Woodside v. City of Atlanta , 214 Ga. 75 ( 1958 )

Candler, Justice.

Pursuant to the provisions of Chapter 36-11 of the Code of 1933, as amended by an act which the legislature passed in 1938 (Ga. L. 1937-38, Ex. Sess., p. 251), the City of Atlanta filed a proceeding in rem to condemn certain realty, alleging that acquisition of it was necessary for the construction of the North-South Expressway from Baker Street to Memorial Drive. Among those named as defendants were John J. Wood-side, Jr., John J. Woodside Storage Company, Inc., and several other named persons who are described in the petition as lien-claimants to a portion of the proceeds. Assessors were duly selected, and an award was made after the parties had been fully heard. The award as thus made was timely filed with and recorded by the Clerk of the Superior Court of Fulton County. The condemnor, being dissatisfied with the amount of the award and within the time allowed therefor, filed its appeal to a jury in the proper court of Fulton County. Thereafter, John J. Wood-side, Jr., and John J. Woodside Storage Co., Inc., filed a motion to dismiss the appeal on the ground that the amount of the assessors’ award had not been tendered to them or paid into the registry of the court for their benefit prior to or at the time of filing the appeal, and that such tender or such payment was a condition precedent to the condemnor’s right to enter an appeal to a jury. The motion as amended alleges at great length the injury, damage, inconvenience, and loss of substantial property rights which the movants have sustained in consequence of the pending condemnation proceeding against their property, but the amended motion alleges that the condemnor .has not taken actual physical possession of the property involved. The amended motion to dismiss the appeal was stricken, and the exception is to that judgment.

