DeKalb County v. Trustees, Decatur Lodge No. 1602 ( 1978 )

Nichols, Chief Justice,

dissenting.

The majority of this court has ignored stare decisis and has made bad law. The majority holds that these matters address themselves to the General Assembly. What, then, is the purpose of our Constitution? What, then, is the role of this court? Is it really the province of the General Assembly to interpret the Constitution?

Government and certain regulated businesses acting with the permission of government can decree that a person’s largest investment, the home for which he has made payments during his entire working life, shall be leveled to the ground. The Constitution of Georgia requires, however, that the homeowner be made whole financially. Anything less than a monetary award that truly will make the displaced homeowner whole will not pass muster under our Constitution. I am astonished that the majority of this court has held to the contrary. The people of Georgia surely will demand restoration of their rights by way of a constitutional amendment.

Condemning authorities should not be in a position to coerce a homeowner into accepting less than the full value of his property based upon a threat, expressed or implied, that if he refuses the sum tendered, he will be subjected to protracted and costly litigation against the condemning authority’s legions of lawyers and experts. The familiar statue of the American Minuteman with his flintlock rifle at the ready is a symbol of our freedom from the oppressions of our former king’s red-coated armies. When in these times a citizen finds his private property invaded by an army of surveyors, engineers, planners, real estate appraisers and attorneys, employed by the condemning authority using the taxes or utility rates he and other citizens have paid, the front of the line of defense is the trial lawyer sustained by a sum of money sufficient to pay the legal fees and myriad other costs and expenses for which a landowner assumes liability when he dares to face a condemning authority in court. It should be obvious that a landowner who prevails in court on the issue of value is not made whole if he must pay his attorney fees and other costs and expenses of litigation because such fees, costs and expenses reduce the amount of his recovery.

I cannot join the majority in such wholesale destruction of the rights of property owners. Instead, I dissent.