concurring. 1. The right of eminent domain is the right of the State to reassert, either temporarily or permanently, dominion over lands within the State. Code § 36-101. The right may be asserted by agencies of the State, or corporate bodies when authorized by law. Code § 36-103. The Constitution provides that the right of eminent domain shall never be abridged or so construed as to prevent the General Assembly from taking property and franchises for public use. Constitution, Art. IV, Sec. II, Par. I (Code, Ann., § 2-2501). There can be no taking of private property for public uses without “just and adequate compensation being first paid.” Constitution, Art. I, Sec. Ill, Par. I (Code, Ann., § 2-301). Neither the State, the Federal Government, nor any corporation exercising the right of eminent domain, can take private property except by “due process of law.” Fifth Amendment, Federal Constitution; Georgia Constitution, Art. I, Sec. I, Par. Ill (Code, Ann. § 2-103).
By act of the General Assembly approved January 13, 1938 (Ga. L. 1937-38, Ex. Sess., pp. 251-255), the provisions of Code Chapter 36-11 were extended to include all persons “exercising the right of eminent domain,” which chapter provides for proceedings in rem against the described property sought to be condemned. In the present case the City of Atlanta, having the right so to do (Marist Society of Georgia v. City of Atlanta, 212 Ga. 115, 90 S. E. 2d 564), filed its petition to condemn “the fee simple title” to described lands of the plaintiffs in error, the condemnees. Assessors were appointed and made an award fixing the amount of compensation to be paid the condemnees. Thereafter the city, without tendering the amount of the award to the condemnees, or paying it into the registry of the court, filed its appeal to a jury. The condemnees filed a motion to dismiss the appeal, wherein it is alleged (in paragraph 36) that the consti*85tutional provisions of the State Constitution heretofore cited require that the amount “of the award of the assessors either be first tendered and paid to said condemnees, or the amount of said award paid into the registry of this court,” and that the constitutional provisions cited deny the right of appeal to a jury from the award “without simultaneously therewith or within said ten-day period” allowed for appeal “paying the amount of said award into the registry of this court.”
Under the ruling of this court in Jarvis v. State, 197 Ga. 704 (30 S. E. 2d 484), Franklin v. Mobley, 202 Ga. 212 (42 S. E. 2d 755; and McGill v. State of Ga., 209 Ga. 282 (71 S. E. 2d 548); paragraph 36 of the motion to dismiss made a question for construction of the constitutional requirement for “adequate compensation being first paid.” In paragraph 37 of the motion to dismiss, it is contended that, if stated Code sections “be construed to. permit” an appeal without the amount of the award being tendered and paid to condemnees or paid into the registry of the court, they are contrary to the “first paid” provision of the Constitution. Having previously invoked a construction of the provision that compensation shall be first paid, it is immaterial whether this contention is meritorious.
2. Since private propérty may not be taken for public purposes except by “due process of law,” and “shall not be taken or damaged for public purposes without just and adequate compensation being first paid,” the real question for, determination by this court in the present case is whether or not a taking of the property of the condemnees resulted from a filing of the award of the assessors in the office of the clerk of the superior court, as provided by law.
The act of 1914 (Code Ch. 36-11), providing for a condemnation of property in rem, and under which act the city filed its petition, was. amended by the act approved January 13,1938 (Ga. L. 1937-38, Ex. Sess., pp. 251-255); and by the amendment it is provided that Chapters 36-2 to 36-6, providing a method of procedure for the condemnation of private property, are not repealed, but that the acts of 1914 and 1938 are supplementary thereof and thereto. Code § 36-604 provides: “If no appeal be entered within 10 days after the award is filed, or if the persons seeking condemnation shall fail to pay the amount of the award or final *86judgment, the clerk shall issue execution upon such award or judgment, which may be levied upon any property of the corporation or person condemning.”
Construing this Code section, this court in Thomas v. Central of Ga. Ry. Co., 169 Ga. 269 (149 S. E. 884), in a full-bench decision, held that, where an award of assessors was made and not paid, and no appeal was filed from such award, it was the duty of the clerk to issue an execution on the award, and that the execution would not be defeated because the condemnor had endorsed an order of dismissal upon its notice given in connection with the condemnation proceedings and upon the award. In the opinion it is said: “It may be true that an award by assessors in such cases is not a judgment rendered by a court, but it is a judgment rendered by a tribunal which is competent to- fix the rights and liabilities of the parties to the proceedings with reference to the matters and things involved.”
In Code § 36-1111 it is said in part: “It shall be within the power of the court, upon payment of the award or verdict into the registry of the court, to adjudge a condemnation of the title in fee simple, . . And in § 36-1113 it is said in part: “After condemnation is had and the fund paid into the registry of the court, the petitioner [condemnor] shall not be concerned with or affected by any subsequent proceedings unless upon appeal from the verdict or award as hereinbefore allowed.”