While in banc and during our consideration of the instant case, a question concerning this court’s jurisdiction arose, and that is a question which we must always determine, with or without motion of a party. Brockett v. Maxwell, 200 Ga. 213 (36 S. E. 2d 638). And since the instant case must be transferred to the Court of Appeals for decision if this court does not have jurisdiction of it, we will deal with and dispose of that question first. By article 6, section 2, paragraph 4 of the Constitution of 1945, this court has jurisdiction “in all cases that involve the construction of the Constitution of the State of Georgia or of the United States.” Code (Ann.) § 2-3704. The words “construction of the Constitution,” etc., as thus employed, contemplate construction where the meaning of some provision of the Constitution is directly in question and doubtful either under its own terms or under the decisions of this court or the decisions of the Supreme Court of the United States. Gulf Paving Co. v. City of Atlanta, 149 Ga. 114 (99 S. E. 374); Thompson v. State, 199 Ga. 250 (33 S. E. 2d 903), and citations. In the instant case, the motion to dismiss the condemnor’s appeal to a jury in the superior court was based squarely on the proposition that payment of the assessors’ award of compensation for the property involved was a condition precedent to the condemnor’s right to file and prosecute its appeal. To decide that question which is directly presented by the writ of error, we must necessarily construe and from such construction determine the meaning of article 1, section 3, paragraph 1 of the Constitution of this State (Code, Ann., § 2-301), which declares that private property shall not be taken or damaged, for public purposes, until just and adequate compensation for it is first paid to the owner. Does this provision mean only that payment of just and adequate compensation must precede an actual physical taking in toto of the owner’s property for a public use, or does it also mean that payment of just and adequate compensation must precede the taking of some substantial right of property which an owner has in his land? So far as we have been able to find, this court has not had for decision a case where that exact question was directly presented, but several decisions rendered by this court do contain language which strongly indicates that our constitutional guarantee of payment before private property can be “taken” for a public use means and is limited to an actual physical taking in toto of the owner’s land. Among such cases is Hurt v. City of Atlanta, 100 Ga. 274, 280 (28 S. E. 65), where it was said: “The 'taking’ referred to in the constitutional paragraph under consideration means a physical, tangible appropriation of the property of another.” That case, however, did not involve the city’s right to take private property for public use without first paying the owner just and adequate compensation for it; it was an action brought by Mrs. Hurt in 1893 against the City of Atlanta, to recover damages allegedly sustained by her in consequence of acts which diminished the value of certain realty owned by her, consisting of a lot fronting on Forsyth Street and a building thereon. The nature of her case will be readily apprehended from the following condensed statement of the facts. The city in 1892 had, under express legislative authority, caused to be constructed longitudinally in Forsyth Street a bridge which spanned a number of railway tracks. The width of the bridge coincided with that of the street and the adjacent sidewalks, and it therefore occupied all of the public thoroughfare upon which Mrs. Hurt’s property abutted; but it did not encroach upon her land, and no part of her land or building was actually taken from her. It appeared from the evidence that the erection of the bridge rendered ingress to and egress from her building less convenient than formerly and consequently diminished its rental value; but it also appeared that, independently of all other causes, the market value of the property as a whole was considerably enhanced by and because of the erection-of the bridge, and that by making alterations in the building so as to properly adjust it to the bridge, it would, even after allowing for the cost of the needed changes, and taking into account an increase in the value of the land, pay in rents a higher percent on her investment than before. The case resulted in a verdict for the defendant, and this court affirmed a judgment denying her a new trial. The language from the opinion in this case, as quoted above, is, of course, purely obiter dictum, as to when property is “taken” within the meaning of our Constitution, which was not involved. Austin v. Augusta Terminal Ry. Co., 108 Ga. 671 (34 S. E. 852, 47 L.R.A. 755), is another case which contains language indicating that our constitutional guarantee of payment before private property can be “taken” for a public use means and is limited to an actual physical taking of the owner’s property, but that case, like the Hurt case, did not involve the question of taking property through an exercise of the right of eminent domain, but it was also an ordinary suit for damages growing out of acts which allegedly diminished the value of the plaintiff’s realty; and as pointed out in the Hurt case, supra, there is a broad distinction between cases of that character and those where private property is being taken from the owner for a public use. See, in this connection, Moore v. City of Atlanta, 70 Ga. 611. By those two decisions, and by others which could be cited where a similar obiter dictum was used by this court, we think that the meaning of the aforementioned provision of our Constitution, if not already doubtful under its own terms, has been rendered doubtful thereby, and that jurisdiction of the present case should be entertained by this court for the purpose of determining what our constitutional provision requiring payment of just and adequate compensation to the owner before private property can be taken for a public use actually means. Crumb v. State, 205 Ca. 547 (54 S. E. 2d 639), is a case where this court entertained jurisdiction for the purpose of construing a provision of the Federal Constitution. There the accused was convicted of a misdemeanor, and this court, with all of the Justices concurring, entertained jurisdiction of his case when the only basis for such jurisdiction was a proper construction of the Fourteenth Amendment to the Constitution of the United States. It was Crumb’s contention that the clause of the Constitution just referred to did not allow a systematic exclusion of men from jury service because of their race or color. Its analogy to the present case is so complete that no reasonable argument can be offered why a constitutional question sufficient to give us jurisdiction was there raised and that no constitutional question sufficient for that purpose is here presented.

There is no merit in the motion to dismiss the writ of error on the ground that it was prematurely sued out. If the trial judge had sustained the motion to dismiss the condemnor’s appeal to a jury, his judgment would have been a final disposition of the case, and, under the provisions of Code (Ann.) § 6-701, a judgment of that character may be reviewed by this court on a direct bill of exceptions. Newton v. Roberts, 163 Ga. 135 (135 S. E. 505), and the cases there cited. However, in mandamus and quo warranto cases this court has many times held that the law makes an exception to the general rule permitting a direct bill of exceptions to any decision or judgment which, though not final within itself, would have been a final disposition of the case if it had been rendered as claimed by the plaintiff in error. See Bridges v. Poole, 176 Ga. 500, 506 (168 S. E. 577). But no statute has been called to our attention, and we find none, which makes or purports to make any exception to the general rule laid down by Code (Ann.) § 6-701 in a condemnation case, and the ruling in Hagans v. Excelsior Electric Membership Corp., 207 Ga. 53 (60 S. E. 2d 162), is not authority for the position of the defendants in error that there is such an exception. In that case it was held that the bill of exceptions had not been prematurely sued out, and a motion to dismiss it was denied. There, it was again held that a bill of exceptions will lie to any judgment which, if ruled as contended by the plaintiff in error, would have constituted a final determination of the cause. We have examined the cases of Denham v. State Highway Board, 52 Ga. App. 790 (184 S. E. 631), and Stewart v. Board of Commrs. of Echols County, 66 Ga. App. 108 (17 S. E. 2d 203); and since we think the rulings there made are directly in conflict with the provisions of Code (Ann.) § 6-701, and for that reason unsound, we decline to follow them. See, in this connection, Martin v. Fulton County, 213 Ga. 761 (101 S. E. 2d 716).

