#### JOHN A. DALTON v. STATE HIGHWAY AND PUBLIC WORKS COMMISSION.

(Filed 29 September, 1943.)

1. State § 2a—

A state cannot be sued in its own courts or elsewhere unless it bas consented to such suit, by statutes or in cases authorized by provisions of the organic law, instanced by Art. Ill, Const, of U. S.; Art. IV, sec. 9, Const. of North Carolina.

2. State § 1—

The State Highway and Public Works Commission is an unincorporated governmental agency of the State and not subject to suit except in the manner expressly authorized by statute.

3. State § 2a: Eminent Domain §§ 6, 14—

The special proceeding, provided by C. S., 3S46 (bb) and 1716, is to furnish a procedure to condemn land for a public purpose and to fix compensation for the taking thereof and does not in any way authorize an action for breach of contract.

Appeal by respondent from *Alley, J.,*at April Term, 1943, of Rutherford.

Tbis is a special proceeding instituted under tbe provisions of C. S., 3846 (bb) and 1716, *et seq.,*wherein, tbe petitioner, John A. Dalton, seeks to recover damages for tbe taking of bis land by tbe respondent, tbe State Highway and Public Works Commission, for widening of a state highway, U. S. No. 74, near tbe village of Chimney Rock, in Rutherford County, and included in tbe items of damage alleged in tbe petition, by amendment, is tbe failure of tbe respondent to comply with its agreement with tbe petitioner, made prior to tbe moving of petitioner’s bouse, to replace such bouse upon a good foundation in as good a condition as it was in its original state.

Tbe following issues were .submitted to tbe jury, and answered thereby as shown, to wit :

“1. What sum, if any, is the- petitioner entitled to recover of tbe respondent by reason of the widening of tbe highway at tbe place in question? Answer:‘$900.00.’

“2. What benefits, general or special, if any, accrued to tbe petitioner by reason of tbe widening of said highway? Answer : ‘None.’

“3. Did tbe respondent agree to remove petitioner’s residence in as good condition as it was in its original state? Answer: ‘Yes.’

“4. Did respondent commit a breach of said contract, as alleged in the petition? Answer: ‘Yes.’

“5. What damage, if any, is petitioner entitled to recover by reason of said breach? Answer: ‘$1,100.00.’”

*407From judgment for $2,000.00 predicated on tbe verdict, in favor of tbe petitioner tbe respondent appealed, assigning errors.

*R. L. Whitmire and J. 8. Dockery .for petitioner, appellee.*

*Charles Ross and Ernest A. Gardner for respondent, appellant.*

ScheNCK, J.

Tbe respondent objected and reserved exception to tbe submission of issues 3, 4, and 5, wbicb relate to tbe petitioner’s allegation and contention that be is entitled to recover damages for breach of contract to place petitioner’s bouse on a good foundation in as good condition as it was in its original state, in addition to damages for tbe taking of bis land for tbe widening of tbe highway. We are constrained to bold that this exception is well taken. Tbe State Highway and Public Works Commission is an unincorporated governmental agency of tbe State and not subject to suit except in tbe manner expressly authorized by statute. *McKinney v. Highway Com.,*192 N. C., 670, 135 S. E., 772; *Yancey v. Highway Com.,*222 N. C., 106, 22 S. E. (2d), 256. The purpose of tbe special proceeding provided by C. S., 3846 (bb) and 1716, is to furnish a procedure to condemn land for a public purpose and to fix compensation for tbe taking thereof, and does not in any way authorize an action for breach of contract. A State cannot be sued in its own courts or elsewhere unless it has expressly consented to such suit, by statutes or in cases authorized by provisions in the organic law, instanced by Art. III, Const. U. S.; Art. IV, sec. 9, Const. of North Carolina; *Carpenter v. R. R.,*184 N. C., 400, 114 S. E., 693; and for tbe further reason, it would seem, that in a special proceeding for condemnation, being entirely statutory, a cause of action for breach of contract cannot be joined, and in such proceeding tbe measure of recovery is limited to tbe difference between the fair market value of tbe land before and after tbe taking thereof, with due allowance for general and special benefits accruing from tbe improvement of -the highway. *Allen v. R. R.,*102 N. C., 381, 9 S. E., 4; *Abernathy v. R. R.,*150 N. C., 97, 63 S. E., 180.

For tbe error in submitting the issues to which exception was reserved tbe respondent is entitled to a new trial and it is so ordered.

New trial.