State Highway Dept. v. Wilson

• Decision Date: 14 October 1958
• Docket Number: 2,No. 37290,Nos. 1,37290,s. 1
• Parties: STATE HIGHWAY DEPARTMENT v. R. A. WILSON et al
• Court: Georgia Court of Appeals

Page 544

106 S.E.2d 544

98 Ga.App. 619

STATE HIGHWAY DEPARTMENT v. R. A. WILSON et al.

No. 37290.

Court of Appeals of Georgia, Division Nos. 1, 2.

Oct. 14, 1958.

Rehearing Denied Nov. 13, 1958.

Syllabus by the Court.

1. A full bench decision of the Supreme Court of this State is binding upon the Court of Appeals until reversed or substantially modified regardless of later decisions by a divided bench. Where there are two conflicting decisions of the Supreme Court, neither of which is unanimous, this court must also follow the older case. But, where such is not the case, a decision of the Supreme Court, although by a divided bench, is binding upon this court, including that part of the decision declaring certain language in an older Supreme Court case to be obiter.

2. (a) Language in previous Supreme Court cases either distinguished by that court or declared to be obiter in the case of Woodside v. City of Atlanta, 214 Ga. 75, 103 S.E.2d 108 cannot be considered by this court in this case since the evaluation of older Supreme Court decisions by the majority in the Woodside case is binding on this court.

(b) The cases of Georgia So. & Fla. R. Co. v. Small, 87 Ga. 355, 13 S.E. 515 and Gate City Terminal Co. v. Thrower, 136 Ga. 456, 71 S.E. 903 do not require a holding contrary to that reached in the Woodside case. The former cases deal with the time of fixing market value on a trial before a superior court jury, while the latter decides for the first time when payment or tender may be required of the condemnor before the proceedings to take may continue under a proper construction of the constitutional provision relating to this subject.

3. The trial court did not err in dismissing the appeal, the condemnor having failed to comply with a condition precedent to such appeal by first paying or tendering into court the value of the property as fixed by the appraisers.

On January 11, 1958, the State Highway Department of Georgia commenced a proceeding in the Superior Court of Tift County to condemn for public purposes certain property of Reid Wilson and others. Assessors were appointed on February 1, a hearing held on February 6, and an award entered and filed in the superior court on the same date, awarding the condemnee $12,140.50 as the value of the property plus consequential damages of $19,591.34 and finding no consequential benefits. On February 14, 1958, the State Highway Department filed its appeal to the jury pursuant to the provisions of Code §§ 36-601 and 36-1110. Judgment for the condemnee was entered by the court on February 24. On February 26, the sum of $31,731.84 was tendered into court for the benefit of the condemnees. On May 5, a motion by the condemnees to take down the tender was made and granted. On May 20, a motion to dismiss the appeal on the ground that at the time of filing of the appeal no tender or payment of the amount in question had been made. A motion to strike the vital paragraphs of this motion was made and overruled, and the court then entered up judgment dismissing the appeal, and these judgments are assigned as error.

Eugene Cook, Atty. Gen., Paul Miller, E. J. Summerour, Asst. Attys. Gen., Ariel V. Conlin, John E. Hogg, Deputy Asst. Attys. Gen., Atlanta, Maxwell A. Hines, Tifton, for plaintiff in error.

Robert R. Forrester, Tifton, for defendants in error.

TOWNSEND, Judge.

1. The questions raised by the motion to strike and the motion to dismiss may be disposed of together, for the fundamental question here is whether it is necessary, as a condition precedent to the appeal (rather than at some later date, or not at all) that the amount of the assessors' award must be paid or tendered to the condemnee, and this question necessarily depends upon the consideration of Supreme Court cases, and especially the latest case, Woodside v. City of Atlanta, 214 Ga. 75, 103 S.E.2d 108. In that case the Supreme Court reversed the judgment of the trial court denying a motion to dismiss the appeal based on the ground that payment or tender of the value of the property sought to be condemned is a condition precedent to the filing of such appeal by the condemnor under a proper construction of article 1, section 3, paragraph 1 of the Constitution of this State (Code § 2-301) as follows: 'In case of necessity, private ways may be granted upon just compensation being first paid by the applicant. Private property shall not be taken, or damaged, for public purposes, without just and adequate compensation being first paid.' Four of the Justices of the Supreme Court in that case having made that decision, and three of the Justices having dissented, this court is asked to follow older full bench decisions of the Supreme Court contended by counsel for the plaintiff in error to be in conflict with the majority opinion in that case.

