Calhoun v. State Highway Dept.

• Decision Date: 19 January 1967
• Docket Number: No. 23867,23867
• Citation: 153 S.E.2d 418,223 Ga. 65
• Parties: Vennie CALHOUN et al. v. STATE HIGHWAY DEPARTMENT.
• Court: Georgia Supreme Court

Page 418

153 S.E.2d 418

223 Ga. 65

Vennie CALHOUN et al. v. STATE HIGHWAY DEPARTMENT.

No. 23867.

Supreme Court of Georgia.

Jan. 19, 1967.

Rehearing Denied Jan. 25, 1967.

Syllabus by the Court

1. The motion to dismiss because Rule 52 of this court was allegedly not complied with in the consideration of the grant of the writ of certiorari is without merit and is denied.

2. The charge that in ascertaining what would be just and adequate compensation the jury could consider evidence that knowledge of the impending taking had enhanced the value of the property taken accorded with Hard v. Housing Authority of the City of Atlanta, 219 Ga. 74, 132 S.E.2d 25, and was sound. It was error for the Court of Appeals to reverse because of this charge solely in virtue of the 1966 Act (Ga.L.1966, p. 320) which purports to render such evidence inadmissible.

A certiorari writ was granted in this case of condemnation to review the Court of Appeals in its decision reported in State Highway Department v. Calhoun, 114 Ga.App. 501, 151 S.E.2d 806, where it was held that the lower court erred in refusing to grant a motion for new trial complaining that the court erred in charging the jury that it should look to all circumstances affecting the value of land taken at the time of taking including enhancement resulting from knowledge of the impending taking. The applicant alleges error in that the trial court correctly charged the law and the Court of Appeals should not have reversed because (1) the appellant failed to raise that question in the lower court in conformity with Code Ann. § 70-207(a) (Ga.L.1965, pp. 18, 31, as amended); (2) the 1966 Act defining just and adequate compensation (Ga.L.1966, p. 320), which allegedly changed the method of determining value of property taken, which specifically denies consideration of enhancement resulting from knowledge of the impending taking, deprived the appellee of vested rights and therefore should not have been applied since it was adopted as law after the trial of the case; (3) its application by the Court of Appeals was in violation of constitutional guarantees specifically provided by the Georgia Constitution; and (4) the 1966 Act, supra, is otherwise unconstitutional. Because of the apparent confusing state of the law as to what rule of the law the Court of Appeals should have applied, this court granted certiorari.

Robert E. Knox, Warren D. Evans, Thomson, for appellants.

Arthur K. Bolton, Atty. Gen., Richard L. Chambers, Asst. Atty. Gen., E. J. Summerour, Asst. Atty. Gen., Atlanta, D. Field Yow, Deputy Asst. Atty. Gen., Augusta, L. Clifford Adams, Jr., Deputy Asst. Atty. Gen., Atlanta, Lon Fleming Thomson, for appellee.

DUCKWORTH, Chief Justice.

1. It is stipulated that the lands involved were taken on May 4, 1965. The record shows that the trial ended December 1, 1965, and the 1966 Act defining just and adequate compensation (Ga.L.1966, p. 320) was approved March 10, 1966. This court ruled in Hard v. Housing Authority of the City of Atlanta, 219 Ga. 74, 132 S.E.2d 25, supra, that, in proving value, evidence showing that an enhancement in value resulted from knowledge of the impending taking was admissible. The 1966 Act provides in effect that such evidence is not admissible. The Court of Appeals reasoned that such cases as City of Valdosta v. Singleton, 197 Ga. 194, 28 S.E.2d 759; Fulton County v. Spratlin, 210 Ga. 447, 80 S.E.2d 780; and Fulton Bag & Cotton Mills v. Williams, 212 Ga. 783, 95 S.E.2d 848, required them to apply the law as it existed at the time of their decision, that is, the 1966 Act, rather than the law as it existed at the trial as set out in the Hard case; and upon this reasoning reversed. The motion for rehearing challenged this ruling, pointing out that in each of the decisions relied upon it was expressly recognized that such rule should not apply to destroy vested rights. This same position is taken in the application for certiorari, and we granted the writ because of this assignment. Consequently, the motion to dismiss, based upon Rule 52, which requires that contentions made in the application must have been urged in a motion for rehearing, is manifestly without merit. The 1960 amendment of Art. I, Sec. III, Par. I, of the Constitution of 1945 (Code Ann. § 2-301; Const. of 1945) removing the requirement of 'being first paid' as to property taken for public roads and streets, did not alter the demand that 'just and adequate compensation' be paid as provided in Constitution. The issue in this case is not when payment must be made but what evidence is admissible to prove value at the time of taking. The motion to dismiss the application as having been improvidently granted is without merit.

2. The decisive question here is: Does the Constitution, Art. I, Sec. III, Par. I, supra, vest in every land owner in Georgia a right to employ evidence, held by this court in the Hard case, supra, to be admissible in proof of 'just and adequate compensation' for same when taken for public use? It commands that he be paid just and adequate compensation. What is just and adequate is a justiciable question, and under the constitutional clause (Code Ann. § 2-123; Const. of 1945) requiring separation of powers, only the judiciary can lawfully determine that question. Can it be seriously doubted that the bill of rights vests interests in the individual? None of the three separate departments of the state-legislative, executive or judicial, has the power to reduce or abolish the constitutional right of the owner to receive just and adequate compensation for his private property taken for a public use. Only the judiciary can adjudicate the amount of such compensation and what evidence is relevant and admissible for that purpose. This court...