Opinion
22020.
ARGUED MAY 13, 1963.
DECIDED MAY 29, 1963. REHEARING DENIED JULY 3, 1963.
Condemnation of land; constitutional question. Carroll Superior Court. Before Judge Foster from Tallapoosa Circuit.
Shirley C. Boykin, Hansell, Post, Brandon Dorsey, for plaintiff in error.
Eugene Cook, Attorney General, Carter Goode, E. J. Summerour, Assistant Attorneys General, William J. Wiggins, contra.
Where property is condemned for public road purposes under the provisions of the 1957 Act (Ga. L. 1957, pp. 387-397; Code Ann. Ch. 36-6A), and the value of the property is fixed by the jury on appeal at a sum less than the award of the special master, interest is due by the condemned only from the date of the verdict.
ARGUED MAY 13, 1963 — DECIDED MAY 29, 1963 — REHEARING DENIED JULY 3, 1963.
On May 14, 1959, the State Highway Department filed a proceeding to condemn described lands under the provisions of the Act of the General Assembly of 1957 (Ga. L. 1957, pp. 387-397; Code Ann. Ch. 36-6A). A special master, as provided by that Act, was appointed by the judge of the superior court. After a hearing, the special master, on February 23, 1960, awarded to Mrs. W. J. Steward, as life tenant, and the First National Bank of Atlanta, as executor and trustee of W.J. Stewart (hereinafter referred to as the condemnee), the sum of $48,625. On February 27, 1960, the judge entered a decree condemning the property in fee simple upon payment of the award.
On March 4, 1960, the State Highway Department filed its appeal to a jury in the superior court. On October 9, 1962, the jury returned a verdict for the condemnee in the sum of $31,934. On October 11, 1962, the judge entered a judgment reciting that condemnee had received an over payment of $16,691. It was decreed that the condemnor have judgment for this amount, together with interest at 7% per annum from April 27, 1960, in the sum of $2,953.35.
On October 15, 1962, the condemnee filed a motion to strike the item of interest in the sum of $2,953.35, and on the same date the judgment was amended striking the item of interest. On October 22, 1962, the condemnor filed a motion to vacate and set aside the order of October 15, 1962, amending the judgment of October 11, 1962, which included interest.
On this motion the court entered a rule nisi requiring the condemnee to show cause why the motion should not be granted. To this motion the condemnee filed a response wherein it was alleged in part: "... interest in said judgment is illegal ... there being no express contract on the part of condemnee to pay interest on any amount, nor is there any basis for holding there is any implied contract ... to do so." A requirement for "the condemnee, to pay interest on any said amount paid into court under the proceedings under eminent domain, brought by the State of Georgia," and "to accept an involuntary loan forcibly, would be violating the Constitution of the State of Georgia Art. I, Sec. I, Par. II, Code Section 2-102, which provides that: 'protection to person and property is the paramount duty of the Government and shall be impartial and complete.'" To "charge interest on the amount which condemnor was required to pay into court to take possession of the private property of condemnee under the statute, would be forcing the condemnee to accept a loan from the State of Georgia involuntarily and be charged with interest, thereby depriving the condemnee of equal protection under the aforesaid section of the law ... and condemnor is undertaking to make a contract by charging interest on an unliquidated demand, when the primary and only purpose of the taking or condemning said land is for the purpose of establishing the value of the property, to be paid to condemnee, and until the same is established by law there could be no interest charged.... The Act of 1957, pp. 387-396 ... which provides 'If the verdict of the jury be less than the award of the special master, the owner shall be bound to refund any excess paid to or received by him and a judgment for such excess shall be rendered against him, plus lawful interest thereon from the date of such payment,' is in constitutional as herein set out and alleged and void for the reasons herein set forth ... requiring your petitioner to involuntarily borrow money and accept a loan from the Government and then being charged with interest against its wishes or consent ... would violate the due process clause of Georgia ... Art. I, Sec. I, Par. III, Code Sec. 2-103, 'That no person shall be deprived of life, liberty or property, except by due process of law,' ... and it would require the condemnee, movant herein, to pay interest on money which is involuntarily forced on it, ... The law only allows interest because of a contract, express or implied, for its payment, or as damages for the detention of money, or for breach of some contract, or the violation of some duty ... interest at 7% per annum in the amount of $2,953.35 is wholly illegal ... and would deprive this movant ... of due process of law ..."
On January 4, 1963, the judge passed an order reciting that the judgment of October 11, 1962, had been amended on October 15, 1962. It was ordered, "after the consideration of all pleadings and all issues raised therein," that the judgment of October 15, 1962, be vacated and the judgment of October 11, 1962, be reinstated, "except the interest as specified in said judgment of October 11, 1962, as $2,953.35 shall be $2,865.75."
The writ of error of the First National Bank of Atlanta, as executor, was directed to the Court of Appeals, and was transferred by that court to this court.
The response of the condemnee to the rule nisi (issued on October 22, 1962, pertaining to the validity of the provision for the payment of interest by the condemnee in the judgment of October 11, 1962) was filed on December 4, 1962. In his final judgment reinstating the requirement for the payment of interest by the condemnee the judge of the superior court recited that such judgment was rendered "after the consideration of all pleadings and all issues raised therein." This recital by the court could only mean that the subsequent reinstate of the interest as provided in the judgment of October 11, 1962, was a ruling by the court adverse to the contentions of the condemnee that the interest provision of the 1957 Act (Ga. L. 1957, pp. 387, 396, § 15, Code Ann. § 36-615 a) was unconstitutional and void. Any contention by the condemnor that the trial court did not so rule would be in direct conflict with the recitals of the court's final judgment.
