Woodside v. City of Atlanta

Wyatt, Presiding Justice,

dissenting. 1. I can not agree with the opinion of the majority for the reasons hereinafter set out. In the instant case, if this court has jurisdiction, it is solely because the motion to dismiss the appeal either requires the construction of some provision of the Constitution of the State of Georgia or draws into question the constitutionality of some act or provision of some act of the General Assembly of Georgia. Code (Ann.) § 2-3704. The pertinent portions of the motion to dismiss the appeal, in which it is contended that a constitutional question within the jurisdiction of this court is made, reads as follows: “Movants contend and urge that if said Code §§ 36-508; 36-601; 36-602; 36-606; 36-1104; 36-1110; 36-1111; 36-1113; and 36-1115, and each of them be construed to permit to respondent or grant to respondent the right to appeal from the award of the assessors in this case to a jury in the superior court without requiring that the amount of the award either first to be tendered and paid to the condemnees, or paid into the registry of this court, when in fact respondents did file such an appeal, without first tendering or paying the amount of said award to condemnees, or into the registry of this court at the time of said appeal or within the ten days period provided for the making of said appeal, said Code sections, and each of them, are contrary to said provisions of the Constitution of the State of Georgia set forth in paragraphs 34 and 35 above.” It is clear that this paragraph does not require the construction of any provision of the Constitution, nor does the amendment later filed in which it is set out that the con *92 demnees have sustained present damage. See Mayor &c. of Athens v. Gamma Delta Chapter House Corp., 208 Ga. 392 ( 67 S. E. 2d 111 ).

In the portion of the motion above quoted, it is also contended that — if the named Code sections are construed to permit the condemnors to file an appeal from the award of the assessors without first tendering such amount to the condemnees or paying same into- the registry of the court — said Code sections are contrary to stated provisions of the Constitution of the State of Georgia. Is this sufficient to draw into question an act or some provision of an act of the General Assembly of Georgia? We find that it is not. It has been repeatedly held that, in order to draw into question the constitutionality of an act of the General Assembly so- as to give this court jurisdiction, “at least three things must be shown: (1) the statute or the particular part or parts of the statute which the party would challenge must be stated or pointed out with fair precision; (2) the provision of the Constitution which it is claimed has been violated must be clearly designated; and (3) it must be shown wherein the statute, or some designated part of it, violates such constitutional provision.” Richmond Concrete Products Co. v. Ward, 212 Ga. 773, 774 ( 95 S. E. 2d 677 ). Likewise, it has been held that “A criticism that ‘sections 885 to 900 inclusive of the Criminal Code’ of this State are violative of art. 6, sec. 4, par. 7 of the Constitution of Georgia, ‘in that it confers upon the superior court the right to render judgment in cases’ thereunder ‘without the intervention of a jury’, is too general to raise a question as to the constitutionality of any particular section of the Code, it appearing that many of the various sections included in the criticism have no reference to the subject of trial without a jury.” Rooks v. Tindall, 138 Ga. 863 (2) ( 76 S. E. 378 ).

In the instant case, the condemnees contend that, if nine named Code sections are construed in a certain manner, they are violative of two named provisions of the Constitution of Georgia for stated reasons. In accordance with the authorities above cited, this is too general to draw into- question the constitutionality of any one of the provisions named. Also, since it appears that a number of the named Code sections have no reference to the subject matter of an appeal from the award of the *93 assessors in a condemnation case, and are therefore certainly not unconstitutional for any of the reasons named, no question of the constitutionality of all the Code sections as a group is properly presented. Dade County v. State of Georgia, 201 Ga. 241 ( 39 S. E. 2d 473 ); Flynn v. State, 209 Ga. 519 ( 74 S. E. 2d 461 ); Huiet v. Dayan, 194 Ga. 250 ( 21 S. E. 2d 423 ); Abel v. State, 190 Ga. 651 ( 10 S. E. 2d 198 ); Gormley v. Searcy, 179 Ga. 389 ( 175 S. E. 913 ).

It is therefore apparent that no constitutional question such as to give this court jurisdiction in this case is presented, and the case not being one otherwise within the jurisdiction of this court, should be transferred to the Court of Appeals.

While this court does have jurisdiction in cases involving “construction of the Constitution,” we have that jurisdiction only as a court of review. In the instant case, there has been no construction of any provision of the Constitution by the trial court for the very good reason that nowhere in the record is any construction of the Constitution sought or prayed for. The plaintiff in error did seek the construction of certain purely statutory Code sections. The Court of Appeals can construe statutes.

