Sparta, Sandersville Railroad, and Georgia’s Eminent Domain Laws

“The supreme power cannot take from any man any part of his property without his own consent: for the preservation of property being the end of government, and that for which men enter into society, it necessarily supposes and requires, that the people should have property, without which they must be supposed to lose that, by entering into society, which was the end for which they entered into it; too gross an absurdity for any man to own. Men therefore in society having property, they have such a right to the goods, which by the law of the community are their’s, that no body hath a right to take their substance or any part of it from them, without their own consent: without this they have no property at all; for I have truly no property in that, which another can by right take from me, when he pleases, against my consent. Hence it is a mistake to think, that the supreme or legislative power of any commonwealth, can do what it will, and dispose of the estates of the subject arbitrarily, or take any part of them at pleasure.”

John Locke, Second Treatise of Government

The right to one’s own property has been vital to the fabric of this country throughout its history, so much so that part of the American Dream is home ownership even today. After the Civil War, African Americans finally had the opportunity to own property in Georgia, and in Hancock County, several families bought farmland outside of the city of Sparta that has continuously passed down through the generations. Some of the family members still farm, whereas others have broken parcels up amongst siblings and children.

One of the downsides of those small farm plots from the state’s perspective was they weren’t the moneymakers the plantations of the pre-war era had been, which plummeted Hancock County from its position as the richest county in the 1850s to one of the poorest in the state still today. Growing up, long before becoming a resident of Hancock County myself, every story I ever heard about Sparta dealt with how depressed and run-down it was. Even prior to buying my house in 2021, I was strongly discouraged from moving to Sparta because I was told taxes were high, services were nonexistent, and everyone was destitute. (I have a detailed opinion about how thankful I am to be here as opposed to my previous county of residence, but that’s a story for another day.)

Sparta is indeed economically depressed compared to other parts of the state. There are many reasons for that with a host of culprits, and more than once, the area has fallen victim to those promising economic development that never lived up to the hype, though they gained personally. It feels very much like this is happening again today.

Let’s return to those African American families who have owned land in Hancock County since the 1800s, specifically the Smiths and Garrets. Sandersville Railroad is trying to build a train track through their property, and the company wants to use eminent domain to do it because the families don’t have any interest in selling. In order to force the families’ hands, the railroad will need the permission of the Public Service Commission (PSC), which is currently hearing the case. Jeff Amy of the Associated Press had a great overview of this issue earlier in the week. Essentially, the families have balked at every offer from the railroad, so now the railroad wants to make them sell because it wants to be able to ship more granite for all of the road construction projects that Joe Biden created with his Infrastructure Investment and Jobs Act. Cutting up the Smiths and Garrets’ farms will allow Sandersville Railroad direct access to the Hanson Quarry, which means they can ship more granite more quickly.

A Supreme Court case from 2005, Kelo v. City of New London, opened the door for states to use private economic development as a reason to use eminent domain to transfer ownership. This decision upset the folks in the Georgia state legislature quite a bit, and they promptly dedicated much of their 2006 session to amending Georgia’s eminent domain law to protect private property owners from the Kelo decision. Ultimately, they settled on requiring that land would only be taken “on account of public exigency and for the public good.”

The state legislature thought there should be a very high bar for confiscating private property, so much so that senate formed a working group on the topic and issued a report with some very pointed language regarding the Kelo decision:

Although private property rights have long been an important foundation of this Republic, the Kelo decision exposed weaknesses in the protection of private property owners against government condemnation of private property. The weakness turns on the taking of private property when such taking is veiled under the guise of a public purpose when, in fact, the public purpose is derived from the intent to increase the local tax base. Private property ownership should not be undermined to the extent that a government may take property through the power of eminent domain and then convey that property to another private owner for the purpose of economic development. The Kelo decision has now clearly opened the door for governments to utilize economic development as a rationale for eminent domain takings provided that such takings adhere to an overall integrated development plan.

The Kelo Court simply got it wrong. The good citizens of the State of Connecticut deserved better treatment under the law, and private property owners in the State of Georgia should receive the expected and necessary protection from this elected body.

Final Report of the Senate Eminent Domain and Economic Development Study Committee, 2005

To really drive the point home, the state senate passed a Landowner’s Bill of Rights in 2006 and then further placed a constitutional amendment on the ballot in November. Amendment 1 read, “Shall the Constitution of Georgia be amended so as to prohibit the use of eminent domain by certain nonelected authorities and to prohibit the contested use of eminent domain except for public use as defined by general law?” It was supported by 83% of voters.

However, the trick to “public use” is that railroads have special status under Title 22 of the Georgia Code because though they are privately owned, they serve a public purpose. Still, even though they have a public use, railroads — just like government entities — have to prove a purpose other than economic development to use eminent domain per Georgia law. So, what is Sandersville Railroad saying is the public benefit to this project that requires confiscating private land?

Twelve permanent jobs and a promise that other companies can use the track if they need it.

Frankly, as a resident of Sparta, I’m offended that Sandersville Railroad thinks we’re so hard up for employment that this would to rise to the level of something for which it’s worth using eminent domain. It’s absolutely not, and it’s very hard to believe that anything other than private gain for the company is at the center of it.

Twelve jobs to take someone’s family land. Y’all, I can’t.

As the PSC decides whether or not to support Sandersville Railroad’s petition to be granted eminent domain, I would hope they would consider the legislative intent of the 2006 Georgia legislature and the will of the voters who amended the state constitution that year. However, I’m not naive, and I realize that the Republicans who controlled Georgia in 2006 are not like the Republicans who control Georgia in 2023. In 2006, individual rights were clearly prized, but now it often feels like we’re being nanny-stated from the conservative viewpoint. Take the Cato Institute’s annual ranking of Most Free States. Georgia ranks fifth economically, but an abysmal 38th when it comes to personal freedoms. Personal freedom is personal, obviously, but economic freedom is about businesses, meaning businesses are prized in a way people are not. The current iteration of the PSC is no exception, as I don’t believe they’ve met a utility rate increase they didn’t love.

Sandersville Railroad is well aware of the PSC’s “pro-business” proclivities as well. Since 2018, executives for the company have donated nearly $12,000 to three of the five current board members’ campaigns, and an additional $6,000 if one includes Chuck Eaton, who left the board once appointed by Governor Kemp as a superior court judge. To be fair to Bubba McDonald, he only received one donation and he’s the most independent thinker of the group, but it’s a low bar. And please make no mistake, it’s perfectly legal for Sandersville Railroad employees (including the board members) to donate to political campaigns per our current laws, and the family that owns the railroad has long donated to Republican candidates. However, there wasn’t much in the way of PSC donations prior to 2018 ($2000 over the previous 10 years), which is worth noticing because it means they’re well aware that they’re exerting influence over members of the board in a manner in which the Smiths and Garrets cannot afford.

I don’t know how this case will end. I do know that the Smiths and Garrets enjoy wide community support in Hancock County, including mine. However, Jeff Amy notes in his article that if the outcome of the PSC’s hearing favors Sandersville Railroad, it will have an effect on other private companies that provide public services, like utility providers, so this could well shift the intent of the law without changing a word of it. Even if you don’t care about a couple of family farms in Hancock County, this should cause the hairs on your arm to tingle.