180 Ga. 112 | Ga. | 1935
The question here propounded is restricted to the sole consideration of whether the State Highway Department of Georgia is subject to a suit for damages, brought by an employee of a bridge contractor, injured by the collapse of the structure in process of completion, by reason of improper and defective material used in the construction of the bridge and the negligent construction thereof, the engineer having the structure in charge representing the State Highway Department, having knowledge of the defects and the negligence, and failing to warn the person injured. The precise question has not heretofore been decided by this court. A number of cases have been decided in which the State Highway Department was a party, but this question was not raised. They were based upon different facts, and sought entirely different relief. The Code of 1933 provides: “The State Highway Department of Georgia is hereby reorganized and reconstituted as hereinafter provided, and said Department shall at once succeed, without interruption, to the duties and powers of the former State Highway Department, not in conflict with chapters 95-15 to 95-17, and shall have full power and control in the performance and doing of all the things provided for in this law.” § 95-1501. “Each distributor of fuels and kerosene engaged in such business in this State shall, on or before the 30th of each month, pay to the comptroller-general the occupation tax of six cents per gallon on fuels and one cent per gallon on kerosene, on all fuels and kerosene sold or used during the immediately preceding calendar month.” § 93-1407. “All moneys collected under the provisions of this chapter shall be paid into the State treasury. The comptroller-general is hereby authorized to appoint a clerk who shall collect the tax provided for in this chapter,” etc. § 93-1409. Section 93-1411 provides for disbursement of the State-aid road fund monthly upon warrants drawn by the Governor upon itemized statements showing all expenses of any kind whatsoever. Thus we see that the powers and duties of the State Highway Department are clearly stated in the statute, as is the source from which the funds for road purposes are derived, the payment to the comptroller-general, payment by the latter into the State treasury, and the manner of disbursement. In addition, the State is obligated to comply with the Federal statutes under which funds are appropriated by the Federal government to the State of Georgia. Code of 1933, § 95-1503. The provision of that section
''Every county is a body corporate, with power to sue or he sued in any court.” Code of 1933, § 23-1501. “A county is not liable to suit for any cause of action unless made so by statute.” § 23-1502. This court held, in Hammond v. County of Richmond, 72 Ga. 188, that ''The county is not responsible in damages for the tort of one of the guards, in unlawfully beating a convict in the chain-gang, nor for the negligence of the rest of the guards in not
The immunity from suit in the case of counties is based upon the fundamental principle that they are subdivisions of the sovereign State; and that since the sovereign State can not be sued without its consent, a county can not be sued without the consent of its, creator, the State. Likewise, the State Highway Department is a part of the sovereign State, an agent or servant of the State, and it can not be sued without the express consent of the sovereign. We think that there can be no doubt that the acts of the State Highway Department are the acts of the State of Georgia. The State, in the construction and maintenance of highways through the State
The Code (1933), § 95-1710, provides as follows: “The State Highway Department shall defend all suits and be responsible for all damages awarded against any county under existing laws (italics ours), whenever the cause of action originates on highways, jurisdiction over which shall have been assumed by said Highway Department under the terms of this law. Any county sued may vouch said Highway Department to defend such litigation, by furnishing said Highway Department with a notice to defend such suit, to which said notice shall be attached a copy of the petition served on said county. Said notice shall be given to the State Highway Department at least 10 days prior to the return day of the teTm at which said suit must be answered. The State Highway Department shall have the right and authority to adjust and settle in the name of such county and on its own behalf any claim for damages for which the State Highway Department may be ultimately liable under the terms of this section.” This section, however, does not authorize a suit to be brought directly against the State Highway Department. It merely provides that in suits against counties the State Highway Department may be vouched in the manner provided in the statute. The right, under section 95-1505, to “make settlement of all claims ¡jresented to it under oath,” certainly does not include the right to sue the State Highway Department for damages for personal injuries, due to negligence of its engineers. It rather refers to such matters as are expressly provided in section 95-1710. It refers to claims for damages against a county, and these claims must have originated under laws existing when the highway is taken over as a State-aid road by the State Highway Department, and where the State Highway