Perkerson v. State Highway Board , 56 Ga. App. 316 ( 1937 )

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 against the State Highway Board, and said it was the only way. Irrespective of the contention, that in some instances this might be violative of the constitutional provision above referred to, we adhere to our ruling that the act of 1935, together with the constitutional provision quoted, subjects the Highway Department to suits of this character.