This court has consistently said that a plain and unambiguous provision of the Constitution that needs no construction will not be construed by this court. The majority opinion relies upon Crumb v. State, 205 Ga. 547 ( 54 S. E. 2d 639 ), as a case requiring this court to entertain jurisdiction of the instant case. In •that case, the question of jurisdiction was not raised, discussed, or expressly passed upon. The writer participated in that decision, and, being perfectly frank, states that the question of jurisdiction did not enter his mind. Since, in that case, the question of jurisdiction was not expressly passed upon, the case is nothing more than a physical precedent; and since there are numerous full-bench decisions older than the Crumb case in which the question of jurisdiction is expressly passed upon, holding that under the circumstances of the Crumb case, this court does not have jurisdiction, this case is not binding authority. See Dade County v. State of Georgia, 201 Ga. 241 , supra, and the numerous authorities cited therein.

The majority opinion, citing authorities in which it is con *94 tended that the language is obiter, to the effect that the constitutional provision under consideration means an actual, physical taking of the property, then says: “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.” There is not one word in any of the authorities cited that to my mind makes this provision of our Constitution doubtful. The authorities all say that taking means actual, physical taking. Even if this language is obiter — and I do not think that it is — that fact would not make the meaning of the term doubtful. I do not think that the word “taken” as used in the constitutional provision under consideration is doubtful or needs any construction. Of course, this court will not entertain a case for the purpose of construing a provision of the Constitution that is not doubtful or needs no construction. I simply can not agree that a person in full and complete possession of his property, when the condemnor has done nothing except follow the proceeding provided for by law to ascertain the value of the property, has had his property taken from him.

2. Even if this court had jurisdiction of this case, I can not agree with the majority opinion on the construction of the constitutional provision in question. Under the previous rulings of this court, it is my opinion that there has been no “taking” of the property in the instant case. The majority opinion — after pointing out that “condemnor insists that it means only an actual physical taking in toto of the owner’s land for a public use,” and that "condemnees contend that it not only means an actual physical taking of the owner’s land, but also means the taking of any substantial right of property which an owner has in his land” — then states: “We must confess that obiter language can be found in some of the decisions of this court which does support both of them.” The decisions of this court are then referred to in which the language used holds that, under the facts of the instant case, there has been no taking.

It is contended that the cases on this question are obiter dicta. *95 It is interesting to note that no decision of this court is referred to in which there is any language supporting the construction placed upon the word “taken” by the majority opinion' — obiter or otherwise. This court in Hurt v. City of Atlanta, 100 Ga. 274, 280, said: “The 'taking’ referred to in the constitutional paragraph under consideration means a physical, tangible appropriation of the property of another.” In that case the identical constitutional provision here under consideration was construed. There, as here, there has been no actual, physical taking of the property. There, as here, is was simply contended that there had been a substantial interference with the right of the property owner to enjoy his property. There, the court held that there had been no “taking” of the property, and here, in my opinion, we should hold the same thing. I do not see how it can justifiably be contended that this language is obiter. I do not consider this language to be obiter in any sense of the word.

What has been said about Hurt v. City of Atlanta, 100 Ga. 274 , supra, may be said about other decisions referred to in the majority opinion as being obiter. I want to emphasize that, in the instant case, the property owner is in complete possession and use of his property. The condemnor has not taken possession of any of the property and has not in any way interfered with possession by the owner. This court in Georgia Ry. &c. Co. v. Mooney, 147 Ga. 212 (1) ( 93 S. E. 206 ), said: “Where proceedings are instituted by a power company against a landowner to condemn property under the Civil Code, § 5206 et seq., and an appeal is taken from the award of the assessors, the company, not having taken possession of the land, may dismiss the condemnation proceedings pending the appeal.” If the condemnor can “dismiss the condemnation proceedings pending the appeal,” certain it is that there has been no taking of the property.

I fail to see what has been accomplished by the majority opinion. Regardless of any construction placed upon the constitutional provision in question, the General Assembly has by statute provided a method for appeal from the award of assessors in condemnation proceedings as set out in the Code sections previously cited in this dissenting opinion. No requirement of payment of the award as a condition precedent to the filing of an appeal is there provided for. These Code sections are, of *96 course, constitutional until and unless they have been held otherwise by this court. No proper attack is made on these Code sections, and the majority opinion so holds. It seems to me that the effect of the majority opinion is to add a new Code section to our statute law, and this court has no legislative authority. The condemnor in this case has complied with all statutory requirements concerning this appeal; and since this has been done, I do not believe that the appeal should be dismissed.