McCoy v. Sanders, 41940

Citation148 S.E.2d 902,113 Ga.App. 565
Decision Date29 April 1966
Docket NumberNo. 41940,No. 3,41940,3
PartiesFrank S. McCOY v. Carl E. SANDERS, Governor, et al
CourtUnited States Court of Appeals (Georgia)

Syllabus by the Court

A suit by the owner for damages to realty occasioned by the law enforcement officers of the State and a county in seeking to locate the body of a murder victim cannot be maintained against the State or the county; the action of the officers was under and pursuant to the police power of the State and its political subdivision. The Constitutional provisions of Art. I, Sec. III, Par. I (Code § 2-301) relating to the taking or damaging of property for public purposes have no relation to damage suffered by action under the police power; these relate to the eminent domain power of the government and relate to the taking or damaging of property in connection with an improvement for public use.

Frank S. McCoy brought suit against the Governor, Attorney General and Auditor of the State of Georgia in their official capacities, and against Rockdale County, seeking to recover damages alleged to have resulted when the Georgia Bureau of Investigation and the Sheriff of Rockdale County, in the court of investigating a murder and having reason to believe that the deceased may have been thrown into a fish pond on plaintiff's place, drained his pond in an effort to find the body. He alleges that the fish in the pond were all lost, the flowers and shrubs planted around the pond were trampled down and destroyed, and that the pond was left with a weakened dam, all of which reduced the value of his place from $25,000 to $20,000. The suit is brought under Art. I, Sec. III, Par. I of the Constitution (Code § 2-301) providing that 'Private property shall not be taken, or damaged, for public purposes, without just and adequate compensation being first paid.'

General demurrers on behalf of both the State and the county were sustained and plaintiff appeals.

Adair, Goldthwaite, Stanford, Daniel & Horn, T. Emory Daniel, Atlanta, for appellant.

Arthur K. Bolton, Atty. Gen., Richard L. Chambers, E. J. Summerour, Asst. Attys. Gen., Atlanta, A. R. Barksdale, Conyers, for appellees.


We affirm. We are of the opinion, as was conceded by counsel for appellant on oral argument, that there could be no question but that the officers seeking to locate the body of the murder victim were acting under the police powers of the State.

'The police power is that inherent and plenary power in the state over persons and property, when expressed in the legislative will, which enables the people to prohibit all things inimical to the comfort, safety, health, and welfare of society, and is sometimes spoken of as the law of overruling necessity.' 23 Ill.Law R. 186. 'Police powers have their origin in the law of necessity,' and 'are inherent in every sovereignty.' Prentice Police Powers (1894) pp. 4, 6. The power extends to 'the protection of the lives, health and property of the citizen, and to the preservation of good order and public morals,' Northwestern Fertilizing Co. v. Village of Hyde Park, 97 U.S. 659, 669, 24 L.Ed. 1036, is not subject to any definite limitations, but is coextensive with the necessities of the case and the safeguard of the public interest. Camfield v. United States, 167 U.S. 518 (17 S.Ct. 864, 42 L.Ed. 260). It includes the 'prevention and punishment of injuries and offenses to the public.' People v. Brazee, 183 Mich. 259, 149 N.W. 1053, L.R.A.1916E, 1196.

It is not to be confused with the power of eminent domain, under which property is acquired for the making of public improvements upon condition that the owner be compensated for the taking or damaging of his property. 'This police power or the law of overruling necessity is not controlled by the constitutional limitation that private property shall not be taken for public use without compensation, which was not designed for, and should not be extended to such cases.' Prentice, Police Powers, supra, p. 6. And see, 2 Kent Com. 338; Bl.Com. IV, 30.

'Under certain circumstances and conditions, a municipality may, acting under its police power for the general welfare of the public, take or use the property of a person or corporation without paying compensation therefor * * *.' Atlantic Coast Line R. Co. v. Southern R. Co., 214 Ga. 178, 182, 104 S.E.2d 77, 80. Cf. Crum v. Bray, 121 Ga. 709, 49 S.E. 686; Curtis v. Town of Helen, 171 Ga. 256, 155 S.E. 202; Hall v. Twin City, 203 Ga. 52, 45 S.E.2d 412; Frank v. City of Atlanta, 72 Ga. 428; Dunbar v. City Council of Augusta, 90 Ga. 390, 170 S.E. 907; Americus v. Mitchell, 79 Ga. 807, 5 S.E. 201; City of Macon v. Southern Bell T. & T. Co., 89 Ga.App. 252, 267, 79 S.E.2d 265. 'Uncompensated obedience to a regulation enacted for the public safety under the police power of the state is not a taking or damaging without just compensation of private property, or of private property affected with a public interest.' Cleveland v. City Council of Augusta, 102 Ga. 233, 240, 29 S.E. 584, 587, 43 L.R.A. 638.

