concurring specially.
I concur in the result reached by the majority because it is mandated by the laws of this state in effect at the time the cause of action arose, July 31, 1980. In my view the result would have to be different had the injury occurred on or after January 1, 1983, when Art. I, Sec. II, Par. IX, as designated in the 1983 Constitution, went into effect.
The sovereign immunity of municipal corporations, OCGA § 36-33-1, is a codification of the holding of this court in Collins v. Mayor &c. of Macon, 69 Ga. 542 (1882). See History Section, OCGA § 36-33-1; Vol. I, Preface, Code of Georgia, 1895; Sentell, Statutes of Non-statutory Origin, 14 Ga.L.Rev. 239 (1980). In Collins, this court held that a city was not liable in performing acts of a legislative or judicial nature “for they are deemed to be a part of the state’s power, and, therefore, under the same immunity.” Collins, supra at 544.
The Georgia Constitution as voted on and ratified by the citizens now provides a waiver of sovereign immunity of the state and its departments and agencies for claims covered by liability insurance. 1983 Constitution, Art. I, Sec. II, Par. IX. Constitutional principles and public policy would dictate that this waiver be applied to all sovereign immunity cases arising after the effective date of this amendment. However, the application of these principles and policies must wait until the proper case.