Earth Management, Inc. v. Heard County, 37303

• Decision Date: 27 October 1981
• Docket Number: No. 37303,37303
• Citation: 283 S.E.2d 455,248 Ga. 442
• Parties: , 16 ERC 1720, 12 Envtl. L. Rep. 20,347 EARTH MANAGEMENT, INC. v. HEARD COUNTY et al.
• Court: Georgia Supreme Court

Page 455

283 S.E.2d 455

248 Ga. 442, 16 ERC 1720, 12 Envtl.

L. Rep. 20,347

EARTH MANAGEMENT, INC. v. HEARD COUNTY et al.

No. 37303.

Supreme Court of Georgia.

Oct. 27, 1981.

Rehearing Denied Nov. 12, 1981.

Conley Ingram, Robert D. McCallum, Jr., James S. Stokes, IV, Nill V. Toulme, Alston, Miller & Gaines, Atlanta, for Earth Management, Inc.

Thurman E. Duncan, Duncan, Thomasson & Mallory, LaGrange, Robert S. Dennis, Joseph J. Anthony, Sp. Master, Franklin, for Heard County et al.

CLARKE, Justice.

Earth Management, Inc., appeals the order of the superior court authorizing the condemnation of 276 acres of land in Heard County to be used as a recreational facility.

The issues to be determined are the following: Whether the appeal is properly in this court; whether the county's right of eminent domain was preempted by the Hazardous Waste Management Act; whether Earth Management was deprived of due process in that it did not have a proper opportunity to contest the county's right to condemn; and whether the condemnation proceeding was brought in good faith.

The events leading up to this appeal began on March 29, 1980, when Hershel W. Parmer executed an option granting to Earth Management the right to purchase the land in question. Earth Management was not a legal entity at that time but was duly incorporated on June 4, 1980. During the ensuing months, Earth Management began studies and investigations leading toward the acquisition of necessary permits and toward the location, construction and operation of a hazardous waste disposal facility on the optioned real estate. Subsequent to the beginning of these activities but before title was vested in Earth Management, the county instituted condemnation proceedings naming Parmer as the owner. These proceedings were filed on September 26, 1980, and on October 1, 1980, Earth Management filed for intervention. Parmer conveyed the land to Earth Management on October 2, 1980, and by order of October 20, the superior court allowed Earth Management to intervene. The superior court also referred all motions to the special master who had been named to hear the case under Code Ann. Ch. 36-6A. Among the motions were those which sought injunctive relief and attacked the right of the county to condemn.

After an evidentiary hearing, the special master filed his award on November 7, 1980. The award found against the injunctive relief, found for the county's right to condemn, and established the fair market value of the land condemned. On the same day of its filing, the award was made the judgment of the court. Earth Management filed its response in the superior court appealing the amount awarded, again seeking injunctive relief, and moving that the judgment be vacated.

The superior court stayed its judgment pending the hearing on the issues raised by Earth Management. After the hearing the motions were denied leaving the judgment in effect. We reverse.

1. Jurisdiction

At the outset it is necessary to decide whether the appeal should be dismissed or, alternatively, transferred to the Court of Appeals. Heard County argues that one of these actions is mandated by the law.

In contending the appeal should be dismissed, Heard County argues that since the special master has completed his work, the appeal of the motion to enjoin is moot. In support of this position, Heard County points to Fountain v. DeKalb County, 238 Ga. 14, 231 S.E.2d 49 (1976), and Tingle v. Georgia Power Company, 147 Ga.App. 775, 250 S.E.2d 497 (1978). These cases hold that once an award is entered by the special master, it is too late to contest the propriety of the proceeding. This is ordinarily the rule because the most common attack upon a condemnation case is one in which the condemnee seeks to enjoin the special master. This is not what happened here. Condemnee's motion to enjoin related not just to the special master but to the proceeding itself. Even more significant is the fact that the motion was referred to the special master by the trial court. Therefore, there was no judgment as to the issue until after the special master made his award. If we disallowed an appeal of that judgment, we would set the stage for the circumvention of any appeal of a denial of an injunction in a condemnation case. The trial court could simply refer the issue of injunction to the special master, who could then include it in his award, and the right of appeal would be effectively evaded. This we cannot allow.

