dissenting.
In some of our prior cases, particularly older ones, there is language to the effect that “a sovereign State is not liable to suit at the instance of a citizen, unless permission to sue has been expressly *456granted.” (Emphasis supplied.) Peeples v. Byrd, 98 Ga. 688, 693-694 (25 SE 677) (1896); Roberts v. Berwick, 187 Ga. 691, 694 (1 SE 713) (1939). Other cases belie this notion and, in my view, should control the case at bar.
Art. VI, Sec. V of the Georgia Constitution (Code Ann. § 2-3401) provides: “ ... Nothing contained herein shall constitute a waiver of the immunity of the State from suit, but such sovereign immunity is expressly reserved except to the extent of any waiver of immunity provided in this Constitution and such waiver or qualification of immunity as is now or may hereafter be provided by act of the General Assembly.” This provision has been held applicable to suits involving “the state, its agencies, and subdivisions.” Sheley v. Board of Public Education, 233 Ga. 487 (212 SE2d 627) (1975).
In PMS Const. Co. v. DeKalb County, 243 Ga. 870, 871 (257 SE2d 285) (1979), it is stated: “Code Ann. § 23-1501 provides that ‘(e)very county is a body corporate, with power to sue and be sued in any court,’ while Code Ann. § 23-1502 provides that ‘(a) county is not liable to suit for any cause of action unless made so by statute.’ This court has long construed these two statutes as permitting suits against counties based on contracts made pursuant to legislative authorization. Hancock County v. Williams, 230 Ga. 723 (198 SE2d 659) (1973); Deason v. DeKalb County, 222 Ga. 63 (148 SE2d 414) (1966); Decatur County v. Praytor, Howton & Wood Contracting Co., 163 Ga. 929 (137 SE 247) (1927); Wagener v. Forsyth County, 135 Ga. 162 (68 SE 1115) (1910); Harris County v. Brady, 115 Ga. 767 (42 SE 71) (1902).”
Code Ann. § 95A-304 (a) clearly places limits on the doctrine of sovereign immunity with regard to suits against the Department of Transportation. It provides that “[t]he department shall have the authority to bring suits, and it may be sued in such actions as are permitted by law.” I can perceive no meaningful distinction between Code Ann. § 95A-304 (a) and Code Ann. §§ 23-1501,1502 insofar as the waiver of sovereign immunity is concerned. By statute, as well as by the dictate of common sense, the Department of Transportation stands in the same shoes as a county. Thus, if the department “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, . . . although there is no statute expressly authorizing the bringing of an action for such purpose.” Decatur County v. Praytor, Howton &c. Co., supra at 934. I recognize that this conclusion acknowledges the possibility of an “implied waiver” of sovereign immunity and is therefore contrary to cases exemplified by Peeples v. Byrd, supra. See Justice Hill’s special concurrence in PMS Const. Co. v. DeKalb County, supra at 873. However, I find modification of such *457cases preferable to the pointless inconsistency fostered by the majority opinion.
Code Ann. § 95A-302 (e) provides: “The department shall have the authority to negotiate, let, and enter into contracts with any person, State agency, or county or municipality of the State for the construction or maintenance of any public road or any other mode of transportation or for the benefit of or pertaining to the department or its employees in such manner and subject to such express limitations as may be provided by law.” There is no doubt that the contract at issue in this case was entered into pursuant to legislative authorization. I therefore would hold that the department has waived the defense of sovereign immunity.
In reaching its decision, the majority appears to have overlooked Code Ann. § 95A-303, which provides: “In addition to the powers . specifically delegated to it in this Title, the department shall have the authority to perform all acts which are necessary, proper, or incidental to the efficient operation and development of the department and of the State Highway System and of other modes and systems of transportation, and the provisions of this Title shall be liberally construed to that [e]nd. "(Emphasis supplied.) Under the doctrine of sovereign immunity, “whoever contracts with the State trusts to the good faith of the State [to live up to its word] ...” Ga. Military Institute v. Simpson 31 Ga. 273, 277 (1860), Roberts v. Barwick, supra at 694. Can it seriously be argued that the holding of the majority promotes the “efficient operation and development of the department”? Will individuals with whom the department needs to have dealings be encouraged by a rule which subordinates a contractual promise to bureaucratic whim?
I respectfully dissent.
I am authorized to state that Presiding Justice Hill joins in this dissent.