Townsend, Judge.
The questions raised by the motion to strike and the motion to dismiss may be disposed of together, for the fundamental question here is whether it is necessary, as a condition precedent to the appeal (rather than at some later date, or not at all) that the amount of the assessors’ award must be paid or tendered to the condemnee, and this question necessarily depends upon the consideration of Supreme Court cases, and especially the latest case, Woodside v. City of Atlanta, 214 Ga. 75 (103 S. E. 2d 108). In that case the Supreme Court reversed the judgment of the trial court denying a motion to dismiss the appeal based on the ground- that payment or tender .of the value of'the property sought to be condemned is a condition precedent to the filing of such appeal by the condemnor under a proper construction of article 1, section 3, paragraph 1 of the Constitution of this State (Code, Ann., § 2-301) as follows: “In case of necessity, private ways may ,be granted upon just -compensation being first paid by the applicant. Private property .shall not be taken, or damaged, for public purposes, [621]*621without just and adequate compensation being first paid.” Four of the Justices of the Supreme Court in that case having made that decision, and three of the Justices having dissented, this court is asked to follow older full-bench decisions of the Supreme Court contended by counsel for the plaintiff in error to be in conflict with the majority opinion in that case.
It is well recognized by this court that it as well as the Supreme Court is bound by the oldest unanimous decisions of the Supreme Court on any question decided unless and until that case is overruled, modified, distinguished or declared obiter as authorized by law. Code § 6-1611. And, if there are two conflicting decisions of the Supreme Court, neither of which is unanimous, this court will follow the older case. Nat. Life &c. Ins. Co. v. Fischel, 62 Ga. App. 645 (4) (9 S. E. 2d 192). That such is the law is ably pointed out by Mr. Chief Justice Duck-worth in a dissent in Sylvania Electric Products v. Electrical Wholesalers, 198 Ga. 870 (33 S. E. 2d 5), which dissent was approved by full bench in the later case of Rivers v. Cole Corp., 209 Ga. 406 (73 S. E. 2d 196), and in which it was said (at p. 877): “To the extent that the decisions of this court concurred in by all the Justices have defined and specified the essentials of . . . [a rule of law] they are the law, binding alike upon the Court of Appeals and the Supreme Court; and all decisions of the Court of Appeals, together with any later decisions of the Supreme Court that conflict with such older unanimous decisions of the Supreme Court, are unsound, are not the law, and must yield to the older Supreme Court decisions. Consequently, if there are . . . older and controlling decisions of the Supreme Court with which the majority opinion here, as well as the decisions cited therein, are in conflict, then the majority opinion is not the law and is not binding upon anyone, not even the Justices who concurred therein.” Since, therefore, the Woodside case is not a full-bench decision, and since it is contended that there are other older and controlling authorities which should be followed instead of that case, this court must examine the earlier Supreme Court cases to see whether, in, its opinion, they represent the controlling authority on the issue before us, which, briefly, is .whether .the tender of-,payment of [622]*622the assessors’ award is, as against a motion to dismiss an appeal to a jury in a condemnation case, a condition precedent to the appeal.
One contention of the plaintiff in error is that the decision in the Woodside case is in conflict with the decision in Hurt v. City of Atlanta, 100 Ga. 274, 280 (28 S. E. 65) which, being a full-bench decision, cannot be materially modified by a divided bench in a later decision of the Supreme Court. In the Woodside case (at p. 77), the court said of the Hurt case: “That case, however, did not involve the city’s right to take private property for public use without first paying the owner just and adequate compensation . . . 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.” Obiter dictum is not binding upon the Court of Appeals as a precedent. Lacey v. State, 44 Ga. App. 791 (163 S. E. 292); Mobley v. Macon Nat. Bank, 42 Ga. App. 267 (155 S. E. 778), affirmed, 174 Ga. 256 (162 S. E. 708, 82 A.L.R. 560). A majority decision of the Supreme Court is binding as a precedent on the Court of Appeals until the decision is overruled or modified by the Supreme Court. Battle v. State, 58 Ga. App. 395 (198 S. E. 719). The Woodside opinion is the first to declare whether the particular language in the Hurt case is obiter, and its decision that it is, although by a divided bench, is binding on this court. The same is true of all the other Supreme Court cases discussed and distinguished in the majority opinion in the Woodside case, and accordingly none of such decisions offers this court any valid reason to decline to follow the Woodside ruling.
