(115 Ga. 554,

SAVANNAH, F. & W. RY. CO. v. POSTAL TEL. CABLE CO.

(Supreme Court of Georgia. June 11, 1902.) CONSTITUTIONAL LAW-DUE PROCESS OF LAW -EMINENT DOMAIN-PROCEDURE.

1. The act approved December 18, 1894 (Acts 1894, p. 95), "to provide a uniform method of exercising the right of condemning, taking, or damaging private property" (Civ. Code, 88 4657-4686), is general in its nature, and applies to all persons, natural and artificial, who come within its purview. The act approved December 20, 1898 (Acts 1898, p. 54), amended the existing law, which provided a uniform method for exercising such right of condemuation, only as to telegraph companies which seek to condemu rights of way of railroad companies for the purpose of erecting thereon lines of telegraph. As amended, the law is general, and by its provisions due process of law is afforded to the railroad companies whose property is sought to be condemned.

2. The necessity for taking private property for public use is a question for legislative determination, and the provisions of the Code relating to such taking are not, because they fail to provide for a special tribunal to pass upon such necessity, violative of the constitutional inhibition against taking the property of the citizen without due process of law.

3. The description of the property sought to be condemned, as made in the original notice, was not open to the objection that it was vague and indefinite. The amendment to the original notice was properly allowed, and inured to the benefit of the railway company.

4. Construing section 4679 of the Civil Code as amended by the act of 1898, a telegraph company which has proceeded to condemn a sufficiency of the right of way of a railway company for the purpose of erecting a line of telegraph may, pending an appeal from the award of the assessors, lawfully proceed to construct its line on such right of way after it has deposited the amount of the award in the office of the clerk of the superior court of the county where such proceedings were had. The record does not show any error committed by the trial judge in granting the injunction. (Syllabus by the Court.)

Error from superior court, Chatham county; R. Falligant, Judge.

Proceedings for injunction, brought by the Postal Telegraph Cable Company against the Savannah, Florida & Western Railway Company. From an order granting the injunction, defendant brings error. Affirmed.

12 See Eminent Domain, vol. 18, Cent. Dig. § 166. 42 S.E.-1

W. L. Clay, for plaintiff in error. Garrard & Meldrim and J. R. McIntosh, for defendant in error.

LITTLE, J. The Postal Telegraph Cable Company instituted a proceeding in Chatham county, where the principal office of the Savannah, Florida & Western Railway Company was located, to condemn a portion of the right of way of that company, extending through the counties of Dougherty, Mitchell, Thomas, Brooks, and Lowndes. The proceeding was instituted under the provisions of an act approved December 20, 1898 (Acts 1898, p. 54), which are codified in sections 4657 to 4686, inclusive, of the Civil Code. Subsequently the railroad company filed an equitable petition, in which it prayed that the condemnation proceeding instituted by the telegraph company be enjoined. That prayer was denied in the court below, and the judgment refusing an injunction was brought to this court for review, where it was affirmed, as reported in 112 Ga. 941, 38 S. E. 353. By this decision two legal propositions which are res adjudicata as to the parties in this case were ruled. The first was that, although a statute which authorized the exercise of the power of eminent domain for the purpose of condemning private property for public use may not provide for an appeal from the award of the assessors of the compensation to be paid for the property condemned, it is not, for this reason, unconstitutional; and the second, that in a proceeding instituted by a telegraph company under the provisions of an act of the legislature of Georgia approved December 20, 1898, to condemn so much of the right of way of a railway company as may be necessary to erect, maintain, and operate a telegraph line between certain points, it is not essential that the telegraph company should affirmatively show that, in order to do so, it is necessary for it to condemn such right of way, nor to show that it is necessary for it to use the particular portion of the right of way that it proposes to condemn. After this the railroad company, having amended its petition, again applied for the injunction for which it originally prayed.