It is well recognized by this court that it as well as the Supreme Court is bound by the oldest unanimous decisions of the Supreme Court on any question decided unless and until that case is overruled, modified, distinguished or declared obiter as authorized by law. Code § 6-1611. And, if there are two conflicting decisions of the Supreme Court, neither of which is unanimous, this court will follow the older case. Nat. Life & Accident Ins. Co. v. Fischel, 62 Ga.App. 646(4), 9 S.E.2d 192. That such is the law is ably pointed out by Mr. Chief Justice Duckworth in a dissent in Sylvania Electric Products, Inc., v. Electrical Wholesalers, Inc., 198 Ga. 870, 33 S.E.2d 5, which dissent was approved by full bench in the later case of Rivers v. Cole Corp., 209 Ga. 406, 73 S.E.2d 196 and in which it was said [198 Ga. 870, 33 S.E.2d 9]: 'To the extent that the decisions of this court concurred in by all the Justices have defined and specified the essentials of [a rule of law] they are the law, binding alike upon the Court of Appeals and the Supreme Court; and all decisions of the * * * Supreme Court that conflict with such older unanimous decisions of the Supreme Court are unsound, are not the law, and must yield to the older Supreme Court decisions. Consequently, if there are * * * older and controlling decisions of the Supreme Court with which the majority opinion here, as well as the decisions cited therein, are in conflict, then the majority opinion is not the law and is not binding upon anyone not even the Justices who concurred therein.' Since, therefore, the Woodside case is not a full bench decision, and since it is contended that there are other older and controlling authorities which should be followed instead of that case, this court must examine the earlier Supreme Court cases to see whether, in its opinion, they represent the controlling authority on the issue before us, which, briefly, is whether the tender of payment of the assessors' award is, as against a motion to dismiss an appeal to a jury in a condemnation case, a condition precedent to the appeal.

2. (a) One contention of the plaintiff in error is that the decision in the Woodside case is in conflict with the decision in Hurt v. City of Atlanta, 100 Ga. 274, 280, 28 S.E. 65, which, being a full bench decision, cannot be materially modified by a divided bench in a later decision of the Supreme Court. In the Woodside case [214 Ga. 75, 103 S.E.2d 111], the court said of the Hurt case: 'That case, however, did not involve the city's right to take private property for public use without first paying the owner just and adequate compensation * * *. The language from the opinion in this case, as quoted above, is, of course, purely obiter dictum; as to when property is 'taken' within the meaning of our Constitution, which was not involved.' Obiter dictum is not binding upon the Court of Appeals as a precedent. Lacey v. State, 44 Ga.App. 791, 163 S.E. 292; Mobley v. Macon Nat. Bank, 42 Ga.App. 267, 155 S.E. 778, affirmed 174 Ga. 256, 162 S.E. 708, 82 A.L.R. 560. A majority decision of the Supreme Court is binding as a precedent on the Court of Appeals until the decision is overruled or modified by the Supreme Court. Battle v. State, 58 Ga.App. 395, 198 S.E. 719. The Woodside opinion is the first to declare whether the particular language in the Hurt case is obiter, and its decision that it is, although by a divided bench, is binding on this court. The same is true of all the other Supreme Court cases discussed and distinguished in the majority opinion in the Woodside case, and accordingly none of such decisions offers this court any valid reason to decline to follow the Woodside ruling.

(b) But it is also contended that there are at least two older cases not considered or distinguished in the Woodside case which require a contrary determination, and which it is the duty of this court to follow, and which would require a contrary determination of the question: The Georgia So. & Fla. R. Co. v. Small, 87 Ga. 355, 13 S.E. 515, and Gate City Terminal Co. v. Thrower, 136 Ga. 456, 71 S.E. 903. In the former case the railroad company commenced a statutory proceeding to condemn Small's land; Small commenced an action to enjoin the condemnation proceeding and the cases were tried together. Small appealed to the superior court for jury trial from the award of the sheriff's jury, this being the proper procedure under the charter of the railroad by which the condemnation proceeding was begun. The issue on appeal to the Supreme Court was raised by objection to evidence in the superior court trial of the value of the property at the time of that trial, it being contended that value should be set as of the time of the first award. The court in rejecting the contention said: 'This question depends upon what time the taking is complete, so as to authorize the railroad company to take possession of the land * * *. We have carefully scrutinized this record and there is no indication or intimation therein that any tender of the amount assessed was made by the company to Small. There was consequently no taking by the company...