State Highway Dept. v. Respess, 41099

• Decision Date: 08 June 1965
• Docket Number: No. 3,No. 41099,41099,3
• Citation: 111 Ga.App. 787,143 S.E.2d 434
• Parties: STATE HIGHWAY DEPARTMENT v. E. Q. RESPESS
• Court: Georgia Court of Appeals

Page 434

143 S.E.2d 434

111 Ga.App. 787

STATE HIGHWAY DEPARTMENT v. E. Q. RESPESS.

No. 41099.

Court of Appeals of Georgia, Division No. 3.

June 8, 1965.

Syllabus by the Court

1, 2. The taking of condemnee's land under Code Ann. Ch. 36-13 was not in violation of his constitutional rights for any reason assigned.

3, 4. The evidence failed to show that the taking of condemnee's land was done in bad faith or was an improper use or an abuse or misuse of the powers of Code Ann. Ch. 36-13.

The State Highway Department filed condemnation proceedings against certain land and E. Q. Respess, the condemnee, pursuant to the provisions of Code Ann.Ch. 36-13. The condemnee filed an answer to the petition, a notice of appeal for jury trial, a petition for hearing by a special master, and a petition to vacate the declaration of taking. After hearing evidence, the trial court rendered an order setting aside the declaration of taking. Afterwards the condemnor made a motion to vacate the order setting aside the declaration of taking, and the trial court, after hearing, entered judgment denying the condemnor's motion.

The condemnor excepts to the judgment setting aside the declaration of taking and to the judgment denying the condemnor's motion to vacate the previous order.

Eugene Cook, Atty. Gen., Richard L. Chambers, E. J. Summerour, Asst. Attys. Gen., Atlanta, John McCannon, Howard Wallace, Deputy Asst. Atty. Gen., Jonesboro, for plaintiff in error.

Joe Salem, Atlanta, for defendant in error.

BELL, Presiding Judge.

1. The condemnee's complaints, as gathered from the allegations of his pleading to vacate the declaration of taking, are (1) that the proceeding to condemn his property under Code Ann.Ch. 36-13 is in violation of his rights under Art. I, Sec. III, Par. I of the Constitution of 1945, which prohibits the taking or damaging of private property for public purposes without just and adequate compensation being first paid; (2) that the proceeding under Code Ann.Ch. 36-13 denies the condemnee the equal protection of the laws guaranteed by the Fourteenth Amendment of the Constitution of the United States; (3) that the taking of the condemnee's land was done in bad faith and was an improper use and an abuse and misuse of the powers of Code Ann.Ch. 36-13 in that none of the circumstances under which the condemnor would be authorized to proceed under the provisions of the Chapter had been determined to exist as required by Code Ann. § 36-1301; and (4) that the taking of the condemnee's land was in bad faith and was an improper use and an abuse and misuse of the powers of Code Ann.Ch. 36-13 in that the condemnor deposited in the registry of the court estimated compensation of $40,000, knowing that this sum was not just and adequate compensation. The condemnee's argument upon both constitutional grounds is based upon a lack of uniformity of procedure in that there are forms of procedure other than that prescribed by Code Ann.Ch. 36-13, by which the condemnor might have exercised the right of eminent domain against the condemnee's land. The condemnee is aggrieved particularly because the condemnation of his land was not brought pursuant to the provisions of Code Ann.Ch. 36-6A before a special master, and he argues that the condemnor's selection of one procedure rather than another would operate to deprive him of his property without just and adequate compensation.

'The Court of Appeals has jurisdiction to decide questions of law that involve application, in a general sense, of unquestioned and unambiguous provisions of the constitution to a given state of facts, and that do not involve construction of some constitutional provision directly in question and doubtful either under its own terms or under the decisions of the Supreme Court of the State or of the United States, and that do not involve the constitutionality of any law of the State or of the United States or any treaty.' City of Atlanta v. Donald, 220 Ga. 98, 99, 137 S.E.2d 294.

2. There is no merit in the condemnee's contentions that the proceeding was in violation of the Georgia and United States constitutions as urged. The Supreme Court of Georgia has held that Code Ann.Ch. 36-13 does not contravene either Art. I, Sec. I, Par. II; Art. I, Sec. I, Par. III; or Art. I, Sec. III, Par. I of the Constitution of 1945. State Highway Dept. v. Smith, 219 Ga. 800, 802-809(1), 136 S.E.2d 334. Moreover, there is no violation of the Fourteenth Amendment of the United States Constitution. 'The due process clause does not guarantee to the citizen of a state any particular form or method of state procedure. * * * Nor does the equal protection clause exact uniformity of procedure. The Legislature may classify litigation and adopt one type of procedure for one class and a different type for another.' Dohany v. Rogers, 281 U.S. 362, 369, 50 S.Ct. 299, 302, 74 L.Ed. 904. The circumstances set forth in Code Ann. § 36-1301 and the need for 'a judicial ascertainment of any question' involved in the acquisition of land by eminent domain clearly is a sufficient basis justifying the adoption of the different procedure authorized by Code Ann.Ch. 36-13 in certain cases. 'So long as the procedure used to take the condemnee's property is in accordance with the law he has no ground of complaint because another procedure, also authorized by law, was not used.' State Highway Department v. Respess, 111 Ga.App. 421,--(2), 142 S.E.2d 73, 75.

3. The petition and declaration of taking in the instant case were filed pursuant to an order of the Director of the State Highway Department annexed to the declaration of taking as required by Code Ann. § 36-1303. This order stated the Director's finding 'that the circumstances are such that it is necessary that the right of way and/or rights of way described in annexes to...