Alexander v. City Council

Atkinson, J. 1. The record discloses that the material taken-from the land was intended to be used in making repairs to the Augusta canal. It was urged that the power of eminent domain conferred by the act of 1845, as amended by the act of 1849, properly construed, did not extend to the right to take material for repair work, but was restricted to taking it for work of original construction. In making this contention counsel referred to certain language-contained in section 6 of the act of 1845, which declared that the-power of eminent domain might be exercised for the purpose of obtaining certain material necessary to be used in the further construction, future extension, deepening, or widening of said canal, or its raceways, wasteways, or other improvements or works connected therewith; and asserted that the repairs to the banks of the — 853 — canal more than 50 years after the construction thereof were not •contemplated; This construction of the act is too narrow. One of the declared objects intended to be accomplished by the construction of the canal was the better securing of an abundant supply of water for the. city. The matter of creating and maintaining the canal was a thing to be accomplished by artificial means. The nature of the artificial waterway was not such as that when once constructed it would remain so permanently. On the contrary, it was such that natural agencies would tend to its destruction, and the object to be accomplished Avould fail unless the work of maintenance were kept in progress. As to such an enterprise, the work of construction would never be at an end. Considered in the light of the subject-matter which the legislature had under consideration, the words "further construction/’ as contained in the act of 1845, should be construed as referring to repair work as well as work of original construction. 2. It was contended that in so far as the act of 1845, set forth in the statement of facts, incorporating the Augusta Canal Company, as amended by the act of 1849, authorized the exercise of the power of eminent domain,- it was repealed and superseded by art. 1, see. 3, par. 1, of the constitution of 1877 (Civil Code, § 5729), which declared that “private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid/’ also that it was superseded by the act approved December 18, 1894 (Acts 1894, p. 95), to provide a uniform method of exorcising the right of condemning or taking private property,” as now contained in the Civil Code, §§ 4657 to 4688, inclusive. The act of 1845, above mentioned, properly construed, authorized the taking of property before actual payment of damages to the landowner. . The constitution of 1877, supra, forbade it. By art. 12, sec. 1, par. 3 and 4, of the constitution of 1877 (Civil Code, §§ 5934, 5935), existing laws not in conflict with the constitution of the State, or with the supreme law of the land, were preserved, but there was no provision for saving existing laws which were repugnant to the constitution. The legislation provided in the act of 1845, that property might be taken before actual payment of damages to the landowner, and the provision in the constitution of 1877, which declared that private property should not be taken without compensation being first paid, were inconsistent, and the — 854 — latter repealed so much of the former as authorized the taking.of property without first making payment of the damages incurred* The act of 1894, supra, was a general law, and provided different, procedure from that prescribed by the act of 1845 for taking property under the exercise of the power of eminent domain. This general law-did not specifically name the act of 1845, but it was so comprehensive as to make it apparent that the general law was intended, to repeal all existing legislation, local as well as general, in regard to the method of exercising the power of eminent domain. Where such intention exists, a general law will repeal a local law, though it is not specially named. Crovalt v. Mason, 101 Ga. 246, 252 (28 S. E. 891). The general law did not purport to confer upon any corporation the right to exercise the power of eminent domain, but only to provide in what manner corporations having the right to exercise the power might exercise it. Georgia Railroad Co. v. Union Point, 119 Ga. 809 (47 S. E. 183); Georgia Railroad Co. V. Decatur, 129 Ga. 502 (59 S. E. 217). In so far as the act of 1845 provided a different method of exercising the right of eminent domain from that prescribed in the act of 1894, it was superseded by the latter act. Hence, by giving effect to the constitution of 1877, in the manner above indicated, and to the act of 1894, the act of 1845, as amended by the act of 1849, was superseded -in so far as it authorized the taking of private property under the power of eminent domain without first paying the damages, and in so far as it authorized the taking of such property under condemnation proceedings different from those specified in the act of 1894. In support of the contrary view, it was argued that under the doctrine of the Dartmouth College case, as recognized and applied in the case of Gardner v. Georgia Railroad Co., 117 Ga. 522 (43 S. E. 863), the city acquired, under the act of 1845, rights which could not be taken away. Art 1, sec. 3, par. 1, of the constitution of 1877 (Civil Code, § 5729), requiring the payment of damages before the taking of property under the power of eminent domain, and the act of 1894, prescribing the procedure under which private property may be taken for public