But it is also contended that there are at least two older cases not considered or distinguished in, the Woodside case which require a contrary determination, and which it is the duty of this court to follow, and which would require a contrary determination of the question: Georgia So. & Fla. R. Co. v. Small, 87 Ga. 355 (13 S. E. 515), and Gate City Terminal Co. v. Thrower, 136 Ga. 456 (71 S. E. 903). In the former case the railroad company commenced a statutory proceeding to- condemn Small’s land; Small commenced an action to enjoin the con[623]*623demnation proceeding and the cases were tried together. Small appealed to the superior court for jury trial from the award of the sheriff’s jury, this being the proper ” procedure under the charter of the railroad by which the condemnation proceeding was begun. The issue on appeal to the Supreme Court was raised by objection to evidence in the superior court trial of the value of the property at the time of that trial, it being contended that value should be set as of the time of the first award. The court in rejecting the contention said (at p. 357): “This question depends upon what time the taking is complete so as to authorize the railroad company to take possession of the land . . . We have carefully scrutinized this record, and there is no indication or intimation therein that any tender of the amount assessed was made by the company to Small. There was consequently no taking by the company for public use, and it was no error on the trial of the appeal to admit evidence of the value of the, property at the time of the trial.” This case was decided by two judges, but it was approved by a full bench in the Thrower case and will accordingly be considered to be as binding on this court as if rendered in the first instance by a full bench.
What was the Small case deciding? It clearly states the limits of its own decision as follows: first, an evidentiary question was raised; second, the decision rested upon when market value
Free access — add to your briefcase to read the full text and ask questions with AI
Townsend, Judge.
The questions raised by the motion to strike and the motion to dismiss may be disposed of together, for the fundamental question here is whether it is necessary, as a condition precedent to the appeal (rather than at some later date, or not at all) that the amount of the assessors’ award must be paid or tendered to the condemnee, and this question necessarily depends upon the consideration of Supreme Court cases, and especially the latest case, Woodside v. City of Atlanta, 214 Ga. 75 (103 S. E. 2d 108). In that case the Supreme Court reversed the judgment of the trial court denying a motion to dismiss the appeal based on the ground- that payment or tender .of the value of'the property sought to be condemned is a condition precedent to the filing of such appeal by the condemnor under a proper construction of article 1, section 3, paragraph 1 of the Constitution of this State (Code, Ann., § 2-301) as follows: “In case of necessity, private ways may ,be granted upon just -compensation being first paid by the applicant. Private property .shall not be taken, or damaged, for public purposes, [621]*621without just and adequate compensation being first paid.” Four of the Justices of the Supreme Court in that case having made that decision, and three of the Justices having dissented, this court is asked to follow older full-bench decisions of the Supreme Court contended by counsel for the plaintiff in error to be in conflict with the majority opinion in that case.
It is well recognized by this court that it as well as the Supreme Court is bound by the oldest unanimous decisions of the Supreme Court on any question decided unless and until that case is overruled, modified, distinguished or declared obiter as authorized by law. Code § 6-1611. And, if there are two conflicting decisions of the Supreme Court, neither of which is unanimous, this court will follow the older case. Nat. Life &c. Ins. Co. v. Fischel, 62 Ga. App. 645 (4) (9 S. E. 2d 192). That such is the law is ably pointed out by Mr. Chief Justice Duck-worth in a dissent in Sylvania Electric Products v. Electrical Wholesalers, 198 Ga. 870 (33 S. E. 2d 5), which dissent was approved by full bench in the later case of Rivers v. Cole Corp., 209 Ga. 406 (73 S. E. 2d 196), and in which it was said (at p. 877): “To the extent that the decisions of this court concurred in by all the Justices have defined and specified the essentials of . . . [a rule of law] they are the law, binding alike upon the Court of Appeals and the Supreme Court; and all decisions of the Court of Appeals, together with any later decisions of the Supreme Court that conflict with such older unanimous decisions of the Supreme Court, are unsound, are not the law, and must yield to the older Supreme Court decisions. Consequently, if there are . . . older and controlling decisions of the Supreme Court with which the majority opinion here, as well as the decisions cited therein, are in conflict, then the majority opinion is not the law and is not binding upon anyone, not even the Justices who concurred therein.” Since, therefore, the Woodside case is not a full-bench decision, and since it is contended that there are other older and controlling authorities which should be followed instead of that case, this court must examine the earlier Supreme Court cases to see whether, in, its opinion, they represent the controlling authority on the issue before us, which, briefly, is .whether .the tender of-,payment of [622]*622the assessors’ award is, as against a motion to dismiss an appeal to a jury in a condemnation case, a condition precedent to the appeal.
