(dissenting in part).
This is an action commenced in the Circuit Court of Meade County against the State of South Dakota and members of the State Highway Commission for the recovery of consequential damages arising out of highway construction work. Plaintiffs allege that their right of access to and across a highway fronting their property has been impaired by the construction of a controlled access interstate highway. The circuit court entered judgment in favor of plaintiffs for damages to their property against defendant State of South Dakota. Prom this money judgment, defendants have appealed.
The state by reason of its sovereignty is immune from suit except as it consents to be sued. The Constitution, Art. Ill, § 27, recognizing this right of immunity, vests authority in the legislature to designate “in whalt manner and in what courts suits may be brought against the state”. The legislature may impose such conditions as public policy may require and suits may be maintained against the state only in the manner designated. Griffis v. State, 68 S.D. 360, 2 N.W.2d 666. A distinction exists between sovereign immunity from suit and sovereign immunity from liability. A statute which gives consent to be sued does not create a cause of action in favor of a claimant, but merely subjects the state to the jurisdiction of the court to enforce an existing right. Wisconsin Granite Co. v. State, 54 S.D. 482, 223 N.W. 600. In other words, a court derives jurisdiction of a suit against the state only *72from an act of the legislature and subject to the conditions therein imposed.
SDC I9601 Supp. 33.0403 which is included in a chapter entitled “Parties To Actions” provides: “In any and all actions to determine adverse claims to real or personal property, or involving the possession of real or personal property, or to foreclose mortgages or other liens upon real or personal property, or to partition the same, the state of South Dakota may be sued and made defendant in the courts of this state.” Consent to be sued generally is not given by this or other authorizing statute.
The majority opinion concludes that the circuit court was without jurisdiction and that officers authorized to represent the state were without authority to waive immunity and thus confer jurisdiction upon the court below. These conclusions are unquestionably correct. It seems obvious that where a judgment is rendered in the circuit court without jurisdiction or authority, regardless of the manner in which this court is informed of the lack of jurisdiction, the action should be dismissed. The jurisdictional defect in the instant action could not have been obviated by amendment of the complaint or otherwise. Mullen & Rouke v. Dwight, 42 S.D. 171, 173 N.W. 645, was in effect an action in the circuit court against the state to recover a money judgment. This court holding “that the circuit court had no jurisdiction tO' try and determine the action” reversed the judgment with direction that the action be dismissed.
The majority opinion holds that plaintiffs’ claim falls within the purview of the provisions of SDC 1960 Supp. 33.0604 permitting original actions in the Supreme Court and then determines whether plaintiffs would have been entitled to relief if action had been commenced in that court. The exercise of the original jurisdiction of the Supreme Court has not here been invoked by the commencement of an action or proceeding therein. Plaintiffs, if they had a remedy, should have proceeded in the proper forum to enforce it. The majority considers and determines ques*73tions that were not involved or argued on appeal from the judgment below and to arrive at the merits has decided an important question of jurisdiction. The jurisdiction that this Court as above indicated may have to adjudicate claims for consequential damages resulting from construction on a state highway must be traced to the constitution or the legislative branch of government which has the responsibility of formulating the state’s public policy.
The majority concedes that an action in the Supreme Court under the provisions, of section 33.0604, supra, cannot be maintained if there is m available appropriation for the payment of such judgment as plaintiffs might recover. It requires an act of the legislature to authorize the expenditure of state funds. Barnsdall Refining Corporation v. Welsh, 64 S.D. 647, 269 N.W. 853. The question then is whether the legislature has made funds available to pay a claim where no part of claimant’s property has been taken,, but which has been consequentially damaged by construction of a public highway by the State Highway Commission. I am unable to concur in the views expressed to the effect that there are funds available to pay such a claim. It is the settled law of this state that funds appropriated for highway construction and maintenance (SDC 1960 Supp. 28.0212 and 28.0235) are not available for payment of damages except those which result from failure to pay for highway work completed in compliance with the terms of a contract. Kansas City Bridge Co. v. State, 61 S.D. 580, 250 N.W. 343; Sigwald v. State, 50 S.D. 37, 208 N.W. 162; Griffis v. State, supra; Alexander v. State, 74, S.D. 48, 48 N.W.2d 830; 74 S.D. 593, 57 N.W.2d 121.