At common law the State might destroy buildings in an effect to stop the spread of a conflagration under its police power, and the owner was entitled to no compensation. 2 Kent Com. 339; Bowditch v. City of Boston, 101 U.S. 16, 25 L.Ed. 980; United States v. Caltex, 344 U.S. 149, 73 S.Ct. 200, 97 L.Ed. 157. A statutory provision of payment, however, may be provided. See Code § 88-401. In Georgia this was done from the adoption of the first Code in 1863, until the statute was apparently repealed by Ga.L.1964, pp. 499, 650, Code Ann. § 88-9902(2)(21). Being in derogation of the common law, a strict construction of the statute was required and it could not be extended beyond the express provisions. Bowditch v. Boston, supra; Klamath and Moadoc Tribes v. United States, 296 U.S. 244, 250, 56 S.Ct. 212, 80 L.Ed.202. Provision was made for payment only when houses are destroyed to prevent the spread of fire or of contagious diseases, and there have been instances when compensation was paid under it. See President and Councilmen of the Town of Dawson v. Kuttner, 48 Ga. 133; Vandevender v. City of Atlanta, 150 Ga. 443, 104 S.E. 227. But a feather bed on which a victim of scarlet fever had slept was destroyed as a nuisance and without payment of compensation. Mayor &c. of Savannah v. Mulligan, 95 Ga. 323, 22 S.E. 621, 29 L.R.A. 303. See generally Saye, The Tort Liability of Municipalities in Georgia, 17 G.B.J. 456; Sentell, The Law of Municipal Tort Liability in Georgia (1964), p. 131.

In a general way the police power extends to all the great public needs. It may be put forth in the aid of what is sanctioned by usage, or held by the prevailing morality of strong and preponderant opinion to be greatly and immediately necessary to the public welfare.

'(F)or the state or a municipal corporation to take private property without compensation, except where it does so under a valid exercise of the police or other sovereign power, constitutes a deprivation of property without due process of law within the meaning of the Fourteenth Amendment.' (Emphasis supplied). 5 McQuillan on Municipal Corporations (3d Ed.) p. 519, § 19.19.

But the exercise of police power is not so proscribed for 'neither the (Fourteenth) amendment-broad and comprehensive as it is-nor any other amendment, was designed to interfere with the power of the state, sometimes termed its police power * * *.' Barbier v. Connolly, 113 U.S. 27, 31, 5 S.Ct. 357, 359, 28 L.Ed. 923. '(It is) the most essential of powers, at times the most insistent, and always one of the least limitable of the powers of government.' District of Columbia v. Brooke, 214 U.S. 138, 149, 29 S.Ct. 560, 563, 53 L.Ed. 941.

'All property is held subject to the police power of the state. * * * The due process clauses are not intended to limit the right of the state to properly exercise the police power in the enhancement of public safety. * * * Damages cannot be recovered by one because he incurs expense in obeying a police regulation enacted for the common welfare and safety of the public. * * * The police power has never been surrendered by the states. * * * (and) (t)o the exercise of police power, all rights of natural persons and corporations are subject.' Atlantic C.L.R. Co. v. State, 135 Ga. 545, 557, 562, 69 S.E. 725, 731, 733, 32 L.R.A.,N.S., 20.

'The safeguarding of society by the prosecution of crimes against it is a sovereign attribute inherent in all governments, and for mistakes in exercising this sovereign right there can be no liability against the government without its consent.' United States v. Keegan, D.C., 71 F.Supp. 623.

The eminent domain provisions of the Constitution are, as we have observed, a thing apart from the police power. Under these the property owner is entitled to compensation if his property is taken or damaged 'by reason of the construction or operation of any improvements made for the use of the public.' Campbell v. Metropolitan Street R. Co., 82 Ga. 320, 325, 9 S.E. 1078, 1079. And the 'damage' to the property within the meaning of the Constitution is some physical interference with property or physical interference with a right to use appurtenant property in connection with an improvement for public use. Austin v. Augusta Terminal R. Co., 108 Ga. 671, 34 S.E. 852, 47 L.R.A. 755.

'The power of eminent domain is that sovereign...

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