As previously pointed out in this opinion, the Constitution of this State emphatically declares that private property cannot be taken for a public use until the owner is first paid just and adequate compensation for it. This provision of the Constitution is so paramount to any mere legislative enactment that for many years legislation respecting its operation was considered unnecessary. Harrison v. State Highway Department, 183 Ga. 290 (188 S. E. 445). This voice of the Constitution is mandatory, and it is elementary that neither the legislature nor the courts have any right to restrict, evade, or violate it in the slightest degree. The taking of private property for a public use is the exercise of a high power, and before such taking can be constitutionally accomplished all prerequisites must be complied with strictly. Thomas v. City of Cairo, 206 Ga. 336 (57 S. E. 2d 192). To comply both in letter and in spirit with this constitutional requirement, payment of just and adequate compensation to the owner must always precede the taking of his property for a public use. So, necessarily, a decision of the case in hand depends on the meaning of the word “taken” as that word is used in the provision of our Constitution with which we are now dealing. The condemnor insists that it means only an actual physical taking in toto of the owner’s land for a public use. The eondemnees contend that it not only means an actual physical taking of the owner’s land, but also means the taking of any substantial right of property which an owner has in his land. The contention of each is supported by some respectable authority, and we must confess that obiter language can be found fin some of the decisions of this court which does support both of them. But our constitutional provision emphatically declares that private property cannot be taken for a public use until the owner thereof is first paid for it, and a holding by this court that some substantial element or some substantial incident or right of property can be so taken from the owner without first paying him for his property would do violence to the provision and defeat the very purpose which the framers of our Constitution had in mind when they placed it in that instrument. The same constitutional provision which prohibits the taking of private property from the owner in toto for a public use until he is first paid for it likewise prohibits the taking of any substantial right which the owner has in his land,.it being axiomatic that the whole includes all of its parts. While the Constitution of this State expressly declares that an exercise of the right of eminent domain shall never be abridged (Code, Ann., § 2-2501), it also declares just as emphatically that an exercise of such right never carries with it the power to take private property for any public use without first paying the owner just and adequate compensation for it.

