dissenting. As I understand the ruling of the majority in the Woodside 'case it simply means that where a condemnor has taken or damaged private property without the payment or tender of just compensation within the time for appeal, he can proceed no- further with an appeal. There is mo law in this State making the payment or tender a prerequisite for a condemnor’s appeal. The only constitutional or statutory safeguard is that property shall not be taken or damaged without tender or payment of compensation. I yield to no man in my adherence to the constitutional rights of citizens. At the same time I do not yield my duties under my oath of office in adhering to constitutional and established legal principles in deciding cases according to’ the Constitution and laws of this State as I conceive them to be regardless of every other consideration. If the Constitution is inadequate, if our statutes are inadequate, there is a remedy for correction under law. I think it important at this point in history for the courts of Georgia to avoid the pitfalls of unwarranted judicial action Which we are so zealously opposed to in other jurisdictions.
I dissent from the ruling in the first division of the opinion. A majority of the .members of the Supreme Court is without power or authority to declare a six-judge ruling obiter, as such action is a material modification of the full-bench decision. Code § 6-1611 provides: “A decision rendered by the Supreme Court prior to the first day of January, 1897, and concurred in *627by three Justices, cannot be reversed or materially changed except by the concurrence of at least five Justices. Unanimous decisions rendered after said date by a full bench of six shall not be overruled or materially modified except with the concurrence of six Justices, and then after argument had, in which the decision by permission of the Court, is expressly questioned and reviewed; and after such argument, the Court in its decision shall state distinctly whether it affirms, reverses, or changes such decision.” I have been unable to find a case which decides that a mere majority has the power to overturn or materially modify a full-bench six-judge case without the concurrence of six judges. The many cases in which full-bench cases have been modified materially or reversed have been concurred in by a full bench. There may be some recent exceptions not based on any authoritative ruling by a full bench. A ruling by a full bench has the force and effect of a statute until reversed or modified according to law. Code § 6-1611. Every litigant, big' or little, is entitled to the protection of this provision of law. Even the Supreme Court admits that a majority ruling which does not follow an older full-bench case is not binding on anybody, not even the majority members. Whether a court consciously or unconsciously by a majority vote fails or refuses to follow the older binding case or cases, it deprives the losing party in that case of the equal protection of the law for the reason that litigants in later cases obtain favorable rulings based on the binding law of the older case, as illustrated by the decisions in the Sylvania Electric Products, Inc. and the Rivers cases cited in the majority opinion. Judges, like other people, are imperfect, and many times make mistakes, which everybody understands, but that very consideration should put us on our guard and cause us to apply our patience, study and all the wisdom we can muster to the impartial and dispassionate consideration of every question that comes before us. Majorities can be wrong, and often are, but when we see that injustice has been done we can set the law right at least as to future cases as the majority so graciously did in the Rivers case. The ruling of the majority in the Woodside case is not binding on us or them because the Hurt case has not been re*628versed or modified according to law and the principle announced in the Sylvania Electric Products, Inc., case dissent and the ruling adopting this dissent in the Rivers case governs us in this case. Moreover, in my opinion the record in the Hurt case shows that the ruling -as to taking was not obiter. The very fact of the difference of opinion as to whether a case is obiter is sufficient to show the materiality of modifying- the old opinion by declaring it or part of it obiter. When a full bench of judges rules on a question the presumption is that they do not regard it as obiter. They know that they should not rule on a question not made by the record. Judges are not required to preface every ruling with a decision that what they are about to rule on is not obiter. To declare a ruling obiter is in my judgment a material modification under the cited Code ■ section, and if the Hurt case is in the way of-the Woodside decision it is still in my way because it has not been legally disposed of and still has the force and effect of an unchanged statute. Some of the full-bench cases reversing or modifying older cases are Weed v. Knorr, 77 Ga. 636 (1 S. E. 167); Sanford v. Sanford, 58 Ga. 259; Broach v. Smith, 75 Ga. 159; Thornton v. Lane, 11 Ga. 459, 501; Woolfolk v. State of Georgia, 81 Ga. 551 (8 S. E. 724); Sturtevant v. Robinson, 138 Ga. 734 (75 S. E. 1121).
