwy. State Southern R. Co. v. supplied.) implication.” (Emphasis 219 Ga. Dept., Department Transportation Having conferred having de- “any property,” and by eminent domain

power acquire above, devoted termined, the cases noted domain, eminent the state’s beyond use is not the reach of sovereign the inherent having distinguished between bodies, resolves itself into the issue powers and the conferred of lesser *14 within the state’s there, by necessary implication, power this: public some acquire property now devoted to executive branch to use? affirmative, upon in must be question

5. The answer several considerations:

(a) public to a use is vested property which is devoted Whether immaterial, both receive public corporation in a as private a attempt by grant. To powers legislative their eminent domain of on the paragraph first above distinguish those cases noted as be the they unavailing, utilities is it must ground public treat only property may be use and not title that counts. Private nature of public If be taken for other purposes. condemned for — — is not public by entity what occurs then purposes than whatever domain, “We power expropriation. of eminent but the exercise of the may not taken for a repeatedly private property held that have County, Management, . Inc. v. Heard private purpose . .” Earth 442, 446 (b) Frank v. Dorsey Transp., supra, The Dept. cases of of Atlanta, for a calling relied as strict cannot be of domain, as the sover construction of eminent vested They merely elementary proposition that condemna eign. apply the Assembly “must be procedures by tion established the General strictly body.” Dorsey, supra, by condemning conformed to Ga. at 37.

(c) “[a]ny property The 32-3-1 that declaration OCGA § . acquired through .. . .. agency ... a state . .. eminent domain purposes” for present transportation or future road or other authority Department must be understood to include the use, Transportation to a property subjected to condemn ALR3d whatever the status of its title be. See Annot. 35 (d) lodged Having condemning Department Transportation, having transportation with the charged needs of a state of five a half million it is people, suggest fatuous to discharge responsibilities of these to be frustrated the ab- sence, statute, specific “public property.” words necessary consequence quickly a holding such can lead to Assume these Department plans absurd. circumstances: a ma- jor portion interstate route of a in Georgia; small hamlet it; fathers they yard- want none of cause to be condemned strip wide lying directly path proposed athwart interstate — highway. Thus highway ends the interstate project permanently. appropriate game Such rule is more ato of Parcheesi than to operation department of a of government. I am authorized to that Presiding joins Justice Marshall this dissent.

On Motion for Reconsideration. cites OCGA 32-6-112 as for the condemna- parks tion of the involved this case. OCGA enables 32-6-112 acquire property DOT to for limited access roads in the same manner may acquire that it states, for other roads. OCGA 32-6-112 “The department, county, municipality may or a acquire private or public property property rights for limited-access facilities and roads, access, air, service including rights view, and of light devise, through gift, purchase, or condemnation in the same manner governmental as such units are acquire authorized law to property rights in connection with roads within respective their jurisdictions.” (Emphasis supplied.) *15 This code may pub- section does not state that the acquire DOT lic property is through manner that it authorized to otherwise use to acquire any property. As the DOT is nowhere otherwise authorized to employ public to acquire eminent domain “the property, same manner” does not include property condemnation where words, department concerned. other . . may acquire since “the .

. . . public . . . in property through . . . condemnation same man- ner that by acquire [i.e., authorized law to public] prop- such [it] erty ,” department . . . anywhere by is not authorized law to condemn property, gives department this code section no authority to public property it otherwise could not condemn. property” contends,

“Public simply not, does as the DOT apply by necessity to each of the of property acquisition four methods listed A city, OCGA 32-6-112. not example, may “devise” § to the DOT even DOT though may by be “authorized individuals de- acquire private property from law” to acquire public property law” to by The DOT is not “authorized vise. by by devise or condemnation.

