Woodside v. City of Atlanta

Almand, Justice,

dissenting. I concur in the dissenting opinion of Presiding Justice Wyatt and only wish to add a few additional reasons for my dissent. The majority opinion states that a decision of the case depends upon the meaning of the word “taking” as contained in par. 1, sec. 3, art. 1 of the Constitution of Georgia (Code, Ann., § 2-301); and that the contention of the condemnor is that it means the actual physical taking of the land, and that that of the condemnee is that it means the taking of any property which an owner has in his land, and that “obiter language can be found in some of the decisions of this court which does support both of them.” But no case from this court (and I have found none) is cited in support of the condemnee’s contention. This court in Hurt v. City of Atlanta, 100 Ga. 274, 280 ( 28 S. E. 65 ), a full-bench decision, defined the word “taking” as used in this constitutional provision as "a physical, tangible appropriation of the property of another.” This ruling has never been questioned or overruled. The court today says that “as the word ‘taken’ is construed in many other jurisdictions, a taking of property for which compensation must be first paid does not require an actual physical taking, but may consist in an interference with the rights of ownership, use and enjoyment, or any other right incident to property.” (Italics supplied.) In support of this construction of the term “taking”, Corpus Juris Secundum and an Ohio case are cited. Stare decisis and a binding precedent of this court must therefore yield to the construction placed upon the word “taking” by many other jurisdictions. In Collins v. Mills, 198 Ga. 18, 22 ( 30 S. E. 2d 866 , 4 A. L. R. 2d 745), this court in a full-bench decision said: “A provision of the Constitution .is to be construed in the sense in which it was understood by the framers and the people at the time of its adoption. Accordingly, the amendment of 1912 means now precisely what it *97 meant at that time.” The provision of the Constitution of 1945 which provides that private property shall not be taken for public purposes without just and adequate compensation being first paid is the same as that contained in the Constitution of 1877 (art. 1, sec. 3, par. 1). Chief Justice Simmons and Justice Little were members of this court at the time the case of Hurt v. City of Atlanta, 100 Ga. 274 , supra, was decided. Both were also members of the Constitutional Convention of 1877 which prepared that Constitution. Certainly they and the other members of the court in 1896 were in a better position to know the meaning of the word “taking” than are we, the present members of the court three generations removed from the scene of the Convention of 1877. If the word “taking” is defined as meaning one thing in 1896 [Hurt v. City of Atlanta), and a different thing in 1958, and a construction of its meaning is to be determined by the age in which we are living, this court can, as constituted ten years from now, give the word its meaning in the age of space, rather than its meaning in the age of atomic energy or in the horse and buggy era.

The majority opinion also overlooks the case of Ga. So. & Fla. R. Co. v. Small, 87 Ga. 355 ( 13 S. E. 515 ), which holds that in a condemnation case, the time of the taking of private property for public use is when the condemnor tenders the amount of damages awarded by the assessors. See also Gate City Terminal Co. v. Thrower, 136 Ga. 456 ( 71 S. E. 903 ).

Mobley, Justice, dissenting. I concur in the dissenting opinions of Presiding Justice Wyatt and Justice Almand.