Woodside v. City of Atlanta, 19906

Decision Date07 March 1958
Docket NumberNo. 19906,19906
Citation214 Ga. 75,103 S.E.2d 108
PartiesWOODSIDE et al. v. CITY OF ATLANTA et al.
CourtGeorgia Supreme Court

Syllabus by the Court

1. The Supreme Court has jurisdiction where some provision of the Constitution of this State is directly in question and when the meaning of such provision is either doubtful under its own terms or has been rendered so by the decisions of this court. Since the instant case is of that character, this court has jurisdiction of it.

2. The motion to dismiss the writ of error is without merit.

3. For the reason stated in the corresponding division of the opinion, tender to the condemess of the assessors' award of compensation for the property sought to be condemned, or payment of it into the registry of the court on their refusal to accept it, was a condition precedent to the condemnor's right to file and prosecute an appeal to a jury in the Superior Court of Fulton County.

Houston White, Atlanta, for plaintiff in error.

Mitchell, Clarke & Anderson, Atlanta, Ben F. Johnson, Deputy Asst. Atty. Gen., for defendant in error.

J. C. Savage, J. M. B. Bloodworth, Newell Edenfield, Henry L. Bowden, Robert S. Wiggins, Ferrin Mathews, Martin McFarland, Atlanta, for party at interest, not party to record.

CANDLER, Justice.

Pursuant to the provisions of Chapter 36-11 of the Code of 1933, as amended by an act which the legislature passed in 1938 (Ga.L.1937-38, Ex.Sess., p. 251), the City of Atlanta filed a proceeding in rem to condemn certain realty, alleging that acquisition of it was necessary for the construction of the North-South Expressway from Baker Street to Memorial Drive. Among those named as defendants were John J. Woodside, Jr., John J. Woodside Storage Company, Inc., and several other named persons who are described in the petition as lien-claimants, to a portion of the proceeds. Assessors were duly selected, and an award was made after the parties had been fully heard. The award as thus made was timely filed with and recorded by the Clerk of the Superior Court of Fulton County. The condemnor, being dissatisfied with the amount of the award and within the time allowed therefor, filed its appeal to a jury in the proper court of Fulton County. Thereafter, John J. Woodside, Jr., and John J. Woodside Storage Co., Inc., filed a motion to dismiss the appeal on the ground that the amount of the assessors' award had not been tendered to them or paid into the registry of the court for their benefit prior to or at the time of filing the appeal, and that such tender or such payment was a condition precedent to the condemnor's right to enter an appeal to a jury. The motion as amended alleges at great length the injury, damage, inconvenience and loss of substantial property rights which the movants have sustained in consequence of the pending condemnation proceeding against their property, but the amended motion alleges that the condemnor has not taken actual physical possession of the property involved. The amended motion to dismiss the appeal was stricken and the exception is to that judgment.