In addition, this is an appeal from the denial of a motion to set aside the judgment as well as from the judgment itself. The condemnee is entitled to a review of that denial.

Heard County also suggests that the issue, if not moot, is premature. We cannot agree since the denial of injunctive relief is immediately appealable under Code Ann. § 6-701(a)(3). This is true even though there is a jury trial pending on the question of damages. The equitable features of this case, as well as the constitutional questions regarding the statutory special master procedure raised by Earth Management, give this court jurisdiction. There is no merit to the argument that the case should be transferred to the Court of Appeals.

2. Preemption

Earth Management contends that through the Georgia Hazardous Waste Management Act, Code Ann. § 43-2901, et seq. (Ga.L.1979, p. 1127), the State has preempted the authority of a county to exercise its right of eminent domain. Specifically, Earth Management insists that Code Ann. § 43-2920 prohibits a political subdivision from exercising its right of eminent domain against a hazardous waste facility. It says this is so even though Code Ann § 43-2920 makes its prohibition "subject to the provisions of the Constitution of Georgia."

The right of eminent domain is conferred upon counties by the Constitution of Georgia. Art. IX, Sec. V, Para. IV (Code Ann. § 2-6204). Earth Management contends, however, that the constitutional grant of home rule to counties and municipalities [Constitution of Georgia, Art. IX, Sec. II, Para. I (Code Ann. § 2-5901)] diluted the power of eminent domain. Code Ann. § 2-5901(c) provides: "The power granted to counties in Subparagraphs (a) and (b) above shall not be construed to extend to the following matters or any other matters which the General Assembly by general law has preempted or may hereafter preempt, but such matters shall be the subject of general law, or the subject of local acts of the General Assembly to the extent that the enactment of such local acts is otherwise permitted under this Constitution." One of the matters thereafter enumerated is "action affecting the power of eminent domain."

Heard County takes the position that subsection (c) of the home rule provision does not limit the eminent domain power of counties but simply makes it clear that counties are not authorized by home rule to enact separate eminent domain procedures. These procedures are set out by general law and must be followed by the counties in exercising their constitutional power of eminent domain.

We do not reach the merits of this question for the reason that the Georgia Hazardous Waste Management Act is not applicable to this case. Code Ann. § 43-2920 mandates that the preemption features of the Act come into operation only as to hazardous waste facilities "... holding a valid Hazardous Waste Facility Permit issued under the provisions of the Chapter and the rules and regulations." Earth Management argues that this section does not mean what it clearly says but instead contemplates that preemption shall go into operation as soon as an application for a permit has been filed. It is an elementary principle of statutory construction that ordinary signification shall be applied to all words in a statute. Code Ann. § 102-102(1). In 1848, this court held that "The current of authority in this country, at least at the present day, is in favor of reading Statutes according to the natural and most obvious import of the language, without resorting to subtle and forced constructions, for the purpose of either limiting or extending their operation." Persons v. Hight, 4 Ga. 474, 485-6 (1848). This principle remains intact today. Applying it here, we find that the preemption feature of the Georgia Hazardous Waste Management Act operates only in regard to a facility already holding a valid permit. It has been stipulated that Earth Management has no such permit. Therefore, we cannot reach the question whether the preemption feature of the Act would operate to defeat Heard County's constitutionally granted power of eminent domain.

3. Due Process.

According to Earth Management, the judgment of the trial court is fatally defective because of constitutional due process deficiencies. Earth Management insists that it was denied due process by the special master's failure to give any notice to Earth Management when he filed his award with the superior court. It also takes the position that this failure prevented it from filing and being heard on objection in the superior court prior to the award's being made the final judgment of the court.

Heard County counters with the argument that the Condemnation Before Special Master, Code Ann. Ch. 36-6A, has been held to be constitutional and not violative of due process rights of the condemnee. Sweat v. Georgia Power Co., 235 Ga. 281, 219 S.E.2d 384 (1975). The county also contends that the fact of an award's being made the judgment of the court on the same day the award is filed and before a copy is received by the condemnee, does not violate due process. It contends this is true because the special master...