concurring specially.
I do not believe that under the facts and law controlling at that time, Davis v. City of Macon, 122 Ga. App. 665 (178 SE2d 557) (1970) is incorrect. The insurance policy purchased by the city contained a special condition precedent under which the insurer would not be liable at all: “ TO. Attachment of Liability. Liability under this policy shall not attach [to insurer] unless and until the insured shall have admitted liability for the self-insured retention limits, or unless and until the insured has by final judgment been adjudged to pay a sum which exceeds such self-insured retention limits.’ ” Id. at 667. Thus, unless the city was self-insured for the first $10,000 in damages, the insurance did not cover the next $90,000 at all. In fact, the policy was called an “ ‘excess policy over self-insured retention.’ ” Id. at 666.
So it became important in Davis to determine whether the city could be self-insured, i.e., whether the law allowed it, and secondly, whether it did become self-insured for the first $10,000, i.e., whether it followed the statutory requirements for a municipality to become self-insured. The statutory law of Georgia did allow certain municipalities to become self-insured if they so chose and thereby to waive their governmental immunity to that extent. Ga. Laws 1960, p. 2709 is the statute pointed to by the court in Davis. But that statute did not give this authority to every municipality in Georgia; only those coming within a certain population bracket were given this specific and limited type of permission to waive governmental immunity. Whether Macon was one of the chosen few had to be decided on the basis of evidence. Since the 1961 census which would purportedly show that it did qualify was not in evidence in the trial court, the Court of Appeals properly remanded the case for proceedings at which that evidence and “any further necessary proof of compliance with the Act” could be introduced. As to the latter, the Court was referring to the procedure by which a city which chooses to become self-insured, does in fact do so.
Then, of course, if the city was allowed to become self-insured in that it came within the population bracket, and did become self-insured by following the procedural requirements, then two consequences resulted: one, the policy liability attached because the condition had been met, and the policy coverage for $10,001 to $100,000 *302was available due to the contract and the law allowing such contracts (the Ins. Code § 56-2437, now OCGA § 33-24-51); two, the direct liability of the city attached up to $10,000 because it had self-insured itself for the first $10,000 by electing to become self-insured and by fulfilling the requirements of the law.
That is what the Court meant, I believe, when it concluded: “Thus we agree with plaintiff [who was suing for $30,000] that under the facts here the city has waived its governmental immunity under Insurance Code § 56-2437 by the purchase of this policy of insurance, provided the city meets the requirements of Ga. L. 1960, p. 2709.” Id. at 670. Despite the reference by the majority in this current case to the 1960 Act as a “population range” act, it is more, for it also is the basis of authority for otherwise immune municipalities to follow certain procedures and become self-insured.
I see no reason for overruling Davis v. City of Macon, supra.
As to the instant case in which plaintiff seeks $200,000, the question is whether the school district could and did become self-insured for the first $100,000 (and aggregate of $170,000 for the year). In this case policy coverage and self-insurance coverage are not dependent questions, as they were in Davis, because the policy in this case does not contain a condition of self-insurance which had to be fulfilled and absent which there would be no coverage. The school district chose to purchase insurance for damages over $100,000 (and under the yearly aggregate) and thus waive its immunity under OCGA § 33-24-51 to that extent. It did not, simply by the act of purchasing that coverage thereby, ipso facto, choose also to become a self-insurer for the first $100,000. Such an act of discretion would have to be authorized by a statute other than OCGA § 33-24-51, which does not embrace waiver via self-insurance, and would have to have fulfilled whatever statutory procedures were provided by the legislature for it to become self-insured. The reason is that “[a] county is not liable to suit for any cause of action unless made so by statute.” OCGA § 36-1-4. See Miree v. United States, 242 Ga. 126, 133 (249 SE2d 573) (1978); Johnson v. Chatham County, 167 Ga. App. 283, 284 (306 SE2d 310) (1983). Without a statute authorizing waiver by way of self-insurance, there could be none even if the school district contracted with the insurer to be self-insured as a condition of insurer’s liability, as it did in Davis. That, of course, is not the case here. There is no “Attachment of Liability” provision similar to that found in the Davis case nor any other provision which would make self-insurance a condition of policy coverage. The policy merely provided that the insurer was not covering the first $100,000 nor anything over $400,000. By this limitation it did not, nor could it, impose self-insurer status and liability arising out of self-insurer status, on the governmental entity.
The question in the current case then is, with the school board’s *303retention of whatever liability it might have for the first $100,000, was it immune to the claim up to that amount or had it chosen to become self-insured for that amount? The authority to become self-insured would have to rest in statute, just as the authority to purchase insurance must rest on OCGA § 33-24-51. See Koehler v. Massell, 229 Ga. 359, 362 (4) (191 SE2d 830) (1972). In the Davis case it rested on Ga. L. 1960, p. 2709 (if Macon met the population criteria and followed the procedure), but that does not apply here as the school district is not a municipality. There is no statute of similar import by which the legislature of Georgia granted to such subdivisions of the state the authority to waive the governmental immunity which would otherwise prevail. That being the case, even if the school board desired to self-insure, and there is no evidence that it did except perhaps the inference drawable from its purchase of an “Excess Automobile Liability Policy,” it could not do so.
Decided December 4, 1985 Rehearing denied December 19, 1985 Arthur L. Myers, Jr., for appellant. Lynwood A. Maddox, Jr., for appellee.I am authorized to state that Presiding Judge Deen and Judge Carley join in this special concurrence.