The injunction was for the second time refused by the court below, and that judgment was also affirmed by this court in a ruling which is reported in 113 Ga. 916, 39 S. E. 399. The proceeding to condemn the right of way of the plaintiff in error resulted in an award which assessed the damages to be paid to the railway company at $6,000. After this award had been made, and during the pendency of the petition under which the injunction had been refused, the telegraph company commenced the work of constructing a telegraph line over the right of way of the railway company by erecting poles on which to place its wires, having first paid into the registry of the superior court of Chatham county the amount of the award made by the assessors. The railway company met this work of construction with force, and cut down, dug up, and removed from its right of way the poles which were erected by the telegraph company. Then the latter, by an independent proceeding, asked that the railway company be enjoined from interfering with the construction of its telegraph line, from obstructing such construction, and from injuring the property of the telegraph company on the right of way of the railway company. An interlocutory injunction was granted according to the prayer of the petition. To the grant of this injunction the railway company excepted, and the question for us to determine is whether the judge who heard the case and granted the injunction committed error in doing so.

1. It is contended by counsel for the plaintiff in error that the grant of the injunction was error, and that the provisions of the Code of Georgia and of the acts of the legislature under which the condemnation proceedings. were had are unconstitutional-First, because the Code provisions and the acts "lack due process of law"; and, second, because they deny to the railway company (in this case) the equal protection of the law. The reasons urged in the brief of counsel why due process of law is not afforded by the Code and the statutes of this state are that they are deficient (1) in "failing to provide for effective creation of competent tribunal"; (2) "failing to make provision empowering and requiring tribunal to pass upon and adjudicate every material question involved, and to consider and pass upon every material defense"; (3) "failing to provide machinery for enforcing award"; (4) "failing to provide just compensation for property taken." Under the second title of our Civil Code, which refers to special rights, remedies, and proceedings, is contained the general law of force in this state in reference to the condemnation of private property. Section 4657, which is the first section in this article, declares that all corporations or persons authorized to take or damage private property for public purposes shall proceed as indicated in said chapter. Article 2 of that chapter provides for the appointment of assessors. Article 3 provides for

the hearing before the assessors. Article 4 provides for an appeal from the award of such assessors to the superior court of the county where the award is filed; and other sections of this chapter make particular provision for ascertaining the value of the property condemned and the issuance of executions for the amount of the award; and, as we think, inaugurates a constitutional system which provides for just compensation to be paid for property taken under the exercise of the right of eminent domain. By the provisions of this chapter, which is general in its terms, it is expressly provided in section 4685 that the method of condemnation therein set out applies to telegraph companies as well as to all persons, natural or artificial. This chapter is a reproduction in codified form of an act approved December 18, 1894 (Acts 1894, p. 95). Besides an act approved in 1897, the terms of which it is not necessary to consider here, an amending act approved December 20, 1898 (Acts 1898, p. 54), was passed, "so as to provide for the contents, direction and service of the notice contemplated by section 13 of said act, and by section 4669 of said Code [of 1895], when a telegraph company undertakes to condemn a portion of the right of way of a railroad for the purpose of constructing, maintaining and operating its telegraph lines along and upon such right of way," etc. By the terms of this act certain sections of the Code embodied in chapter 9 were in cases where telegraph companies should undertake to condemn the right of way of a railroad company for the purpose of constructing thereon telegraph lines. These changes refer, among other things, to the notice which the chapter required to be given, and declare that in such cases there need be but one condemnation proceeding against the same railroad company, and that, if the railroad company has a main or principal office in this state, the proceedings (for condemnation) shall be had in the county in which the main or principal office is located. They give to the assessors which were provided by the act of 1894 power to make their findings as to the damages on the testimony of witnesses, etc. By this amending act of 1898 no change was made in the provision of chapter 9 of the Code in relation to the condemnation of private property, except in proceedings instituted by a telegraph company to condemn the right of way of a railroad company; and, as amended, the act is general in its terms. The provisions incorporated by the act of 1898 became a part of the law in relation to the condemnation of private property, and was an addition to the law existing at the time of the passage of the act.

