Department of Transportation v. City of Atlanta

*138Hill, Chief Justice,

dissenting.

The majority acknowledges that the DOT has been granted the power to condemn “any property,” OCGA § 32-3-1 (a), see also OCGA § 32-2-2 (a) (8), supra, including public property. However, the majority finds that the General Assembly has provided the DOT with procedures to condemn only “private property,” not public property. OCGA § 32-3-4; see also OCGA §§ 22-2-102, 22-2-130, supra. Why would the General Assembly grant the power to condemn public property but withhold the procedures to do so? I find that the procedure has been provided, as well.

As the majority points out, the General Assembly provided the procedure for condemning private property for public road purposes in OCGA § 32-3-4, supra, as follows: “Whenever any state agency, county, or municipality desires to take or damage private property . . . for public road purposes . . . such state agency, county, or municipality .. . may file a proceeding in rem . . . condemning the property . . . .” The Code sections which follow provide for the contents of the condemnation petition, the contents of the declaration of taking, the deposit of estimated compensation, and service of process. OCGA §§ 32-3-5 through 32-3-8. This is known as the “declaration of taking? procedure.

As for limited access highways, which this is, in OCGA § 32-6-112 the General Assembly provided DOT the procedure to condemn public property for such highways “in the same manner” as authorized by law for “public roads,” saying: “The department, a county, or a municipality may acquire private or public property and property rights for limited-access facilities and service roads . . . through gift, devise» purchase, or condemnation in the same manner as such governmental units are authorized by law to acquire such property or property rights in connection with public roads within their respective jurisdictions.”

The “same manner” refers, at least, to the “declaration of taking” procedure provided by OCGA § 32-3-4 et seq., supra.1 The majority’s construction of OCGA § 32-6-112, supra, is that the General *139Assembly accomplished nothing by including the words “public property” in that Code section. That is contrary to the rules of statutory construction.

In Butterworth v. Butterworth, 227 Ga. 301, 304 (180 SE2d 549) (1971), the court reviewed the rules of statutory construction and said, in pertinent part: “ ‘The rule of construction that effect is to be given to all the words of a statute, forbids that two provisos should be treated as having no more scope or significance than one of them would have if standing alone. It is better to wait for legislative amendment than to arbitrarily reject one of the provisos as senseless or superfluous.’ Smith v. Davis, 85 Ga. 625 (2) (11 SE 1024). ‘[A]ll the words of the legislature, however numerous, ought to be preserved, and effect given to the whole, if it can be done. No doubt courts could sometimes better legislation by rejecting some of the words delivered to them by the legislature for construction; but to do this courts have no power.’ (Emphasis supplied.) Smith v. Davis, supra, p. 631.”

Because the majority refuse to give any effect to the words “public property” in OCGA § 32-6-112, I dissent to Division 3 (b) of the majority opinion, including what is said on motion for reconsideration.

I am authorized to state that Presiding Justice Marshall and Justice Weltner join in this dissent.

State Hwy. Dept. v. Hatcher, 218 Ga. 299 (127 SE2d 803) (1962), is inapplicable here. In that case the Highway Department sought to use the 1961 declaration of taking procedure applicable to “state aid roads” to condemn private property for a “limited access [interstate] highway” as authorized by a 1955 act (now OCGA § 32-6-112). The court held that the 1961 declaration of taking procedure could not be so used because the 1961 act had been expressly amended to limit its application to “state aid roads,” thereby precluding reliance on the 1955 “limited access highway” act. The following year, the General Assembly provided that interstate highways are state aid roads, Ga. L. 1963, p. 280, and in 1973 the reference to “state aid roads” was deleted from what is now OCGA § 32-3-4, Ga. L. 1973, p. 947, § 95A-603, so that the declaration of taking procedure became applicable to all public roads. This legislative history shows that it was the intent of the General Assembly to allow DOT to condemn property for limited access highways, OCGA § 32-6-112, by use of the declaration of taking *139procedure provided by OCGA § 32-3-4.