concurring specially.
Although I agree with the holding reached by the majority in Division 2 of its opinion, I am compelled to write separately because of the majority’s failure to resolve the apparent inconsistency between the “sue and be sued” language contained in the city’s charter and the sovereign immunity which is granted to municipal corporations of this state.
As noted by the appellant, the phrase “sue and be sued,” or words of similar import, have been held to constitute an express waiver of sovereign or governmental immunity. As suggested by the majority, however, the cases relied on by appellant do not involve the interpretation of that phrase in connection with an alleged waiver of municipal immunity and are not dispositive of the issue presented by this case. I believe this issue can only be resolved by ascertaining the relevant constitutional, statutory and case law as it pertains to the particular entity under scrutiny.
Municipalities, as recognized by both statute and case law, have long enjoyed immunity from tort liability in the performance of legislative and judicial functions. McCrary Eng. Corp. v. City of Bowdon, 170 Ga. App. 462, 464-65 (317 SE2d 308) (1984). “In 1880 the Supreme Court of Georgia in Rivers v. City Council of Augusta, 65 Ga. 376 (38 AR 787), promulgated the doctrine whereby a municipal corporation was ruled to have no tort liability when acting in the performance of governmental functions as contrasted with conduct of ministerial or non-governmental duties. This common law doctrine was thereafter first codified as Section 748 in the Code of 1895 and subsequently carried forward as Section 897 in the Code of 1910 and in [the] Code of 1933 as Section 69-301.” Mitchell v. City of Newnan, 125 Ga. App. 761, 761-62 (188 SE2d 917) (1972).
At the time the action was filed in the present case, the provision granting sovereign immunity to municipal corporations was codified at OCGA § 36-33-1, which then provided as follows: “Municipal corporations shall not be liable for failure to perform, or for errors in performing, their legislative or judicial powers. For neglect to perform, or improper or unskillful performance of their ministerial duties, they shall be liable.” That language may presently be found at *84OCGA § 36-33-1 (b).1
Decided July 14, 1988 Rehearing denied July 28, 1988 Patrick J. Fox, Billy E. Moore, for appellant. Jo A. Crowder, Jan P. Cohen, Mary C. Cooney, Marva J. Brooks, *85for appellees.*84This brief history demonstrates that from the outset it was recognized that a municipality may be liable for the negligent or improper performance of their ministerial duties. Likewise, it has been recognized that the doctrine of municipal immunity does not attach in connection with the operation and maintenance of a nuisance, see, e.g., Rainey v. City of East Point, 173 Ga. App. 893 (328 SE2d 567) (1985), and in actions concerning constitutional rights, such as eminent domain cases, see CFI Constr. Co. v. Bd. of Regents of the Univ. System, 145 Ga. App. 471 (4) (243 SE2d 700) (1978). In short, it has long been the rule that municipal corporations can sue and be sued. Mayor &c. of Athens v. Gregory, 231 Ga. 710 (3) (203 SE2d 507) (1974).
Accordingly, I believe the “sue and be sued” language found in the city’s charter simply refers to those situations in which, historically, the doctrine of municipal immunity has not been applied. In my opinion, such an “interpretation comports with the statutory language, the legislative intent and reason, and it works in tandem with [OCGA § 36-33-1 and the constitution of the state] and not in tension therewith.” DeKalb County School Dist. v. Bowden, 177 Ga. App. 296, 300 (339 SE2d 356) (1985).
I am authorized to state that Presiding Judge McMurray joins in this special concurrence.
Although not applicable to litigation pending on July 1, 1986, OCGA § 36-33-1 was subsequently amended to provide as follows: “(a) Pursuant to Article IX, Section II, Paragraph IX of the Constitution of the State of Georgia, the General Assembly, except as provided in this Code section, declares it is the public policy of the State of Georgia that there is no waiver of the sovereign immunity of municipal corporations of the state and such municipal corporations shall be immune from liability for damages.” (Emphasis supplied). That section also provides that a municipality does not waive its immunity by the purchase of liability insurance, “except as provided in OCGA § 33-24-51, or unless the policy of insurance issued covers an occurrence for which the defense of sovereign immunity is available, and then only to the extent of the limits of such insurance policy.” Subsection (b) retained the language previously contained in OCGA § 36-33-1 (see text, supra).
Although the legislature has constitutional authority to waive the immunity of municipalities pursuant to Article IX, Section II, Paragraph IX of the Georgia Constitution, I construe the “except as provided in this Code section,” language of OCGA § 36-33-1 to mean that should the legislature choose to exercise that authority, it will expressly so provide in the provisions of that section.