Furthermore, previously as noted Division § establish, (a) designate, regulate, to provides “plan, that authorization maintain, limited abandon, alter, improve, provide” access facili- such municipalities subject municipal to consent ties within “shall applies to limited access provided by law.” This statute may municipalities, just limited access facili- facilities that lie within not municipal reading of OCGA 32-6- property. ties The DOT’s § (a) (a), in that 32-6-111 112 conflicts with OCGA 32-6-111 Code § consent, would, in next requires municipal and Code 32-6-112 Gift, breath, useless. de- requirement enable the DOT render that would, by purchase transferring municipal vise or of mu- definition, be on Condemnation premised municipal consent. would, instances, nicipal except very rare oc- “ legis- words of the cur the absence consent. [A]ll numerous, lature, preserved, given and effect ought however to be whole, if done. No could sometimes better it can be doubt courts legislation by some of the words delivered them rejecting construction; power.” do this courts have no legislature for but 1024) (1890). Davis, SE OCGA 32-6- Smith Ga. (a) only not other methods distinguishes 32-6-112, acquisition ap- supports under OCGA also pellee’s position expand did not intend to power public property in en- DOT’s and authorize condemnation acting OCGA 32-6-112. greatest power perhaps power

Since the of eminent domain in the Assembly, against vested General we will construe that contrary. 32- specific legislation the condemnor absent OCGA § (b) Furthermore, 2-2 specific legislation. does not constitute pub- since neither the for or the of condemnation (b) DOT, lic 32-2-2 does property is otherwise vested OCGA § not, itself, power. confer such

Finally, recently note this court has held that condemn- cynically play with condemnation ing authorities not “Parcheesi” procedures they might accomplish with- accomplish ends that Management Earth v. Heard manipulation procedures. out of those body The full County, Management, dis- sentence of Earth cited Justice Weltner’s reads, may not repeatedly private property sent “We have held that condemning and that private purpose be taken not act eminent domain.” in bad exercise faith dissent.) (Emphasis supplied to sentence deleted from portion Id. *16 County Management, prevented In Earth Heard from condemn- ing park land for when “there evidence that even [was] condemnation, though [might park] be used as a after being real reason for its application taken to thwart of an- [was] other use 447. A interest.” Id. at full read- [had] Management, thus, Earth ing necessary shows “the conse- quence of holding” only could if lead “the absurd” this court [this] willing ready ignore precedent. abandon — 8, Decided October 29, 5, 1985 and November 1985. Reconsideration denied October Bowers, General, Gordon, Attorney Michael J. Marion 0. First General, Assistant Attorney Matson, Roland Joy, F. C. Sen- William General, ior Attorneys Richards, Assistant Charles M. Assistant At- torney General, Department of Transportation. for Brooks, Smith, Jones Kendric E. Coop-

Marva Overtis Hicks wood, for Atlanta et al. Hermann, Walbert,

Walbert & David F. for Davis et al. Neely Johnson, & Player, Michael R. Arapaho for Construction Company, Inc. Post, Adamson,

Hansell & B. Prebula, Terrence Mary Long A. & Aldridge, Watson, Jr., Bird, Smith, Jack H. Sidney Jr., Alston & 0. Anne S. Rampacek, King Bell, Spalding, & B. Frank C. Griffin Jones, Schneider, Richard A. amici curiae.

42313. YOUNG v. THE STATE. Justice.

Bell, Appellant Anthony Young was convicted the malice murders Mae Edridge Shellhouse, Ollie and Ozella was sentenced to serve two appeals, concurrent life sentences. He and we affirm.1 30, Appellant The offenses were committed on October 1983. was and sen convicted September 18, 12, tenced on A 1984. for was motion new trial filed on October In his 1984. court, appellant’s se, appellant pro brief to this counsel states that filed this motion without knowledge of counsel. 1984, 18, appellant’s on, On appellant’s October before motion for new ruled trial was appeal. reporter transcript counsel filed notice of The court certified the on November appeal was docketed in this court on December 17. appellant Counsel states that he discovered the existence the motion new trial receiving copy Thereafter, superior January 8, after of the record court clerk. on 1985, appellant appeal pending withdrew his determination of motion for trial. his new Said April motion was denied