O.C.G.A. § 22-1-3 (2019)
Power of General Assembly to determine when right of eminent domain may be exercised; duty of courts as to laws authorizing the condemnation of private property for private uses
It is the province of the General Assembly to determine when the right of eminent domain may be exercised. If, however, under pretext of such necessity the General Assembly should pass a law authorizing the taking of property for private use rather than for public use, the courts should declare the law inoperative.
History
Orig. Code 1863, § 2202; Code 1868, § 2197; Code 1873, § 2223; Code 1882, § 2223; Civil Code 1895,
§ 3053; Civil Code 1910, § 3625; Code 1933, § 36-102.
Annotations
JUDICIAL DECISIONS Taking property for public use is legislative, not judicial, function. - The necessity or expediency of appropriating particular property for public use is not a matter of judicial cognizance, but one for the determination of the legislative branch of the government, and this must obviously be so when the state takes for the state’s own purposes. State Hwy. Dep’t v. Smith, 219 Ga. 800, 136 S.E.2d 334 (1964). Legislature has exercised jurisdiction granted by section. - In the exercise of the jurisdiction granted by this section, the legislature passed acts which are embodied in former Code 1933, § 36-102 (see O.C.G.A. § 22-1-3) as former Code 1933, §§ 36-801 and 85-1306 (see O.C.G.A. §§ 44-8-4 and 22-3-20).
Central Ga. Power Co. v. Ham, 139 Ga. 569, 77 S.E. 396 (1913). Notice to owner not required before determination of necessity. - Since the necessity for taking private property for a public use is a legislative and not a judicial function, due process does not require notice to the owner nor an opportunity to be heard before such determination can be made. State Hwy. Dep’t v. Smith, 219 Ga. 800, 136 S.E.2d 334 (1964). Cited in Williamson v. Housing Auth., 186 Ga. 673, 199 S.E. 43 (1938); Russell v. Venable, 216 Ga. 137, 115 S.E.2d 103 (1960); Norton Realty & Loan Co. v. Board of Educ., 129 Ga. App. 668, 200 S.E.2d 461 (1973); DOT v. City of Atlanta, 255 Ga. 124, 337 S.E.2d 327 (1985).
RESEARCH REFERENCES Am. Jur. 2d. - 26 Am. Jur. 2d, Eminent Domain, §§ 5, 23 et seq. C.J.S. - 29A C.J.S., Eminent Domain, §§ 1 et seq., 23 et seq. ALR. - Exercise of eminent domain to control the use or improvement of property not taken, 23 A.L.R. 876.
Right of abutting owner to compensation for interference with access by bridge or other structure in public street or highway, 45 A.L.R. 534. Constitutionality of statute conferring power of eminent domain on private corporation or association for educational,
religious, or recreational purpose, 50 A.L.R. 1530. Public benefit or convenience as distinguished from use by the public as ground for the exercise of the power of eminent domain, 54 A.L.R. 7. Power to condemn, or authorize the condemnation of, capital stock of a public utility, 81 A.L.R. 1071. Diversion of park property to other uses
as taking or damaging neighboring property without compensation, 83 A.L.R. 1435. Injunction against exercise of power of eminent domain, 133 A.L.R. 11; 93 A.L.R.2d 465. Eminent domain: possibility of overcoming specific obstacles to contemplated use as element in determining existence of necessary public use, 22 A.L.R.4th 840.