If an award of assessors standing alone is such a judgment as will authorize and support the issuance of an execution for its collection, and is such a determination as will support a judgment by the court that the title is condemned in fee simple, how can it be said that an award of assessors is not a taking of property within the provision of the Constitution requiring that adequate compensation shall be first paid? Our statutory law and Constitution do not authorize the issuance of an execution as a preliminary to judicial proceedings. Executions are issued only after a judgment by a competent tribunal fixing the right of the parties in the manner provided by law.
Prior to the act of 1914 (Code Ch. 36-11), and in condemnation proceedings under the act of 1894 (Code Chs. 36-2 — 36-6), and more particularly with reference to the provisions of Code § 36-302, it was held by this court that, “In order to condemn *87property for public purposes, it is necessary, preliminary to the commencement of the proceeding, for the condemnor to make an effort to agree with the owner of the property upon a price to be paid for the land.” City of Atlanta v. Austell, 146 Ga. 456 (1) (91 S. E. 478). To the same effect see City of Elberton v. Hobbs, 121 Ga. 750 (49 S. E. 780); Piedmont Cotton Mills v. Ga. Ry. &c. Co., 131 Ga. 129, 137 (4) (62 S. E. 52); Barber v. Housing Authority of the City of Borne, 189 Ga. 155, 161 (5 S. E. 2d 425); Miller v. State Highway Dept., 200 Ga. 485 (37 S. E. 2d 365).
The act of 1914 (Code Ch. 36-11), as amended, provides that condemnation in rem is allowed in those cases where the condemnor “shall find or believe that the title of the apparent or presumptive owner of such property is defective, doubtful, incomplete or in controversy.” Code (Ann.) § 36-1104. It has, therefore, been held that, in such condemnation proceedings in rem, “it is not necessary that the condemnation petition allege an unsuccessful effort to procure the land by contract or a failure to agree as to compensation.” Hoch v. Candler, 190 Ga. 390 (2) (9 S. E. 2d 622). Such a ruling does not revoke, modify, or repeal the obvious legislative intent, or the constitutional mandate, that adequate compensation shall be “first paid” where private property is acquired for public purposes.
The cases of Mims v. Macon &c. R. Co., 3 Ga. 333, Young & Calhoun v. Harrison, 6 Ga. 130, Parham v. Justices of the Inferior Court of Decatur County, 9 Ga. 341, and Mayor &c. of Rome v. Perkins, 30 Ga. 154, pertaining to the State’s power of eminent domain, and similar eases, decided prior to the adoption of the Constitution of 1877, are not to be confused with decisions subsequent to that Constitution, although some of these cases may appear to be in line with what is here said. And decisions by this court prior to the act of 1894, now codified as Chapters 36-2 to 36-6, inclusive, such as Oliver v. Union Point &c. R. Co., 83 Ga. 257 (9 S. E. 1086), and Ga. So. & Fla. R. Co. v. Small, 87 Ga. 355 (13 S. E. 515), should not be confused with decisions rendered subsequently to the act of 1894, and the act of 1914 (now codified as Chapter 36-11). Nor should decisions pertaining to the damaging of private property, where the damage claimed results solely from the public improvement made, and where no part of the property of the citizen is taken, be confused *88with cases pertaining to the State’s power of eminent domain. In this connection, see City of Atlanta v. Green, 67 Ga. 386; Moore v. City of Atlanta, 70 Ga. 611; Streyer v. Ga. So. & Fla. R. Co., 90 Ga. 56 (15 S. E. 637); Hurt v. City of Atlanta, 100 Ga. 274 (28 S. E. 65); and Austin v. Augusta Terminal Ry. Co., 108 Ga. 671 (34 S. E. 852, 47 L. R. A. 755).
In City of Atlanta v. Green, 67 Ga. 386, supra, it was said that, prior to the Constitution of 1877, municipal corporations were not liable for consequential damages resulting from the improvement of public streets; and that the damages which could be recovered must be the actual depreciation in the value of the property, which damages might be decreased by the actual benefits.
Counsel for the condemnee in the present case strongly urge that Hurt v. City of Atlanta, 100 Ga. 274, supra, is in point and controlling as to when a “taking” of private property occurs under the power of eminent domain. In their motion for rehearing, counsel assert that “this court, by a four-to-three maj ority, has no statutory or constitutional power to change or redefine the definition of 'taking’ as contained in that full-bench decision.”
