Opinion
23867.
ARGUED JANUARY 9, 1967.
DECIDED JANUARY 19, 1967. REHEARING DENIED JANUARY 25, 1967.
Certiorari to the Court of Appeals of Georgia — 114 Ga. App. 501 ( 151 S.E.2d 806).
Robert E. Knox, Warren D. Evans, for appellants.
Arthur K. Bolton, Attorney General, Richard L. Chambers, E. J. Summerour, Assistant Attorneys General, D. Field Yow, L. Clifford Adams, Jr., Deputy Assistant Attorneys General, Lon L. Fleming, for appellee.
1. The motion to dismiss because Rule 52 of this court was allegedly not complied with in the consideration of the grant of the writ of certiorari is without merit and is denied.
2. The charge that in ascertaining what would be just and adequate compensation the jury could consider evidence that knowledge of the impending taking had enhanced the value of the property taken accorded with Hard v. Housing Authority of the City of Atlanta, 219 Ga. 74 ( 132 S.E.2d 25), and was sound. It was error for the Court of Appeals to reverse because of this charge solely in virtue of the 1966 Act (Ga. L. 1966, p. 320) which purports to render such evidence inadmissible.
ARGUED JANUARY 9, 1967 — DECIDED JANUARY 19, 1967 — REHEARING DENIED JANUARY 25, 1967.
A certiorari writ was granted in this case of condemnation to review the Court of Appeals in its decision reported in State Hwy. Dept. v. Calhoun, 114 Ga. App. 501 ( 151 S.E.2d 806), where it was held that the lower court erred in refusing to grant a motion for new trial complaining that the court erred in charging the jury that it should look to all circumstances affecting the value of land taken at the time of taking including enhancement resulting from knowledge of the impending taking. The applicant alleges error in that the trial court correctly charged the law and the Court of Appeals should not have reversed because (1) the appellant failed to raise that question in the lower court in conformity with Code Ann. § 70-207 (a) (Ga. L. 1965, pp. 18, 31, as amended); (2) the 1966 Act defining just and adequate compensation (Ga. L. 1966, p. 320), which allegedly changed the method of determining value of property taken, which specifically denies consideration of enhancement resulting from knowledge of the impending taking, deprived the appellee of vested rights and therefore should not have been applied since it was adopted as law after the trial of the case; (3) its application by the Court of Appeals was in violation of constitutional guarantees specifically provided by the Georgia Constitution; and (4) the 1966 Act, supra, is otherwise unconstitutional. Because of the apparent confusing state of the law as to what rule of the law the Court of Appeals should have applied, this court granted certiorari.
1. It is stipulated that the lands involved were taken on May 4, 1965. The record shows that the trial ended December 1, 1965, and the 1966 Act defining just and adequate compensation (Ga. L. 1966, p. 320) was approved March 10, 1966. This court ruled in Hard v. Housing Authority of the City of Atlanta, 219 Ga. 74, supra, that, in proving value, evidence showing that an enhancement in value resulted from knowledge of the impending taking was admissible. The 1966 Act provides in effect that such evidence is not admissible. The Court of Appeals reasoned that such cases as City of Valdosta v. Singleton, 197 Ga. 194 ( 28 S.E.2d 759); Fulton County v. Spratlin, 210 Ga. 447 ( 80 S.E.2d 780); and Fulton Bag Cotton Mills v. Williams, 212 Ga. 783 ( 95 S.E.2d 848), required them to apply the law as it existed at the time of their decision, that is, the 1966 Act, rather than the law as it existed at the trial as set out in the Hard case; and upon this reasoning reversed. The motion for rehearing challenged this ruling, pointing out that in each of the decisions relied upon it was expressly recognized that such rule should not apply to destroy vested rights. This same position is taken in the application for certiorari, and we granted the writ because of this assignment. Consequently, the motion to dismiss, based upon Rule 52, which requires that contentions made in the application must have been urged in a motion for rehearing, is manifestly without merit. The 1960 amendment of Art. I, Sec. III, Par. I, of the Constitution of 1945 ( Code Ann. § 2-301; Const. of 1945) removing the requirement of "being first paid" as to property taken for public roads and streets, did not alter the demand that "just and adequate compensation" be paid as provided in the Constitution. The issue in this case is not when payment must be made but what evidence is admissible to prove value at the time of taking. The motion to dismiss the application as having been improvidently granted is without merit.