purposes, should not be so applied as to work an impairment of any contract or destroy any vested right acquired under the act of 1845. The constitution expressly prohibits such application. Art. 4, sec. 1, par. 6 (Civil Code, § 5802) ; art. 12, sec. 1, par. 5 (Civil Code, § 5936). But neither the constitution — 855 — nor the act referred to had such effect. The former allowed the power of eminent domain to be exercised, but only provided that damages should be paid before the property could be taken. The latter merely provided a different method of taking property under the power of eminent domain by persons having the right to exercise it. These changes in the'law were remedial in character, and did not impair any contract or impair any vested right under the doctrine of the Dartmouth College ease. The case differs from Gardner v. Georgia Railroad, Co., supra. That case involved the act approved December 14, 1835, amending the charter of a railroad corporation, wherein it was expressly declared that under the power of eminent domain the decision rendered in the condemnation proceedings provided for “shall vest in the company the fee simple of the land in question.” Georgia Laws 1834-5, p. 217, sec. 15. In the ease cited it was said in the opinion that under the act of 1894, providing a method of taking property, etc., only an easement in the property could be acquired, and that there was a substantial difference between,such an estate and the fee simple which could be acquired under the act of 1835, supra; and thereupon it was declared that in so far as the act of 1894 was inconsistent with the exercise of the charter rights specified in the act of 1835, it had no application to the defendant company. The act of 1894-does not declare that the only interest in the property appropriated under its provisions which would pass to the person exercising the power of eminent domain would be an easement, but its language relative to that matter is, “such an interest in the property taken as may be necessary to enable the corporation or person taking to exercise their franchise or conduct their business; and whenever the person or corporation shall cease using the property taken for conducting their business, the said property shall revert to the person from whom taken, his heirs or assigns.” Under this language any interest might be taken which would be necessary to a proper exercise of the franchise or conducting of the business. The necessities of the franchise might require an absolute conversion of the property, such as earth taken for the construction of railroad beds, etc. The act of 1845, as amended by the act of 1849, being the act involved in the present ease, did not declare in express language that the judgment in the condemnation proceedings provided for therein should vest the fee to the property — 856 — in. the person exercising the power of .eminent domain. It merely declared that the trial should he final, “vesting in the company the said right of way.” It did no more than authorize the taking of property for specified purposes, which, in effect, limited the use of property to the purposes specified, so that the person talcing acquired such interest therein, but no greater or less interest, than was necessary for the enjoyment of the franchise. This was in keeping with the general rule that in condemnation proceedings corporations acquire only such interest in the property taken as may be necessary for the enjoyment of the franchise. Whatever might have been the difference in the character of the estate acquired when the property was taken under the act of 1835 from that when acquired under the general law of 1894, the sajne difference did not exist where the property was taken under the provisions of the charter of the Augusta Canal Company, as granted by the act of 1845 and amended by the act of 1849. In the latter case the interest acquired would be substantially the same as that which could be acquired if the property were taken under the general law of 1894. It thus appears that the constitution did not deprive the corporation of its right to exercise the power of eminent domain, and that the act of 1894 did not restrict the character of the estate which, under the provisions of the act of 1845, the corporation could have acquired in property taken under the power of eminent domain. The substantial rights were unaffected. The provisions of the former act relative to proceedings by which property might he taken were not subject-matter of substantial right in the party undertaking to condemn. 3. In several grounds of the hill of exceptions complaint was made that the act of 1845, as amended by the act of 1849, was unconstitutional; hut the record does not disclose that these complaints were made in the pleadings or otherwise, so as to show that the question as to the constitutionality of the act was made before the trial court and decided. Other assignments of error relate to a construction of provisions of the act of 1845 in regard to the method of procedure in taking private property under the exercise of the power of eminent domain, and the application of such provisions of the act of 1845 to the present case. Under the statement above made, no constitutional question is presented for decision; and as the act of 1845 has been superseded, in so far as it refers to — 857 — the method of procedure in the matter of taking private property under the power of eminent domain, it is unnecessary to deal with the questions relative to such-procedure. Judgment reversed. All the Justices concur.