Opinion
53281.
ARGUED JANUARY 7, 1977.
DECIDED JANUARY 18, 1977. REHEARING DENIED FEBRUARY 8, 1977.
Action on contract. Fulton Superior Court. Before Judge Etheridge.
Elliott Turner, Tyron Elliott, for appellant.
Arthur K. Bolton, Attorney General, Melvin M. Goldstein, Staff Assistant Attorney General, for appellee.
The appellant, as plaintiff, brought suit against the appellee, a state agency, for breach of contract. The appellee answered and moved to dismiss the complaint for failure to state a claim, raising the doctrine of sovereign immunity. The trial court granted the motion to dismiss and the plaintiff appeals.
ARGUED JANUARY 7, 1977 — DECIDED JANUARY 18, 1977 — REHEARING DENIED FEBRUARY 8, 1977 — CERT. APPLIED FOR.
1. The doctrine of sovereign immunity means no more than that a suit cannot be maintained against the state without its consent. Koehler v. Massell, 229 Ga. 359, 361 ( 191 S.E.2d 830). The doctrine is as applicable to actions ex contractu as it is to actions ex delicto. Georgia Military Institute v. Simpson, 31 Ga. 273, 277; Crowder v. Dept. of State Parks, 228 Ga. 436, 440 ( 185 S.E.2d 908). How is the state's "consent" to suit determined? "The State can not be sued in any event without its express consent." Roberts v. Barwick, 187 Ga. 691 (1) ( 1 S.E.2d 713). (Emphasis supplied.) Eibel v. Forrester, 194 Ga. 439 ( 22 S.E.2d 96); National Distributing Co. v. Oxford, 103 Ga. App. 72 ( 118 S.E.2d 274).
The fly in this judicial ointment is Regents of the University System v. Blanton, 49 Ga. App. 602 (1) ( 176 S.E. 673): "A State, or any of its departments entering into contracts, lays aside its attributes of sovereignty, and binds itself substantially as one of its citizens does when he enters into a contract, and, in general, its contracts are interpreted as the contracts of individuals are, and are controlled by the same laws." This theory, that by merely entering into a contract the state "impliedly" consents to suits against itself thereon, is in direct opposition to the theory that "`whoever contracts with the State trusts to the good faith of the State, unless the State sees fit to disrobe itself of its sovereignty.' .. a very simple and brief enactment of the legislature giving this consent is all that is required to permit a suit against the State." Roberts v. Barwick, 187 Ga. 691, 694, supra.
Some light has been shed on the Blanton opinion and its theory of "implied" consent or waiver of immunity in Busbee v. University Professors, 235 Ga. 752 ( 221 S.E.2d 437); therein the Supreme Court affirmed the correctness of the decision in Blanton, that the Regents are amenable to suits ex contractu, but based its conclusion not on the Blanton theory of "implied" consent but rather on an "express legislative waiver of sovereign immunity." Thus no matter whether we view the decision in Blanton as "too narrow" in failing to consider the legislative import of Ga. L. 1785, p. 560, or too broad in giving sanction to a theory of "implied" consent, the Blanton decision now stands solely for the result it reached and not for legal theory employed in so doing.
At the time Blanton was decided the Regents were amenable to suit because there was an express legislative waiver of the Regents' sovereign immunity ( Busbee v. University Professors, 235 Ga. 752, 758, supra); the present immunity of the Regents is established by Ga. L. 1976, p. 452. After the decision in Busbee (and perhaps even before — see State Hwy. Dept. v. W. L. Cobb Const. Co., 111 Ga. App. 822, 825 ( 143 S.E.2d 500)) the theory of "implied" consent by the state to suits ex contractu is no longer viable; there must be an express consent to the action or express legislative waiver of sovereign immunity to maintain a suit against the state. This is apparently the opinion of the entire Supreme Court, the two dissenters in Busbee disagreeing with the majority only as to whether there had in fact been an express waiver.
2. The appellee is a state agency. There being no express legislative waiver of the appellee's sovereign immunity from suit, the trial court's order granting the motion to dismiss is affirmed.
Judgment affirmed. Webb and Marshall, JJ., concur.