The origin and history of certain portions of the statutes of this state pertaining to acquisition of right of way for state highways indicate that the usual and ordinary interpretation of statutory provisions appropriating highway funds is consistent with the results sought to be attained. The State Highway Act of 1919, section 26, provided that each county acquire and pay for lands or right of way on any portion of the State Trunk Highway *74to 'be improved within the county. Chapter 113, Laws 1939 (SDC 1960 Supp. 28.13A) changed this and imposed the obligation to- acquire right of way for the improvement of any portion, of the State Trunk Highway upon the state. That act for the first time provided the manner in which compensation for the taking or damaging of private property for public use by the State Highway Commission shall be ascertained and payment made. That act (SDC 1960 Supp. 28.13A01) provides that “whenever any land or lands, easement in same or material is necessary for right of way in order to make a safe or proper grade, or for widening, changing, relocating, constructing, reconstructing, .maintaining or repairing any portion of the State Trunk Highway,. or whenever it :is necessary for providing cut slopes, borrow pits, channel changes, or to afford unobstructed vision on said State Trunk Highways at any point of danger to public travel, for right of way and borrow pit, the state of South Dakota, through and by its State Highway Commission, shall acquire and pay for same out of state highway -funds. The cost of said land or material and expense of purchase or condemnation shall be paid as part of the- cost of the State Trunk Highway.” Chapter 136, Laws 1941 (SDC 1960 Supp. 28.13A14) makes provision for the acquisition and payment by the state of land, material, dirt, -sand or gravel outside -of a right of way. Where a part of private property is taken under these acts either by purchase- or condemnation and the remainder i-s damaged, the damages thereto are compensable. See State Highway Commission v. Fortune, 77 S.D. 302, 91 N.W.2d 675. “Land or material for right of way and borrow pit may be acquired for the state * * * by gift, purchase or condemnation.” SDC 1960 Supp. 28.13A02. The legislature by the enactment of the statutes referred to (SDC 1960 Supp. 28.13A) has provided the manner in which compensation for the -taking or damaging of private property for public' use by the State Highway Commission shall be ascertained. It provides for the taking of private property for right of way, borrow pits and land or materials outside of right of way required for construe*75tion and maintenance of any portion of a state highway and provides specifically purposes for which payments may be made. It is too- plain to require discussion that the availability of state highway funds should not by construction be extended to payment of claims not within the contemplation of the legislature. This Court has been consistent in interpreting state highway appropriations as applicable to the specific purposes enumerated therein and I am not persuaded that we should depart from such interpretation. I quote pertinent language from Sigwald v. State, supra: “In the language of the Constitutional provision (§ 9, Art. XI), is the above ‘an appropriation for the specific purpose’ of paying damages arising from the breach of a contract caused by the highway commission? The word ‘specific’ compels a negative answer to the question whatever the answer might be were it not for that word.” [50 S.D. 37, 208 N.W. 163]. England v. State, 61 S.D. 132, 246 N.W. 628; Kansas City Bridge Co. v. State, supra; Griffis v. State, 69 S.D 439, 11 N.W.2d 138; Alexander v. State, supra.
As above indicated,, the question is not whether consequential damages come within the purview of the eminent domain provisions of the Constitution (§ 13, Art. VI), but whether funds are available for payment of consequential damages in the present case when no part of the damaged property was acquired for highway purposes. Since an action in my opinion cannot be maintained under the provisions of section 33.0604 solely for such damages for the reason that there is no available appropriation for their payment, there is no authority in this court to determine the issue of liability. It is not materially different from the many cases involving injury or damage to private property resulting from the torts of agents of the state. The legislature must be looked to for relief. See State Highway Commission v. Brixey, 178 Okl. 118, 61 P.2d 1114; State ex rel. Department of Highways v. Keen, Okl., 354 P.2d 396; Daugherty v. Vidal, 37 N.M. 256, 21 P.2d 90, 93. In the case last cited, the court considering the absence of judicial remedy said: “The state must be permitted gener*76ally to pursue its governing and business functions free from, interference by its courts. Its Legislature may, indeed, make such provision for suits as its wisdom suggests. It will surround the jurisdiction with such restrictions as public policy may seem to require. * * * We have said so much because of appellant’s insistence upon his remediless situation as against an invasion of his constitutional right — - a matter to which no court should turn a deaf ear. We are warned,, however, that one branch of government may not safely or wisely carry its zeal for the rights of the citizen so far as to encroach upon the functions of a co-ordinate branch. The courts cannot act in a case like this without impairing or destroying the salutary immunity from suit. The Legislature can act in the particular case or by general provision, and with proper regard for the public interest. The Legislature is no doubt as sensitive to injustice as the courts. By unsound or specious reasoning we .might arrive at rough justice in a particular case. More often we could do nothing. It is better that all understand that the legislative responsibility is undivided.”
Since the action of plaintiffs cannot in my opinion be maintained, I would for the reasons heretofore stated reverse the judgment appealed from with direction that the action be dismissed.