Department of Transp. v. Doss, 31810

• Decision Date: 08 February 1977
• Docket Number: No. 31810,31810
• Citation: 238 Ga. 480,233 S.E.2d 144
• Parties: DEPARTMENT OF TRANSPORTATION v. Oliver H. DOSS et al.
• Court: Georgia Supreme Court

Page 144

233 S.E.2d 144

238 Ga. 480

DEPARTMENT OF TRANSPORTATION v. Oliver H. DOSS et al.

No. 31810.

Supreme Court of Georgia.

Feb. 8, 1977.

Rehearing Denied March 1 and March 8, 1977.

Arthur K. Bolton, Atty. Gen., William C. Joy, Asst. Atty. Gen., Atlanta, Edward B. Liles, Asst. Glynn County Atty., Brunswick, for appellant.

Hutto, Palmatary, Boshears & Magda, Jack S. Hutto, Edward E. Boshears, Brunswick, for appellees.

Troutman, Sanders, Lockerman & Ashmore, Allen E. Lockerman, J. Kirk Quillian, Atlanta, amicus curiae.

UNDERCOFLER, Presiding Justice.

This is a condemnation case. The appeal is from a judgment awarding attorney fees and costs of litigation to the condemnees. The judgment was predicated upon this court's decision in White v. Ga. Power Co., 237 Ga. 341, 227 S.E.2d 385, 388 (1976). We affirm. As stated in White, ". . . the words 'just and adequate compensation' contained in our Constitution are to be interpreted by the judiciary to include attorney fees incurred by a condemnee or condemnees in an eminent domain case and are also to be interpreted to include all reasonable and necessary expenses of litigation incurred by such condemnees in eminent domain cases." Implicitly the attorney fees must be reasonable also.

This conclusion is not altered by the constitutional amendment ratified on November 7, 1972, which is set forth in Art. I, Sec. III, Par. I(2) of the Georgia Constitution of 1976 (Code Ann. § 2-301(2)). The amendment authorizes the General Assembly to require the state and other entities, ". . . to provide relocation assistance and payments to persons displaced by public projects . . ." and ". . . to establish and implement acquisition policies and practices and provide for the payment of reimbursement of necessary expenses of persons whose properties are acquired in connection with the acquisition of real property for public projects . . ." The amendment specifically authorizes the General Assembly to provide for payments required by the Federal Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (Public Law 91-646, 91st Congress, approved January 2, 1971). That federal act as well as Acts 1973, pp. 947, 1029, Acts 1973, pp. 512, 513 (Code Ann. §§ 95A-623, 99-3701 et seq.) provide for various payments in federal aid projects including relocation expenses, replacement housing expenses, prepayment mortgage penalties and other items as well as litigation expenses when a condemnation proceeding is abandoned, or a final judgment holds the property can not be acquired by condemnation, or it is an inverse condemnation proceeding. See Acts 1973, pp. 947, 993, 1000 (Code Ann. §§ 95A-401(f), 95A-503(c)) directing counties and cities to comply with Public Law 91-646 and Code Ann. § 95A-623 apparently without limitation to federal aid projects.

Appellant argues that at the time of the ratification of the said 1972 constitutional amendment attorney fees and litigation costs were not a part of just and adequate compensation in condemnation cases and were only authorized where provided by statute. Bowers v. Fulton County, 227 Ga. 814, 183 S.E.2d 347 (1971). Appellant concludes that the people have specifically addressed the matter of attorney fees and litigation costs in the 1972 amendment by authorizing the General Assembly to provide therefor. Appellant argues that consequently the people in expressing their consent for the payment of attorney fees and litigation costs have "foreclosed such payments as part of just and adequate compensation."