One contention of the plaintiff in error is that the decision in the Woodside case is in conflict with the decision in Hurt v. City of Atlanta, 100 Ga. 274, 280 (28 S. E. 65) which, being a full-bench decision, cannot be materially modified by a divided bench in a later decision of the Supreme Court. In the Woodside case (at p. 77), the court said of the Hurt case: “That case, however, did not involve the city’s right to take private property for public use without first paying the owner just and adequate compensation . . . 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.” Obiter dictum is not binding upon the Court of Appeals as a precedent. Lacey v. State, 44 Ga. App. 791 (163 S. E. 292); Mobley v. Macon Nat. Bank, 42 Ga. App. 267 (155 S. E. 778), affirmed, 174 Ga. 256 (162 S. E. 708, 82 A.L.R. 560). A majority decision of the Supreme Court is binding as a precedent on the Court of Appeals until the decision is overruled or modified by the Supreme Court. Battle v. State, 58 Ga. App. 395 (198 S. E. 719). The Woodside opinion is the first to declare whether the particular language in the Hurt case is obiter, and its decision that it is, although by a divided bench, is binding on this court. The same is true of all the other Supreme Court cases discussed and distinguished in the majority opinion in the Woodside case, and accordingly none of such decisions offers this court any valid reason to decline to follow the Woodside ruling.
But it is also contended that there are at least two older cases not considered or distinguished in, the Woodside case which require a contrary determination, and which it is the duty of this court to follow, and which would require a contrary determination of the question: Georgia So. & Fla. R. Co. v. Small, 87 Ga. 355 (13 S. E. 515), and Gate City Terminal Co. v. Thrower, 136 Ga. 456 (71 S. E. 903). In the former case the railroad company commenced a statutory proceeding to- condemn Small’s land; Small commenced an action to enjoin the con[623]*623demnation proceeding and the cases were tried together. Small appealed to the superior court for jury trial from the award of the sheriff’s jury, this being the proper ” procedure under the charter of the railroad by which the condemnation proceeding was begun. The issue on appeal to the Supreme Court was raised by objection to evidence in the superior court trial of the value of the property at the time of that trial, it being contended that value should be set as of the time of the first award. The court in rejecting the contention said (at p. 357): “This question depends upon what time the taking is complete so as to authorize the railroad company to take possession of the land . . . We have carefully scrutinized this record, and there is no indication or intimation therein that any tender of the amount assessed was made by the company to Small. There was consequently no taking by the company for public use, and it was no error on the trial of the appeal to admit evidence of the value of the, property at the time of the trial.” This case was decided by two judges, but it was approved by a full bench in the Thrower case and will accordingly be considered to be as binding on this court as if rendered in the first instance by a full bench.
What was the Small case deciding? It clearly states the limits of its own decision as follows: first, an evidentiary question was raised; second, the decision rested upon when market value shall be determined in a condemnation case; third, this value element depends upon when there is a taking “so as to authorize the railroad company to take possession of the land.” If the “taking” in the Small case is the same as the “taking” in the Woodside case, then we apprehend a variance between them; otherwise, not.