2. The decisive question here is: Does the Constitution, Art. I, Sec. III, Par. I, supra, vest in every landowner in Georgia a right to employ evidence, held by this court in the Hard case, supra, to be admissible in proof of "just and adequate compensation" for same when taken for public use? It commands that he be paid just and adequate compensation. What is just and adequate is a justiciable question, and under the constitutional clause ( Code Ann. § 2-123; Const. of 1945) requiring separation of powers, only the judiciary can lawfully determine that question. Can it be seriously doubted that the bill of rights vests interests in the individual? None of the three separate departments of the state — legislative, executive or judicial, has the power to reduce or abolish the constitutional right of the owner to receive just and adequate compensation for his private property taken for a public use. Only the judiciary can adjudicate the amount of such compensation and what evidence is relevant and admissible for that purpose. This court performed its duty in that respect in the Hard case. The purported exercise of judicial powers by the 1966 Act, purportedly overruling a judgment of this court, is void on its face; and the vested right of the owners can not be destroyed by applying the 1966 Act to a case that has already been tried. We are aware of the well-known rule that until time for review has passed a party to a judgment has no vested interest in it. See Franklin v. Harper, 205 Ga. 779 ( 55 S.E.2d 221). The right here threatened is that conferred by the Constitution, and none of the decisions in the cases cited above and by the Court of Appeals are authority for impairing that right. On the contrary each of those decisions plainly says the rule there applied was applicable only when no vested rights would be defeated by it.
It is beyond the power of the General Assembly to specify what evidence can or can not be introduced to prove just and adequate compensation. If they have such power they could exclude all evidence and thus destroy the Constitution and private property also. If they can by the 1966 Act exclude evidence held judicially to be relevant and admissible as was done in the Hard case, they can render the judiciary impotent. See McCutcheon v. Smith, 199 Ga. 685 ( 35 S.E.2d 144); North-side Manor, Inc. v. Vann, 219 Ga. 298 ( 133 S.E.2d 34). From what has been said it must follow that, even if the 1966 Act is valid, it can not be applied on this appeal.
It is firmly established by the decisions of this court that challenges to the constitutionality of statutes must be made at the first opportunity, and must have been ruled upon by a lower court before this court will rule upon them. But the factual situation in this case raises a serious question as to whether, in the light of the provisions of the Constitution ( Code Ann. § 2-402; Const. of 1945) that legislative acts which violate the Constitution are void, and it is the duty of the judiciary to so declare them, this court can avoid that duty because of the above rules, which it was impossible to follow here. The trial was finished on December 1, 1965, and the 1966 Act was approved March 10, 1966. The appeal was by the Constitution required to be made to the Court of Appeals which has no jurisdiction to decide constitutional questions. The Act first entered the case in the Court of Appeals, being injected into the case by that court. Code § 3-105. Could the Act, clearly void on its face, be employed to the injury of a party because he had not obtained a ruling in the trial court which was impossible when he here urges its unconstitutionality at his first opportunity in a court with jurisdiction to decide it? In the circumstances should landowners and trial courts be left in the dark as to whether or not the 1966 Act is void? Here is demonstrated the everlasting truth that there are exceptions to all rules. All cases factually identical with this one will be unjustly decided if this court applies the above rules. But by making such cases exceptions to the general rule and deciding them, justice will be done, and no one will be denied justice. We therefore hold that for the reason that the 1966 Act is an attempt to invade the exclusive jurisdiction of the judicial department, it offends the constitutional separation of powers and is therefore void.
Judgment reversed. All the Justices concur, except Cook, J., disqualified.