Appellant overlooks the fact that a constitutional amendment was not necessary to authorize the General Assembly to provide by statute for attorney fees and costs of litigation in eminent domain proceedings. It already had that authority. Bowers v. Fulton County, supra. The purpose of the amendment essentially was to authorize the General Assembly to permit governmental entities acquiring private property for public projects to expend public funds to comply with Public Law 91-646 so as to obtain full advantage of federal monies available for such projects; however, it is not limited to federal aid projects. As stated in the amendment, "The providing of all of such relocation assistances and payments and, in connection with the acquisition of real property for public projects or programs, the establishing of all of such policies and practices and the paying or reimbursing of all of such necessary expenses, are declared to be necessary, among other reasons, in order to avoid the loss of large sums of money which will otherwise be made available to the foregoing public entities as financial assistance by the United States of America and shall constitute governmental functions undertaken for public purposes, and the powers of taxation may be exercised and public funds expended in furtherance thereof." In our opinion the amendment authorized the General Assembly to permit the various governmental entities to make certain statutory grants, including attorney fees and costs of litigation, in an administrative capacity. See DeKalb County v. United Family Life Ins. Co., 235 Ga. 417, 421, 219 S.E.2d 707 (1975). The amendment simply does not address the question of what elements of damage comprise "just and adequate compensation" in eminent domain proceedings. It appears the General Assembly recognized this in Ga.L.1973, pp. 512, 519 (Code Ann. § 99-3710) where it is stated, "Nothing contained in this Chapter shall be construed as creating in any condemnation proceeding brought under the power of eminent domain, any element of value or of damage." Accordingly we hold that the constitutional amendment ratified on November 7, 1972, now appearing as Art. I, Sec. III, Par. I(2) of the Georgia Constitution of 1976 (Code Ann. § 2-301(2)) does not preclude a judicial construction that reasonable attorney fees and reasonable costs of litigation are elements of damages under the constitutional mandate requiring just and adequate compensation to be paid when private property is taken in eminent domain proceedings.

We reject appellant's contentions that the payment of attorney fees and costs of litigation in condemnation cases brought by the Department of Transportation violates the constitutional provisions prescribing the purposes for which taxation may be exercised (Code Ann. § 2-4701) and prohibiting gratuities (Code Ann. § 2-1413). When the Constitution mandates these payments it necessarily follows that they are payable from public revenues and are not gratuities. Likewise there is no violation of separation of powers. Mulkey v. Quillian, 213 Ga. 507, 100 S.E.2d 268 (1957) is inapposite. That case involved the constitutionality of a statute which authorized the Highway Department to lend money to political subdivisions or authorities for relocating utility facilities from the rights of way of State-aid roads. Here we are concerned with just and adequate compensation to a private property owner whose property has been taken by the state under its right of eminent domain. Reasonable attorney fees and reasonable costs of litigation in such proceeding are part of the compensation.

We reject also appellant's contention that the criteria for determining attorney fees and litigation costs set out in White v. Ga. Power Co., supra, is so vague that it violates due process of law, deprives the Department of Transportation of the protection of its property in an impartial manner, and denies it the right to defend its causes in the courts of this State. A hearing and judicial determination is provided. Whether attorney fees and litigation costs should be granted and the amount thereof is a question of evidence. As stated in White the court devised an interim procedure and the General Assembly may provide another appropriate manner to determine these damages.

There is no constitutional right to trial by jury in eminent domain cases. Oliver v. The Union Point and White Plains RR, 83 Ga. 257, 261, 9 S.E. 1086 (1889); Mills on Eminent Domain (2d Ed., 1888), p. 239, § 91; 2 Lewis, Law of Eminent Domain (3rd Ed., 1909), p. 922, § 509; 1 Nichols on Eminent Domain (3rd Ed., 1976), § 4.105 et seq. We do not find any authority which supports appellant's contention that the state has a common law right to a jury trial in eminent domain cases. We find the General Assembly has not provided for jury trial on the issue of the amount of attorney fees and litigation costs.

Appellant contends further that Code Ann. § 95A-616 requiring it to pay interest on the attorney fees and litigation costs from the date of taking is contrary to Art. III, Sec. VIII, Par. XII of the Georgia Constitution of 1976 prohibiting gratuities (Code Ann. § 2-1413). Appellant did not raise the unconstitutionality of the statute in the trial court and can not raise it for the first time on appeal.

There was no error in awarding attorney fees in the amount of $300.00 for the services of Oliver H. Doss, Jr. The record shows he is an attorney and performed legal services for the condemnees in the litigation.

Judgment affirmed.

All the Justices concur except GUNTER, JORDAN and HALL, JJ., who dissent.

HILL, Justice, concurring.

I concur in the opinion and judgment of the court. The issue is whether the words "just and adequate compensation" include attorney fees and necessary expenses incurred by condemnees in eminent domain cases. Code Ann. § 2-301. The majority opinion finds that they do and I concur.

Moreover, in Bowers v. Fulton County, 227 Ga. 814, 183 S.E.2d 347 (1971), this court decided the question against condemnees. The vote in that case was 4 to 3. Less than a year ago, in White v. Georgia Power Co., 237 Ga. 341, 227 S.E.2d 385 (1976), this court decided the question in favor of condemnees. The vote was 4 to 3. We could in this case by 4 to 3 vote overrule White and reinstate Bowers. ¹ Our system cannot withstand such indecision. The public we serve would never...