It is urged by counsel for the plaintiff in error that the act of 1898 is unconstitutional, because it makes no provision for the appointment of assessors, and to provide special machinery, in cases to which it is applicable, for enforcing the award made, and the conclusion is drawn that for these rea

sons the act does not provide just compensation to be paid to the owner of the property taken. This contention is not sound. The act of 1898 is not to be taken independently of and disconnected from the provisions of the act of 1894. The latter act, as amended by the act of 1898, in our opinion, meets every objection urged by counsel that the Georgia statutes relating to the condemnation of private property for public purposes are unconstitutional in that they lack due process of law. It is neither necessary nor proper to incorporate into an amending act the provisions of the act sought to be amended. When the Code provisions, as amended, are fairly construed, and the scheme of the existing law in relation to condemnation proeeedings is put into operation, It will be found that provision for creating a competent tribunal, invested with power to assess damages, has been made; that the award of this tribunal shall be made on evidence; that an appeal from the award to the superior court has been provided for; and, finally, that the method of enforcing it is declared to be by writ of execution. It is true that the Code designates the ordinary of the county where the land lies, or the franchise sought to be condemned is exercised, as the officer to select the arbitrator for the company, if it refuses to select one; and that the award, when made, is to be filed in the office of the clerk of the superior court of the county where the land lies, or the franchise sought to be condemned is exercised. It is further true that the amending act does not in direct terms change the provisions of the Code in these (and similar) particulars; but when the scheme of the amending act is considered, and the whole act is fairly construed, it is evidence that it was the intention of the legislature to designate the ordinary and office of the clerk of the superior court of the county where the proceedings to condemn were instituted as the officer to select the assessor and as the office in which the award shall be filed. So construed, effect is given to the amending act. The right of condemnation is preserved, and a system which will afford just compensation for property taken for public purposes is adopted, which in all respects affords to the owner of the land due process of law. By the construction we give to the act as a whole, no violence is done to the words which it contains. The original and amendatory acts, so construed, furnish a complete scheme for the condemnation of private property. Without It, the particular condemnation provided in the amending act must fail. Treating the latter as making an addition to the original act, regarding its purposes, and giving to the words which it contains their full signification, it must be evident that the legislative intent is expressed by such construction, and the uniformity of the plan of condemnation devised is preserved.

counsel for the plaintiff in error in support of the contention that the law under which the condemnation proceedings in the present case took place is unconstitutional is that in neither the act of 1894 nor the amendatory act of 1898 is any provision made for a hearing, preliminary to the condemnation, upon the question of the necessity of the seizure sought to be made, and it is argued at considerable length that this failure renders the law repugnant to the constitution of the United States and of the state of Georgia, in that it is a taking of private property without due process of law. Without going into the constitutionality of the law now under consideration, Fish, J., in the case of Savannah, F. & W. Ry. Co. v. Postal Tel. Cable Co., 112 Ga. 941, 38 S. E. 353, discussed exhaustively the question here made, and his reasoning in the case cited applies with irresistible force to the present case. We quote from the opinion on page 944, 112 Ga., and page 354, 38 S. E., as follows: "When the general assembly passed the act authorizing and empowering a telegraph company to condemn so much of the right of way of a railroad company as might be necessary for the purpose of erecting, maintaining, and operating its telegraph lines through and upon such right of way, and gave to the telegraph company the right, in one proceeding instituted in a single county, to condemn the right of way in any number of counties through which the same might extend, it passed upon the necessity of condemning such a right of way for such a purpose. When it, in effect, enacted that a telegraph company could, in one proceeding, condemn a strip of land extending through the entire length of a railroad right of way, it impliedly declared that it was necessary for the public good that a telegraph company should not be compelled to seek a route for the erection of its telegraph line other than through and upon the right of way of a railroad company. * Nor was it nec

essary for the telegraph company to show that the particular portion of the right of way specified in the notice was necessary for the telegraph company's use in constructing, maintaining, and operating its proposed telegraph line. When the right to condemn the right of way of the railway company was conferred upon the telegraph company, the power to select such portion and so much of the right of way as might be necessary for erecting, maintaining, and operating its telegraph lines was conferred upon it subject to the limitation that it could not select and condemn such portion of the right of way as would essentially injure or interfere with the public use to which the property was already devoted. It was not obliged to show there was an absolute necessity for it to take the particular strip of land described in its notice." In 1 Lewis, Em. Dom. §§ 162, 238, the rule is laid down that in cases where the