What, then, was the Woodside case deciding? It specifically states that it is reviewing a decision of the trial court refusing to dismiss the condemnor’s appeal because the constitutional “first paid” provision has not been complied with; secondly, that to do this it must construe the constitutional provision. Neither the Small case nor any other case prior to Woodside has directly undertaken to construe Code (Ann.) § 2-301. The Woodside case holds the Constitution to mean (a) “that payment of just [624]*624and adequate, compensation must precede an actual physical taking in toto of the owner’s property for a public use” (p. 77), (which is what the Small case decided) and in. addition it holds that the Constitution prohibits “the taking of any substantial right of property which an owner has in his land.” P. 80. Thus Woodside is a case of first impression in this State on the question of the,' full meaning' of this Constitutional provision. Woodside distinguishes, as Small did not, between a legal taking and a physical appropriation. A fair construction of the Woodside case shows its holding to be that both constitute a (‘taking” within the'meaning of the prepayment requirement of our Constitution. The legal taking, as opposed to the physical appropriation, begins at the very moment a proceeding in rem is filed against the property by the condemnor, and it is not complete until the land is actually physically transferred to the possession of the condemnor, and all the, time between, whether days or years, is time during which the “legal taking” is in progress. The Constitution requires that there must be prepayment before there is any taking at all—which Woodside says means not only physical appropriation, but legal taking as well, as first evidenced by the filing of the condemnation proceedings, or by any act whereby the owner is deprived of some substantial interest in his property. Yet the law does not require an impossible thing; it does not require prepayment until there is some step in this process of legal taking which may act as a point to determine value,, for one cannot pay for that which has no value or an entirely unascertained value. That point arrives in the case when the award of the assessors is returned, it being subject, as held in the Woodside case (p. 82), under Code § 36-508 to become “a judgment by a tribunal competent in law to fix the rights and liabilities of the parties to the proceedings with reference to the matters and things involved. Oliver v. Union Point & W.P.R. Co., 83 Ga. 257 (9 S. E. 1086); Central Ga. Power Co. v. Nolan, 135 Ga. 443 (69 S. E. 561); Thomas v. Central of Ga. Ry. Co., 169 Ga. 269, 271 (149 S. E. 884); Georgia Power Co. v. Fountain, 207 Ga. 361 (61 S. E. 2d 454); McGreggor v. W. L. Florence Construction Co., 208 Ga. 176 (65 S. E. 2d 809); Cable v. State Highway Board, 208 Ga. 593 (68 [625]*625S. E. 2d 564)' From that moment on; the condemnor has no further justifiable excuse for refusing to abide the prepayment provision of our Constitution. It may dispute the value set by the assessors; it may appeal to a jury and get a new trial; it may appeal from there to the appellate court and subsequently cause one or more, further trials before there is an exhaustion of the remedies of the losing party, but what it may not do is continue with any step involved in the legal “taking” of the property, including appeals authorized by law, without meeting the prepayment requirement, since it can no longer contend that the value is so unascertained as to make it impossible to comply therewith.
The appeal to the jury in the superior court in the Small case was by the property owner. In that case, there had been no payment or tender by the condemnor at the time of the trial in the superior court. It is there held as follows (p. 357): “This question depends upon what time the taking is complete so as to authorize the railroad company to take possession of the land. Under the clause of the Constitution above quoted, [Code, Ann., § 2-301, supra] the land owner must first be paid, before the railroad company is entitled to take his property and go into possession of it.” Since no payment or tender in that case had been made at the time of the trial and since under the Constitution there, can be no taking until after payment or tender, the value of the property at the time of the trial was held to be the proper measure of recovery for the property owner. In Gate City Terminal Co. v. Thrower, 136 Ga. 456, supra, the condemnor tendered the amount found by the assessors to be, the value of the condemned property and the owner appealed. It was there held in substance that the right to take the property by the condemnor having become complete upon its tender of the amount found to be its value by the assessors, the value of the property at the time of the tender was the proper measure of recovery for the owner. In neither of these cases and in no other case decided by the Supreme Court or this court has the question been made and determined as to just when payment or tender may be required of the condemnor before the proceedings to take may continue, under [626]*626a proper construction of the constitutional provision in question. The Woodside ease, although by divided bench, decides this question for the first time in this State. It is, therefore, not only binding on this court, 'but in our opinion is a sound construction of the constitutional provision in question designed to guarantee a substantial right to the sovereign citizens of this State in the ownership and enjoyment of their private property.
The trial court did not err in dismissing the appeal of the condemnor on the ground that it had not complied with the Constitutional condition precedent to appeal by first paying or tendering the amount of the award.
Judgment affirmed.
Gardner, P. J., Carlisle, Quillian and Nichols, JJ., concur. Felton, C. J., dissents.