56 Ga. App. 316 | Ga. Ct. App. | 1937
Lead Opinion
This is the second appearance of this cause of action in this court. See Perkerson v. Greenville, 51 Ga. App. 240 (180 S. E. 22). In that proceeding Perkerson filed suit against the City of Greenville, for resultant damage to his property by reason of a change of grade in front of his property in the City of Greenville, whereby ingress and egress were either cut off or made more difficult. On the trial it appeared that this street on which the change occurred was a part of the State-aid road system, and that the change had been made by the State Highway Department and under its direction and control. The lower court granted a nonsuit, and this ruling was sustained for the reason, as stated by this court, that “the State Highway Board, on its own initiative or acting through a county, has the legal right to extend and improve a f State-aid’ road through the streets of a municipality without the consent of the municipality and even against its will.” This suit, based on the same cause of action, was thereafter filed against the State Highway Board in Cobb County, the residence of one of the members of the State Highway Board. On the trial it developed that while the work was done under the direction and control of the State Highway Department, the actual performance of the work was clone by the county chain-gang of Meriwether County under a contract with the State Highway Department. A motion for nonsuit was sustained on the ground that the situs of the suit, under these facts, was in Meriwether County. No member of the State Highway Board was a resident of Meriwether County; and it becomes pertinent to inquire whether the fact that Meriwether County, because it performed the actual work, as contractor, for the State Highway Board became liable because of the resultant damage to property by reason of the work done; and if so, is it necessary that any suit brought to recover for such damage (which arises by reason of the constitutional provision that private property may not be taken or damaged for public use without just compensation being paid therefor) should be brought solely against Meriwether County under the act of 1919, wherein it is provided that the county may protect itself from liability by vouching the State Highway Department in to defend the suit? There can be little doubt that where the county, as in the present case, actually takes or damages private property in the building of a State-aid road,
In Lincoln County v. Gazzaway, 43 Ga. App. 358 (158 S. E. 647), this court held that the act of 1925 (Ga. L. 1925, pp. 208, 211; Code, § 95-1505), which provided that the State Highway Department could sue and be sued generally, did “not operate to repeal or invalidate a proceeding of the particular nature and character authorized by the act of 1919, instituted in accordance with the particular method prescribed therein.” This decision was followed in Page v. Washington County, 48 Ga. App. 791 (173 S. E. 868). It will be noted that under the act of 1919, “the State Highway Board, acting for and in behalf of the State, is hereby authorized and empowered to sue and be sued, as herein-before provided, and not otherwise, to exercise the right of eminent domain in the condemnation of rights of way and property thereon for the use of the system of State Highways.” The State Highway Department is a division of the sovereign State, created for a particular purpose, and under the provisions of the act of 1919 it could not be sued except as provided therein, and that was by suing the county and allowing the county to vouch in the highway department to defend the action. The restriction in reference to suit contained in the act of 1919, “to sue and be sued as herein-before provided, and not otherwise,” was enlarged by the- simple
In Habersham County v. Cornwall, 38 Ga. App. 419 (144 S. E. 55), Bell, J., in holding the county not liable for the damages sought in that case said: “Whether he may recover thereon against the State Highway Department we do not undertake to say at this time.55 In State Highway Board v. Ward, 42 Ga. App. 220 (155 S. E. 384), this court held: “It is obvious that the above-stated constitutional provision applies where private property is taken or damaged for public use by the State Highway Board without just compensation being first paid. In such a case a right of action arises in favor of the owner of the property, which may be enforced by suit against the State Highway Board." In Felton v. Macon County, 43 Ga. App. 651 (159 S. E. 730), it was held that where the plaintiff proceeded against the county under the act of 1919, “and there was no prayer for process against any other person,55 the provision that claims against the
In Tounsel v. State Highway Department, 180 Ga. 112, 118 (178 S. E. 285), the Supreme Court held in effect that the State Highway Board, even under the provisions of the act of 1925, supra, was liable only under such existing laws as would have made the county liable. A county, or the State Highway Board, is liable under the constitutional provision prohibiting the taking or damaging of private property for public use without just compensation. Neither the county nor the State Highway Board is liable for torts as those described in the Tounsel case. Irrespective of whether Meriwether County might in this case have been liable to the plaintiff for resultant damage because it participated in the construction of the change of grade of the street, the liability of the State Highway Board continued, and the plaintiff was not
Judgment reversed.
Rehearing
ON MOTION FOR REHEARING.
It is insisted that our decision is contrary to that in the Tounsel case. In its final analysis the Tounsel decision merely held that the Highway Department might not be sued “for damages for personal injuries due to the negligence of its engineer. Neither can a county be sued for such injuries. The constitutional provision that private property may not be taken or damaged for public use without adequate and just compensation is broad enough and comprehensive enough to protect the rights of citizens even as against the State itself or any of its political subdivisions. While it is true that the State is never suable except by express enactment, and this is also true of subdivisions of the State, yet the constitution contains the express enactments as to suits of this character, and needs no statute to breathe into it the “breath of life.” The State itself is limited by the provisions, and can not take private property for public use without adequate compensation. To allow the State or any of its political subdivisions to take or damage private property, and then to deny the right to sue therefor in the courts, is to “keep the word of promise to his ear and break it to his hope.” The act of 1919 provided for suits