necessity for taking the particular land in question is one exclusively for the legislature; and in section 238 a quotation is made from the case of Boom Co. v. Patterson, 98 U. S. 406, 25 L. Ed. 206, where the following language is used: "When the use is public, the necessity or expediency of appropriating any particular property is not a subject of judicial cognizance. The property may be appropriated by an act of the legis lature, or the power of appropriating it may be delegated to private corporations, to be exercised by them in the execution of works in which the public is interested." See, also, the cases cited in the note to section 238 of 1 Lewis, Em. Dom., and the authorities reviewed by Mr. Justice Fish in the case of Savannah, F. & W. Ry. Co. v. Postal Tel. Cable Co., supra. Under the constitution of this state (Civ. Code, § 5729) private property cannot be taken for public purposes except in cases of necessity, and the laws authorizing the condemnation of private property and providing a means for its accomplishment permit the seizure of only so much property as may be necessary for the purposes authorized. See Civ. Code, § 4658, and Acts 1898, p. 54. When the legislature grants to a corporation the right to exercise the power of eminent domain, it alone, according to all authority, is the judge of the necessity for the exercise of the right. If the corporation should exceed the powers granted it, and take more land than is authorized, or if it should otherwise exceed the powers granted to it by the legislature, it would place itself without the pale of authority, and be amenable to a court of equity. As the necessity for the exercise of the power to condemn private property is passed on by the legislature, and as there is always open a tribunal to pass upon the lawfulness of the manner in which the right is exercised, it cannot be said that the law of Georgia, which authorizes the taking of private property for public purposes, does not provide "due process of law" in rendering such taking effectual.

3. The original notice of condemnation served by the telegraph company on the railroad company stated that the proposed line would be constructed "with poles about twenty-five feet in length, and one foot in diameter at the base, and planted at a depth of five feet in the ground, and about one hundred and sixty-seven feet apart on said right of way, making about thirty-one poles to the mile; and said poles will be situated about thirty feet from the center of the railroad track, which is located about the center of your right of way, being on an average of one hundred and fifty feet in width. Said poles will nowhere be planted upon any of the embankments of said railway company, nor will said wires be attached or fastened to any of the bridges or trestlework of said railway company." We fail to see how, under the circumstances, a more

definite description could be given as to the location of the proposed line. The railroad company, however, demurred to the notice, and the telegraph company amended, by inserting at a suitable point in the description of the proposed location of its line the words: "Or at such other distance from the tracks as may be preferred and designated by your company, not nearer the outer edge of the right of way than six feet." It needs no argument to show that the amendment, offering as it did to allow the railroad company to select the line which should be followed, even had it been indefinite, was not one of which the railroad company can justly complain. The amendment was germane, and properly allowed.

4. It is provided by section 4679 of the Civil Code that the entering of an appeal and the proceedings thereon in condemnation cases "shall not hinder or delay in any way the work or the progress thereon, if the applicant to condemn shall pay or tender to the owner the amount of the award, and in case of the refusal of the owner to accept the same, deposit the amount awarded with the clerk of the superior court for the benefit of the owner." It appears that in the present case the telegraph company appealed from the award of the assessors, depositing with the clerk of Chatham superior court the sum of $6,000 (the amount of the award), and proceeded with the work of erecting the line. It is contended by the railway company that this was not a compliance with the law upon the subject, because the Code section above quoted had no reference to telegraph companies condemning the right of way of railroad companies; and that, even if section 4679 is applicable to such a case, the words "clerk of the superior court," therein used, are applicable to the clerk of the superior court of the county where the land lies which is sought to be condemned, and consequently a single deposit in the county where the proceedings were had is not sufficient to meet the requirements of the law. We do not think that there is any merit in this contention. It is true that section 4679 of the Civil Code, as originally enacted, had reference to appeals in condemnation proceedings brought in the county where the land sought to be condemned was located. But the act of 1898, as we have before said, made provision, in a case where a telegraph company sought to condemn portions of the right of way of a railroad company, for the condemnation proceedings to be had in a single county. We know of no good reason why this method should not be effectual in protecting the landowners. The law in regard to appeals was left unchanged. and, reading section 4679 of the Civil Code as amended by the act of 1898, and giving the words "clerk of the superior court" that meaning which is most consonant with the evident legislative intent, it is clear that, in order to enable the telegraph company to

proceed with its work pending the appeal, it is only necessary for it, after the refusal of the railroad company to accept its tender of the amount of the award, to deposit that amount in the office of the clerk of the superior court of the county where the condemnation proceedings were had.

