185 Ga. 610 | Ga. | 1938
The question propounded by the Court of Appeals relates to liability of a county for taking and damaging private property, caused by acts of the State Highway Board; not to liability of the county for damages caused by its individual wrong. The "taking and damaging” xefer to taking and damaging property for public purposes. The language is broader "than injury to person or property caused by reason of defects in a public bridge, and does not bring the case within the statute embodied in the Code, § 95-1001, which provides that counties “shall be primarily liable for all injuries caused by reason of any defective bridges, whether erected by' contractors or county authorities.” That statute has no application to the question propounded. The provision of article 1, section 3, paragraph 1, of the constitution (Code of 1933, § 2-301), that “private property shall not be taken, or damaged, for public purposes, without just and adequate compensation being first paid,” is applicable. A county in virtue of being a subdivision of the sovereign State “is not liable to suit for any cause of action unless made so by statute.” Code, § 23-1502. Eor similar reason the State Highway Board is not so liable unless made so by law. Tounsel v. State Highway Department, 180 Ga. 112 (supra). But, construing together the above provisions of the constitution and the Code, a right of action is afforded against a county for damage to private property for public uses or taking private property for public iises. Smith v. Floyd County, 85 Ga. 420 (2) (11 S. E. 850); Millwood v. DeKalb County, 106 Ga. 743, 747 (32 S. E. 577); State Highway Board v. Baxter, 167 Ga. 124 (2) (144 S. E. 796); Floyd County v. Fincher, 169 Ga. 460 (150
For like reason the State Highway Board, a subordinate branch of the State’s sovereignty with the power of eminent domain (Code, § 95-1724), is also liable for damages resulting to another person for taking or damaging his property for public purposes. This principle was adverted to in Tounsel v. State Highway Department, 180 Ga. 112, 116 (supra), a case under the Code, § 95-1001, for damage resulting from a defective bridge. It has been said substantially that the State Highway Department “co-operating” with the county authorities can build a State-aid road through a town “without its consent and against its will.” Lee County v. Smithville, 154 Ga. 550, 560 (supra). So in the case of a State-aid road a county and the State Highway Board are both liable for damaging or taking private property for public uses, whether or not the property taken or damaged was part of a street in a town or city, which had been designated by the State Highway Board as a State-aid road. In section 1 of article 5 of the act of 1919 (Ga. L. 1919, p. 242) it is made the duty of the State Highway Department of Georgia “to designate, improve, supervise, construct and maintain a system of State-aid roads.” It is provided “that no road shall become a part of said system until the same shall be so designated by the State Highway Board by written notice to the county road authorities concerned.” In provision 5 of section 2 of article 5 of said act it is declared: “That when any portion of the designated State-aid road system is taken under the jurisdiction of the State Highway Department by written notice as prescribed in article 5, section 1, hereof, the county or counties in which said portion is located shall not thereafter be required to levy taxes for the construction or maintenance of said portion, or to use any of its funds or road forces in the construction or maintenance thereof; provided that the State Highway Department shall defend all suits and be responsible for all damages awarded against any county under existing laws, and whenever the cause of action originates on highways jurisdiction over which shall have been assumed by said Highway Department under the terms of this act; and provided that any
Answered in the affirmative.