concurring specially.
Our Constitution provides that counties shall have "such powers and limitations as are provided in this Constitution and as prescribed by law.” Code Ann. § 2-5801. Our law provides that "[a] county is not liable to suit for any cause of action unless made so by statute.” Code Ann. § 23-1502. Another Code section, § 23-1701, prescribes that contracts entered into in behalf of counties shall be in writing and entered on the minutes. It does not provide that a county is liable to suit on such contracts.
However, the majority cite several cases for the proposition that a county may be sued on contracts made pursuant to legislative authority. That is to say that the legislature, by authorizing counties to contract, and the *874counties by contracting, have impliedly waived the counties’ sovereign immunity. As was stated in Decatur County v. Praytor, Howton & Wood Contracting Co., supra, 163 Ga. at 934: "Whenever a county ... is authorized by statute to contract, and in pursuance of such power does contract, then an action will lie against it to enforce such liability, or to enforce any rights growing out of such contract, although there is no statute expressly authorizing the bringing of an action for such purpose.”
On the other hand, there are decisions saying that sovereign immunity can be waived only by express consent of the state, e.g., Roberts v. Barwick, 187 Ga. 691 (1) (1 SE2d 713) (1939); i.e., there can be no implied waiver of sovereign immunity. It is true that the Decatur County case, supra, dealt with a county while the Roberts case, supra, dealt with the Commissioner of Agriculture. On the other hand, one would expect that the sovereign immunity rule requiring express waiver, or allowing implied waiver, would be the same for all sovereigns (if sovereigns they be). See my dissent in Miree v. United States, 242 Ga. 126, 137 (249 SE2d 573) (1978).
I believe the majority has correctly found that there can be (and was here) an implied waiver of sovereign immunity. As was said in Regents of the University System of Ga. v. Blanton, 49 Ga. App. 602 (1) (176 SE 673) (1934): "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. . . Where there is an act of the State legislature authorizing a contract by a State department, the courts have power to enforce the contract against the State.” Cf. Meadows Motors, Inc. v. Dept. of Administrative Services, 141 Ga. App. 224 (233 SE2d 14) (1977).
For the reasons stated in Miree, supra, I concur in the judgment.
I am authorized to state that Chief Justice Nichols joins in this special concurrence.