The court in Weaver v. Carter, 101 Ga. 206 (28 S. E. 869) clearly stated that it requires a full bench to materially modify an older case to make -the modfication binding and many examples are cited as physical precedents.
I dissent from the rulings in divisions two and three of the majority opinion. I again call on -the ruling in the Rivers case. There are several older cases by full benches which clearly expressly hold or necessarily by implication authoritatively hold that where land has not been actually taken or damaged and there has been no payment or tender of compensation there has been no taking. The principal case is Gate City Terminal Co. v. Thrower, 136 Ga. 456 (71 S. E. 903), which specifically approved the ruling by two- judges in Georgia So. & Fla. R. Ca. v. Small, 87 Ga. 355 (13 S. E. 515). The effort 'by the majority in this case to distinguish these'cases is beyond *629my poor powers of comprehension. The Woodside case is based solely on the, fact that the condemnation proceedings and the fixing of the amount of damage by the assessors was a taking under the law. The only question involved in the cases next above mentioned was the measure of damages. In those cases the determination of the measure of damages depended on the question whether there had been a taking by tender or payment or otherwise. If there had been a payment or tender there was a taking and the measure of damages was the amount of compensation due, at that time plus interest. If there had been no taking the measure was the amount of compensation due at the time of the trial. The fact that the condemnee appealed cuts no figure in the slightest. The court ruled that since there was no payment or tender there had been no taking and it is obvious that the court necessarily also adjudged that there had been no actual taking in any way whatsoever. Those, cases are clear-cut rulings that assessors’ awards and appeals by condemnors do not. constitute a taking. How much clearer could an authoritative ruling be and how much further could it be removed from obiter? To say that these cases are not in point and not binding is the same as to say that a ruling on the law of title to land is not binding because the rule is stated in a decision in a damage action for cutting timber rather than in an ejectment or injunction case. Conceding for the sake of argument only that I am wrong about my contention that a majority cannot declare a full bench of six obiter (and I make this concession without the slightest recession from my position), I am quite sure that the majority has not complied with the law in disposing of these two above cited cases and others which I shall cite which I think are necessarily in the way of my following the Woodside decision. Code § 6-1611 makes no provision for reversing or modifying an older case by not even mentioning it. The Rivers decision again confronts us. The Code section confronts us. I follow them with the little capacity I have. I think I am bound by the oldest -cases in point, mentioned above and hereinafter, until the Supreme Court gets them out of my way in a manner prescribed by law. There are other such cases which clearly indicate that the payment or tender *630is not prerequisite to an appeal but only to actual physical taking and exercise, of dominion. They are Oliver v. Union Point & W.P.R. Co., 83 Ga. 257 (9 S. E. 1086) in which the court stated that the statute restricted the tender to no particular time; Chambers v. Cincinnati & Georgia R., 69 Ga. 320, wherein it was held that payment was prerequisite to actual taking; Central Georgia Power Co. v. Stone, 142 Ga. 662 (83 S. E. 524), in which the condemnor paid the amount of the award a year after the appeal was filed; Georgia Ry. & Power Co. v. Mooney, 147 Ga. 212 (93 S. E. 206), where a dismissal by the condemnor of the entire condemnation proceeding was permitted. Certainly no court would permit the dismissal of an entire condemnation proceeding after the condemnor had taken or damaged the property in terms of law. Such a result would be the zenith of unconstitutionality.
Neither the Constitution nor a statute requires that payment is prerequisite to the appeal of a condemnation case. If it is remotely possible that a condemnor should ever be insolvent and thereby cause loss to a condemnee the law can very easily be amended to require a bond. No one has suggested, assuming the solvency of the condemnor, how a condemnee can in any way suffer because he is unable under any rule of law to show his full damages because of the taking or damaging of his property, either or both. If the law in such respect is lacking it should be corrected immediately by legislative action. This decision is not the remedy.