ON MOTION ROE REHEARING.
Jenkins, Justice.The State Highway Department seeks a rehearing on two grounds: (1) That this court overlooked provisions in the condemnation statutes, and particularly Code §§ 36-1106, 36-1115, in holding that if the Highway Department was proceeding under an unconstitutional law, the remedy of the present petitioner as a defendant in the condemnation proceeding not being adequate and complete, the petition for injunction would lie. (2) That this court overlooked averments in the petition; that the Highway Department was proceeding, not under any invalid law, but under the condemnation statutes, Code, §§ 36-1104 et seq.; that the general act of March 29, 1937 (Ga. L. 1937, p. 1081), as to municipal streets or parts of streets becoming part of the State-aid system of roads, authorized the State Highway Department to condemn land in municipalities; that “under the terms and provisions of section 36-1104 of the Code . . the conclusion is inevitable that the State Highway Department could have, in the condemnation proceedings in question, been proceeding under such law;” that the court overlooked the holding in Dennison v. Wright, 156 Ga. 797 (supra), although it cited the case, that “an unconstitutional statute . . is in reality not law — it is wholly void;” and overlooked the effect of the decision in Wellborn v. Estes, 70 Ga. 390, that proceedings under an unconstitutional statute, had before the statute is judicially declared to be unconstitutional, are void; and overlooked the fact that the Highway Department, being conclusively presumed to know the law, was conclusively presumed to have known that the “Broad Street Extension” act was unconstitutional and void, and therefore must be conclusively presumed to have been proceeding in the condemnation case under a valid general law, and not under an invalid special law.
As to the first of these contentions, reference to the division 3 of the original opinion shows that the general condemnation statutes and the authorities contained in the supporting briefs were considered and discussed, together with additional cases, upon a full consideration of all of which the conclusions stated in the original decision were reached.
*216As to the second contention, relating to paragraphs 8-a and 1) of the decision, that the present injunction petition shows that the Highway Department was proceeding legally, a reference to the pleading fails to support this contention. Paragraph 7 of the present petition quoted in full the invalid “Broad Street Extension” act. Paragraph 8 then alleged: “The Highway Department of Georgia, acting, or claiming to act, under and by virtue of the provisions of the act of the General Assembly above set out, did . . file in this court a proceeding in rein, seeking to condemn a right of way for said so-called “Broad Street Extension” provided for in said act. Paragraph 11 stated: “Said condemnation proceeding, which was instituted as aforesaid and which is pending, was brought, as stated in the petition, under the provision of the Code of Georgia of 1933, sections 36-1104 et seq.” Paragrap 15 alleged: “The defendants, as hereinbefore stated, are seeking and purporting to proceed in their effort to condemn petitioner’s property above described . . • by virtue of the provisions of said act approved March 22, 1937, set out in paragraph 7 above; and inasmuch as said act is unconstitutional and void, said defendants are acting in said matter without legal authority.”
The general condemnation statute (Code, § 36-1104), merely provides for procedure by petition, “whenever the State . . shall desire to take or damage private property m pursuance of any law so authorizing.” When the Highway Department thus proceeded, it must therefore have done so by virtue of authority conferred by some other general law or some valid act relating to the particular project. While it must be presumed, in the absence of a contrary showing, that the Highway Department and board, like all other officers, know the law and have done their legal duty, such a presumption can not prevail over specific averments otherwise, where, as in this case, it was alleged, not merely that the Highway Department filed the condemnation proceeding under the general condemnation statutes, but that, in following such procedure they were “acting or claiming to act under and by virtue” of the law which this court in the original decision held unconstitutional, and “are seeking and purporting to proceed in their effort to condemn petitioner’s property . . by virtue of such act,” and “inasmuch as said act is unconstitutional and void, said defendants are acting in said matter without legal authority.” The averments them*217selves in the condemnation proceeding not being in the record, it must be assumed on demurrer that these clear and direct allegations oJE the injunction petition as to the action of the Highway Department “under and by virtue” of the invalid act are correct. Accordingly, no question arises or is determined, either on this motion or in the original decision, as to what would have been the effect if the Highway Department had actually proceeded, as contended, under the act of March 29, 1937 (Ga. L. 1937, p. 1081), providing as to how streets of municipalities may be made a part of the State-aid system of roads, or whether that act or some other law would have authorized the procedure taken.
Rehearing denied.