A constitutional attack upon a statute must show how and wherein the statute offends the Constitution in order to invoke any ruling upon its validity. Emerson v. Southwest Ga. Regional Housing Authority, 196 Ga. 675 ( 27 S.E.2d 334); Heard v. Pittard, 210 Ga. 549, 552 ( 81 S.E.2d 799). Our statement of facts does not set forth all of the condemnee's contentions as to the invalidity of the interest provision of the 1957 Act, but we have set forth sufficient allegations to demonstrate compliance by the condemnee with the requirements of the rule that constitutional attacks upon a statute must be specific. Because there are constitutional questions for decision, this court has jurisdiction of the writ of error and the Court of Appeals properly transferred it to this court.
The decision of this court in O.K., Inc. v. State Hwy. Dept., 213 Ga. 666 ( 100 S.E.2d 906), is not authority to sustain the provision for the payment of interest by the condemnee under Section 15 of the Act of 1957 (Ga. L. 1957, pp. 387, 396, Code Ann. Supp. § 36-615a), which provides: "if the verdict of the jury be less than the award of the special master, the owner shall be bound to refund any excess paid to or received by him and a judgment for such excess shall be rendered against him, plus lawful interest thereon from the date of such payment, to be collected by levy as in other cases." (Italics ours). The constitutional, attack in O.K., Inc. v. State. Hwy. Dept., supra, was on the act as a whole, and since parts of the act are clearly constitutional, that attack was not upheld. This court has not hereto fore ruled upon the validity of that provision of the 1957 Act for the payment of interest by the condemnee.
"All liquidated demands, where by agreement or otherwise the sum to be paid is fixed or certain, bear interest from the time the party shall become liable and bound to pay them; ..." Code § 57-110. A liquidated demand is "an amount certain and fixed, either by the act and agreement of the parties or by operation of law; a sum which cannot be changed by the proof:..." (Italics ours). Nisbet v. Lawson, 1 Ga. 275, 287; Hargroves v. Cooke, 15 Ga. 321 (12); Bartee v. Andrews, 18 Ga. 407; Roberts v. Prior, 20 Ga. 561; Lincoln Lumber Co. v. Keeter, 167 Ga. 231, 236 ( 145 S.E. 68); Firemen's Ins. Co. v. Oliver, 182 Ga. 212 ( 184 S.E. 858).
In the present case the jury on appeal was required to find the value of the condemnee's property at the time of the taking. Young v. Harrison, 17 Ga. 30 (1); Selma, Rome c. R. Co. v. Keith, 53 Ga. 178; Anthony v. State Hwy. Dept., 215 Ga. 853, 856 (2) ( 113 S.E.2d 768). The amount of the jury's verdict was to be based upon proof as to value, and under the general law of this State the claim of the Highway Department for refund was unliquidated until fixed by the jury. To hold that the condemned was subject to the payment of interest prior to the verdict of the jury would deny the condemnee equal protection of the law (Constitution, Art. I, Sec. I, Par. II; Code Ann. § 2-102), since under the general law of this State interest could not be collected until after the jury's verdict. Equal protection of the law is denied where laws are applied differently to different persons under the same circumstances. Ashley v. City of Greensboro, 206 Ga. 800, 806 ( 58 S.E.2d 815).
The condemnee in the present case was denied "due process of law." Constitution, Art. I, Sec. I, Par. III ( Code Ann. § 2-103). A citizen is denied due process where the procedure applicable to all cases of a similar kind is varied and not followed in his case. Hicks v. State, 196 Ga. 671 ( 27 S.E.2d 307); Williams v. State, 206 Ga. 837 ( 59 S.E.2d 384).
In addition to the denial of equal protection of the law and due process of law, under the general law of this State as to when interest is due and collectible, the condemnee was denied equal protection and due process in that none of the several procedures ( Code Ann. Chs. 36-3, 36-11, and 36-13) for the condemnation of property authorize interest on refunds due the Highway Department prior to the time the amount of such refund is fixed by the verdict of the jury. The Court of Appeals has correctly held that interest is not collectible on refunds prior to the verdict of the jury under Code § 36-603. City of Atlanta v. Lunsford, 105 Ga. App. 247 ( 124 S.E.2d 493); Fletcher v. State Hwy. Dept., 105 Ga. App. 251 ( 124 S.E.2d 755).
The provision of the 1957 Act (Ga. L. 1957, pp. 387, 396; Code Ann. § 36-615a) for interest from the date of payment on the excess paid to or received by the condemnee, where the award of the jury is less than the award of the special master, is unconstitutional and void. The judgment of October 11, 1962, reinstated on January 4, 1963, in so far as it provides for the payment of interest by the condemnee pursuant to such unconstitutional provision, is therefore void.
It has been the rule in this State for more than fifty years that the jury on appeal in fixing the value of the condemnee's property should include interest on the excess from the date of the taking where the verdict of the jury is in a larger amount than the prior award. Gate City Terminal Co. v. Thrower, 136 Ga. 456 ( 71 S.E. 903).
Judgment reversed. All the Justices concur.