On Petition to Eehear
The plaintiffs in error filed herein a courteous, dignified and forceful petition to rehear. To all intents and purposes this petition and the brief in support thereof is a re-argument of what was heretofore argaed in the brief and at the Bar of this Court.
The petition now, and the brief in support thereof, is in effect based on the false premise in that it is argaed that the suit is not against the State but against the Commissioner of Highways and thas should be allowed to be maintained. We think that in the original opinion this qaestion was answered without going into any particular detail because the qaestion had long been settled. This qaestion has been settled by many former decisions many of which are cited in Automobile Sales Co. v. Johnson, 174 Tenn. 38, 122 S.W.2d 453, 454, 120 A.L.R. 370. In other words under these aathorities this *186suit although nominally against the Commissioner of Highways is a “suit against the State”. We adhere to this rule. It is not our purpose to legislate because this is a function of the Legislature. The Legislature has provided a means whereby the property owner may he compensated for his property as taken as is pointed out in our original opinion. It is not our function to find other ways or to suggest that other ways might he better.
It is very ably argued that in sticking by the rule which was promulgated by the Legislature in the various statutes set forth in the original opinion and as followed by us is “the old horse and buggy rule”. What we said in the closing sentences of the paragraph immediately preceding this we think is a sufficient answer to this argument. The argument is that the rule which we have long followed in this State as pointed out in our original opinion requiring the land owners to bring suit against the County instead of the State is outmoded. The interesting argument is made that numerous suits may be filed against the county without the knowledge of the Commissioner of Highways and that judgments may be presented to the Commissioner for payment by the county long after the project has been completed. Then it is argued, too, about the various and sundry abilities and the small pay, etc., of the District Attorney Generals who normally represent the counties in these things. This all of course is very interesting and might be a good argument to make to the Legislature to change the method and mode of bringing these suits, and having these land owners paid, but it certainly is not an argument that is appealing to the judiciary when that body tries as hard as possible to stay within the constitutional limits of its branch of the government.
*187Argument is made on a number of questions concerning the relationship between the counties and the Commissioner of Highways which are not essential to the decision of this lawsuit. Clearly if we undertook to write and rule on questions that are not pertinent to the decision of this lawsuit it would be pure dictum.
We think under the authorities cited in our original opinion and for reasons therein expressed that the Legislature has given to the land owner relief by way of damages by suits against the county in the original and the usual way. As we pointed out in the original opinion procedural remedy was provided under the acts so that there could be no question about a land owner being denied his constitutional right to just compensation. This Court in Stewart v. Sullivan County, 196 Term. 49, 264 S.W.2d 217, recognized that the loss of access due to closing of roads is a taking within the sense of the Constitution and that thus there is nothing taken away from the land owners herein that precludes him or them for getting just compensation for the land as taken.
We have carefully considered this petition to rehear and feel that our original opinion covers the matter thoroughly. For the reasons herein stated the petition to rehear must be denied.