In the elaborate brief filed by the able counsel for the plaintiff in error many points are presented which are to a large extent reiterations of those disposed of in the foregoing discussion. We have gone carefully and laboriously over the voluminous record and the briefs of counsel on each side of the case, and have reached the conclusion that the court below did not err, for any reasons assigned in the bill of exceptions. in granting the injunction which is the subject-matter of review.

Judgment affirmed. All the justices concurring, except LEWIS, J., absent on account of sickness.

(115 Ga. 510)

COLEMAN & BURDEN CO. v. RICE. (Supreme Court of Georgia. June 6, 1902.)

ASSIGNMENT FOR BENEFIT OF CREDITORSRESERVATIONS-VALIDITY-SALE UNDER POWER-RIGHTS OF PURCHASERS.

1. The provisions of sectious 2710 and 2711 of the Civil Code, which provide that no assigument shall be set aside except in a direct proceeding for that purpose, to which the assignee and assignor shall be parties, refer to such assignments as are made under Act 1894, the law relating to which is codified in section 2698 et seq. of the Civil Code.

2. An assigument or transfer by a debtor, insolvent at the time, of any kind or character of property, when any trust or benefit is reserved to the assignor, is fraudulent and void. Civ. Code, § 2695 (1). Being void, such transfer or assignment may be attacked, by a party interested, in either a direct or collateral legal proceeding, when it is sought to be set up.

3. If an assignment or transfer of this character is made to a named trustee, with power of sale, an execution of the power conveys no title to a purchaser, and a deed purporting to convey to him any part of the property so transferred is likewise void.

4. If, however the purchaser at such attempted sale, at the time of the transfer, held a valid lien by mortgage on the property he sought to purchase, and neither before nor after such sale gave up, relinquished, or canceled his lien or agreed or intended to do so, there was no merger of the lien with the title sought to be conveyed, but the same remained intact and capable of enforcement.

Aliter,

if he did, as a consequence of his purchase, cancel and relinquish his lien, or if he intended to do so. Woodside v. Lippold, 39 S. E. 400, 113 Ga. 877, and cases cited.

5. As such lien created no title, it was, under the pleadings and agreed statement of facts in this case, error to rule that the property was not subject to the execution of a creditor whose judgment was junior to the lien of the mortgage; but the court should, under the pleadings and the facts which appear in the record. have entered a decree, establishing and enforcing the lien of the mortgage against the property which it described, superior in dignity to the judgment of the plaintiff in fi. fa. (Syllabus by the Court.)

JUDGMENT 1

COLLATERAL ATTACK - BANKRUPTCY-RECEIVERS-DELIVERY OF ASSETS TO TRUSTEE.

1. Whether a court of the United States having jurisdiction in bankruptcy has or has not authority, under the bankrupt law, to adjudge that a partnership which has been dissolved by the death of one of the partners, and whose assets are in the hands of a surviving partner, is a bankrupt, cannot be collaterally raised in a court of this state, when such an adjudication has in fact been made, but that adjudication will be duly respected by the courts of this state.

2. In such a case it is not erroneous for a superior court, which had within four months prior to the adjudication in bankruptcy appointed a receiver to take charge of and administer the assets of such partnership, to grant an application that the receiver deliver those assets to the trustee in bankruptcy.

3. Such court, however, may, and should first, charge the assets so to be delivered with the payment of the costs and expenses incurred in bringing the same into the state court, before requiring the delivery to be made to the trustee.

(Syllabus by the Court.)

Error from superior court, Clarke county; R. B. Russell, Judge.

Proceedings between H. R. Wilson, administrator, and others and F. L. Parr and others. From the judgment rendered, Parr and others bring error. Affirmed.

Strickland & Green, for plaintiffs in error. 8. C. Upson and Sol Flatan, for defendants in error.

LITTLE, J. By an order duly granted by Judge William T. Newman, presiding in the United States district court for the Northern district of Georgia, in the matter of Parr & Wilson, bankrupts, leave was granted to the Van Camp Packing Company, Gilpin, Langdon & Co., and the Empire Liquor Company, to proceed in the state court in the name and for the use of the trustee in bankruptcy, by a proper petition, to have the said state court grant an order directing its receiver, West, to turn over to the trustee in bankruptcy all the assets, property, money, and effects belong. ing to the estate of Parr & Wilson, bankrupts, in accordance with said leave given, the parties referred to filed a petition in the superior