DISSENTING OPINION
By BRYANT, PJ.While I concur with the decision of the majority of the court in affirming the judgment of the court below dismissing the James McHugh Construction Company and S. G. Loewendick, d. b. a. S. G. Loewendick & Sons, I must respectfully dissent from their decision holding the Board of Trustees of the Franklin County Veterans Memorial subject to liability. It seems to me that no useful purpose is served by a comparison of the liabilities of municipalities and counties. The rule of the general nonliability of counties except in cases where there is express statutory authority imposing liability, is well stated in 14 O. Jur. (2d), 381, Counties, §233, which reads in part as follows:
“In seeking to ascertain the liability of a county, whether in tort or contract, it must be remembered that counties are but political divisions of the state, organized as a part of the machinery of the government for the performance of functions of a public nature, and that, as such, they partake of the state’s immunity from liability. The state is not liable except by its own consent, and so the county is exempt from liability unless the state has consented.” (Emphasis added.)
What is quoted above is substantially the same as that found in 14 American Jurisprudence, 213, Counties, §46. See also 20 Corpus Juris Secundum, 1067, Counties, §215, which provides in part as follows:
“Except in a few jurisdictions, it is the general rule that counties are not subject to liability for torts, in the absence of statutory or constitutional provisions which either expressly or by implication impose such liability on them. More strictly, a county is not liable, in the absence of statutory or constitutional provision, for its failure to perform a duty, or for its negligent performance of a duty, when exercising governmental functions and acting as an agency of the state, even when the duty is imposed by statute; and there is no distinction in the application of this rule between the neglect to perform an act which ought to have been performed, and the performance of the duty in a negligent manner.”
Of course, the rule is otherwise when suit is authorized by statute, but as I see it, such is not the case here.
For the reasons above set forth the judgment of the court below should be affirmed in its entirety.