In this case and on May 8, 1957, the condemnor, through its mayor and board of aldermen, decided to take the property here involved for a necessary public use; and, as the record shows, its right to do so is not questioned or challenged by anyone. On May 10, 1957, it filed a proceeding against the property for the purpose of subjecting it to public servitude. On June 28, 1957, assessors, who had been selected in the manner and way provided by law, made an award of compensation for it, and such award was filed with the Clerk of the Superior Court of Fulton County and by him recorded as required by law. The condemnor declined to tender the amount of the award to the owners or to pay it'into the registry of the court for their benefit, but filed an appeal to a jury in the Superior Court of Fulton County. Does this amount to a taking of private property for a public use within the meaning of our constitutional provision respecting that subject? We think it does. On its own motion and for the purpose of ascertaining and fixing the amount which it should pay as just and adequate compensation for the property it had decided to take, the condemnor instituted the proceeding which the law supplies for that purpose; and that proceeding, after the property had been viewed and all interested parties had been fully heard, resulted in an award, fixing compensation for the property, by assessors, whose impartiality, intelligence, and integrity have not been questioned. The assessors’ award, which was filed and recorded in the office of the clerk of the superior court as provided by Code § 36-508, is a judgment by a tribunal competent in law to fix the rights and liabilities of the parties to the proceedings with reference to the matters and things involved. Oliver v. Union Point W.P.R. Co., 83 Ga. 257 (9 S. E. 1086); Central Ga. Power Co. v. Nolan, 135 Ga. 443 (69 S. E. 561); Thomas v. Central of Ga. Ry. Co., 169 Ga. 269, 271 (149 S. E. 884); Georgia Power Co. v. Fountain, 207 Ga. 361 (61 S. E. 2d 454); McGreggor v. W. L. Florence Construction Co., 208 Ga. 176 (65 S. E. 2d 809); Cable v. State Highway Board, 208 Ga. 593 (68 S. E. 2d 564). In the Oliver case, supra, p. 262, it was unanimously said: “The three assessors are to be sworn, hear evidence, and then by the concurrence of a majority assess the value and the damages. Their award in writing is to be filed in the office of the clerk of the superior court, and be by him recorded, after which it has the force and effect of a judgment or decree of the superior court.” And in the Cable case, supra, where all members of the court concurred, and where there was a collateral attack on the validity of the assessors’ award, it was held in headnote 2: “If the assessment is irregular or erroneous, it must be vacated and set aside in a direct attack upon the award.” As authority for this ruling, the court cited the Thomas case, supra, and two other cases decided by this court. And respecting such a judgment, the condemnor cannot dismiss his condemnation proceeding and by such act destroy its legal effect. Oliver v. Union Point & W.P.R. Co.; Central Georgia Power Co. v. Nolan; Georgia Power Co. v. Fountain; all supra. Consequently, at that stage of the proceeding “just and adequate” compensation for the property involved was fixed by judgment or decree at the condemnor’s instance, and it could no longer excuse its failure to pay for it on the ground that its value was unascertained. At that time it should have tendered to the condemnees the assessed value of the property, or paid it into the registry of the court on their refusal to accept it, and since the recorded award adjudicated value of the property, we hold that such tender or such payment was a condition precedent to its right of appeal to a jury; it could not at that time refuse to pay the amount awarded for the property and at the same time insist upon its right to take it. Such a position is wholly inconsistent with the constitutional provision that payment of just and adequate compensation must always precede a taking. Code Section 36-104, declares that . . the right of eminent domain cannot be exercised without first providing for just compensation to the owner for the interference with his exclusive rights.” And “The term 'property’ is a very comprehensive one, and is used not only to signify things real and personal owned, but to designate the right of ownership and that which is subject to be owned and enjoyed.” Wayne v. Hartridge, 147 Ga. 127, 132 (92 S. E. 937). “The term [property] comprehends not only the thing possessed, but also, in strict legal parlance, means the rights of the owner in relation to land or a thing; the right of a person to possess, use, enjoy, and dispose of it, and the corresponding right to exclude others from the use.” 18 Am. Jur. 787, § 156. We do not think anyone could or would seriously contend that a proceeding to condemn land which has been prosecuted to the extent of the present one does not interfere with and greatly restrict the owner’s property rights in and to the same and to a large extent deprive him of his right to use and enjoy it; and as the word “taken” is construed in many other jurisdictions, a taking of property for which compensation must be first paid does not require an actual physical taking, but may consist in an interference with the rights of ownership, use and enjoyment, or any other right incident to property. See, in this connection, 29 C.J.S. 917, § 110. In Smith v. Erie R. Co., 134 Ohio St. 135, 142 (16 N. E. 2d 310), it was said: “In some of the early cases in this country, the courts, adhering to the conception of property as the thing owned, construed the taking alluded to in state constitutions to be a 'taking altogether,’ an appropriation and dispossession of the owner, which deprived him of the corpus of the property and compensation was limited accordingly. The broader view, which now obtains generally, conceives property to be the interest of the owner in the thing owned, and the ownership to afford the owner the rights of use, exclusion and disposition. Under this broad construction there need not be a physical taking of the property or even dispossession; any substantial interference with the elemental rights growing out of ownership of private property is considered a taking.” In the circumstances of this case, and for the reason above stated, the trial judge should have dismissed the condemnor’s appeal; it was error not to do so.

Judgment reversed.

All the Justices concur, except Wyatt, P.J., Almand and Mobley, JJ., who dissent.