In the statement of facts in the Hurt case, it is said that the structure “occupied all of the public thoroughfare upon which Mrs. Hurt’s property abutted; but it did not encroach upon her land, and no part of the same was actually taken from her. It appeared from the evidence that the erection of the bridge rendered ingress to and egress from the building less convenient than formerly, and consequently impaired its utility and diminished its rental value; but it also appeared that, independently of all other causes, the market value of the property as a whole was considerably enhanced . . P. 275. It is clear from this statement of fact that the ruling in the Green case might have been applied and the case determined on the facts found by the court, to the effect that the actual value of the property was enhanced. The court in making the statement with reference to a “taking” under the constitutional provision was applying a “taking” to damages and not to eminent domain. This is clear from the decision wherein the court ruled: “Beyond doubt, an easement is, in a sense, 'property,’ and there are, perhaps, cases where the appropriation of a mere easement, — such, for instance, as a railroad right-of-way, — might be held to be a taking of *89•property. Even then it would be a nice question as to whether such an appropriation should not more properly be termed a ‘damaging’ than a ‘taking.’ In either event, compensation would have to be paid, and that is the material thing in such a matter. In the present case, however, treating Mrs. Hurt’s right of' ingress and egress to her building as an easement, the destruction or impairment of the same cannot, we are satisfied, be regarded as a taking of her property within the meaning of the Constitution. ‘There is a broad distinction between cases of this character and those in which possession of, and dominion over, private property is taken for public use.’ Moore v. City of Atlanta, 70 Ga. 612.” P. 280.
In a decision of this court rendered February 17 of this year, in State Highway Dept. v. Strickland, 213 Ga. 785, 788 (102 S. E. 2d 3), it is said: “In Hurt v. City of Atlanta, 100 Ga. 274 (28 S. E. 65), it was held that, even though the erection of a bridge in a public street might render less convenient the means of ingress and egress to an existing building on an abutting lot, such was not a taking of property within the meaning of the constitutional provision which requires the payment of just and adequate compensation before taking or damaging private property for public purposes.” This construction of the Hurt case, being a full-bench decision, is binding on the members of this court and the parties in the present litigation.
The decision of this court in Wilson v. State Highway Dept., 208 Ga. 510 (67 S. E. 2d 578), is not in conflict with the majority ruling in the present case. In the Wilson case, no constitutional question was made, or attempted to be made, it being there contended that, although the funds had been paid into the registry of the court, this was not sufficient, but that a tender had to be made to the condemnee. The decision of the Court of Appeals, after the transfer, in Wilson v. State Highhway Dept., 85 Ga. App. 907 (70 S. E. 2d 535), clearly shows payment into the registry of the court, and that counsel undertook to make the further contention that, since a judgment of condemnation as authorized by Code § 36-1111 had been entered, the case was concluded and there was no right of appeal. Judge Sutton, for the Court of Appeals, pointed out the provisions of § 36-1113, which section *90clearly provides for an appeal after the judgment of condemnation authorized by § 36-1111.
The ruling of the Court of Appeals in Olliff v. Housing Authority of City of Statesboro, 89 Ga. App. 43 (78 S. E. 2d 549), is not in conflict with the majority opinion in the present case, and is not authority for holding that an appeal will lie from the award of the assessors without tendering the amount of the award to the condemnee or paying it into the registry of the court. In the Olliff case, the funds were paid into the registry of the court before the appeal was entered, and the sole contention in that case was that there had to be a tender to- the condemnee.
The case of Georgia Ry. &c. Co. v. Mooney, 147 Ga. 212 (93 S. E. 206), is not in conflict with the full-bench decision of this court in Thomas v. Central of Ga. Ry. Co., 169 Ga. 269, supra. In the former case, as shown by the Code section cited, and by the record in that case, the Georgia Railway & Power Company was seeking only an easement or right-of-way for the erection of a power line. After the award of the assessors, the power company dismissed its appeal and did not enter upon the land of the condemnee. Since, under the ruling in the Hurt case, there was no damaging of the property, the condemnee was not entitled to collect the amount of the assessors’ award.
The Constitutional Commission of 1943 and 1944, to write a new Constitution, eliminated from the draft submitted to the General Assembly the provision that adequate compensation shall be first paid, and substituted in lieu thereof the provision of the Federal Constitution. This change was made because the Commission did not want to require payment of the award to the condemnee or into the registry of the court as an essential of an appeal, and because the Commission did not want consequential damages fixed prior to a completion of the project for which the land was taken. See Minutes of Constitutional Commission, Yol. I, pp. 155, 159, 214, 216, and the draft of the proposed Constitution, Art. I, Sec. Ill, Par. I (Vol. II, p. 551). The General Assembly of Georgia, with knowledge of the action of the Constitutional Commission, declined to- accept the Commission’s version, and restored the former requirement that private property shall not be taken or damaged for public purposes without adequate compensation being first paid. The *91action of the General Assembly, in changing this provision of the Constitution, and the action of the people in approving the Constitution as revised by the Assembly, are binding upon this court and upon the litigants in this case and all similar eases. The provision for just compensation to be first paid will not be avoided by members of this court who participated in writing the new Constitution of 1945 solely because they may have entertained views contrary to the wishes of the General Assembly and the people of this State.
For the foregoing reasons, in addition to those expressed in the opinion of Mr. Justice Candler, I concur in the judgment of reversal. I am authorized to say that Mr. Chief Justice Duck-worth concurs with the views herein expressed.