1. While in banc and during our consideration of the instant case, a question concerning this court's jurisdiction arose, and that is a question which we must always determine, with or without motion of a party. Brockett v. Maxwell, 200 Ga. 213, 36 S.E.2d 638. And since the instant case must be transferred to the Court of Appeals for decision if this court does not have jurisdiction of it, we will deal with and dispose of that question first. By article 6, section 2, paragraph 4 of the Constitution of 1945, this court has jurisdiction 'in all cases that involve the construction of the Constitution of the State of Georgia or of the United States.' Code, § 2-3704. The words 'construction of the Constitution,' etc., as thus employed, contemplate construction where the meaning of some provision of the Constitution is directly in question and doubtful either under its own terms or under the decisions of this court or the decisions of the Supreme Court of the United States. Gulf Paving Co. v. City of Atlanta, 149 Ga. 114, 99 S.E. 374; Thompson v. State, 199 Ga. 250, 33 S.E.2d 903, and citations. In the instant case, the motion to dismiss the condemnor's appeal to a jury in the superior court was based squarely on the proposition that payment of the assessors' award of compensation for the property involved was a condition precedent to the condemnor's right to file and prosecute its appeal. To decide that question which is directly presented by the writ of error, we must necessarily construe and from such construction determine the meaning of article 1, section 3, paragraph 1 of the Constitution of this State, which declares that private property shall not be taken or damaged, for public purposes, until just and adequate compensation for it is first paid to the owner. Does this provision mean only that payment of just and adequate compensation must precede an actual physical taking in toto of the owner's property for a public use, or does it also mean that payment of just and adequate compensation must precede the taking of some substantial right of property which an owner has in his land? So far as we have been able to find, this court has not had for decision a case where that exact question was directly presented, but several decisions rendered by this court do contain language which strongly indicate that our constitutional guarantee of payment before private property can be 'taken' for a public use means and is limited to an actual physical taking in toto of the owner's land. Among such cases it Hurt v. City of Atlanta, 100 Ga. 274, 28 S.E. 65, 67, where it was said: 'The 'taking' referred to in the constitutional paragraph under consideration means a physical, tangible appropriation of the property of another.' That case, however, did not involve the city's right to take private property for a public use without first paying the owner just and adequate compensation for it; it was an action brought by Mrs. Hurt n 1893 against the City of Atlanta to recover damages allegedly sustained by her in consequence of acts which diminished the value of certain realty owned by her, consisting of a lot fronting on Forsyth Street and a building thereon. The nature of her case will be readily apprehended from the following condensed statement of the facts. The city in 1892 had, under express legislative authority, caused to be constructed longitudinally in Forsyth Street a bridge which spanned a number of railway tracks. The width of the bridge coincided with that of the street and the adjacent sidewalks, and it therefor occupied all of the public thoroughfare upon which Mrs. Hurt's property abutted; but it did not encroach upon her land, and no part of her land or building was actually taken from her. It appeared from the evidence that the erection of the bridge rendered ingress to and egress from her building less convenient than formerly and consequently diminished its rental value; but it also appeared that, independently of all other causes, the market value of the property as a whole was considerably enhanced by and because of the erection of the bridge, and that by making alterations in the building so as to properly adjust it to the bridge, it would, even after allowing for the cost of the needed changes, and taking into account an increase in the value of the land, pay in rents a higher percent on her investment than before. The case resulted in a verdict for the defendant, and this court affirmed a judgment denying her a new trial. 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. Austin v. Augusta Terminal Ry. Co., 108 Ga. 671, 34 S.E. 852, 47 L.R.A. 755, is another case which contains language indicating that our constitutional guarantee of payment before private property can be 'taken' for a public use means and is limited to an actual physical taking of the owner's property; but that case, like the Hurt case, did not involve the question of taking property through an exercise of the right of eminent domain, but it was also an ordinary suit for damages growing out of acts which allegedly diminished the value of the plaintiff's realty; and as pointed out in the Hurt case, supra, there is a broad distinction between cases of that character and those where private property is being taken from the owner for a public use. See, in this connection, Moore v. City of Atlanta, 70 Ga. 611, 612. By those two decisions, and by others which could be cited where a similar obiter dictum was used by this court, we think that the meaning of the aforementioned provision of our Constitution, if not already doubtful under its own terms, has been rendered doubtful thereby, and that jurisdiction of the present case should be entertained by this court for the purpose of determining what our constitutional provision requiring payment of just and adequate compensation to the owner before private property can be taken for a public use actually means. Crumb v. State, 205 Ga. 547, 54 S.E.2d 639, is a case where this court entertained jurisdiction for the purpose of construing a provision of the Federal Constitution. There the accused was convicted of a misdemeanor, and this court, with all of the Justices concurring, entertained jurisdiction of his case when the only basis for such jurisdiction was a proper construction of the Fourteenth Amendment to the Constitution of the United States. It was Crumb's contention that the clause of the Constitution just referred to did not allow a systematic exclusion of men from jury service because of their race or color. Its analogy to the present case is so complete that no reasonable argument can be offered why a constitutional question sufficient to give us jurisdiction was there...

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