The opinion
Eberi-iardt, Judge,
dissenting in part. Because of the language of the Resolution of the General Assembly under which payment was made, and the acceptance of the payment thereunder, I must dissent from the judgment insofar as it holds that no bar resulted as to any action against the driver of the highway truck, a joint tortfeasor.
The Resolution specifically provided that the payment to plaintiff-appellee of $14,956.50 ($12,500 for the value of the life of the plaintiff’s deceased husband, $855 as damages to his truck, $566.20 for hospital and doctor bills incurred, and $1,035.30 funeral expense) was to be “in full and final satisfaction for any claim against the State arising as a result of the collision.” Payment of that sum was tendered and accepted under the Resolution.
The widow now seeks to recover the value of the life of her deceased husband from the administrator of the estate of the driver of the highway truck, with which her husband had collided while driving his own truck on the highway. Negligence on the part of the driver of the highway truck is alleged.
While there was no written release executed by Mrs. Jones when she accepted the payment, it is inescapable that the acceptance of the money carried with it acceptance of the condition incorporated in the Resolution that it be in full and final satisfaction of any claim she might have against the State. Restatement, Contracts, § 421 (1932); 1 CJS 482, Accord & Satisfaction, § 12; Prosser on Torts (3rd Ed.) 268; Pennsylvania Threshermen &c. Mut. Ins. Co. v. Hill, 113 Ga. App. 283 ( 148 SE2d 83 ). “[Pjayment being made upon condition, the acceptance of the payment carries with it the acceptance of the condition.” Citizens & Sou. Bnk. v. Union Warehouse &c. Co., 157 Ga. 434, 453 ( 122 SE 327 ).
It is contended that the payment by the State was a mere gratuity, since no legal liability existed on its part for the negligence of its employee in negligently operating the highway *728 truck, and that for this reason the payment did not and could not amount to an accord and satisfaction as.to the claim of Mrs. Jones against the driver of the truck. See N. C. & St. L. R. Co. v. Miller, 120 Ga. 453, 455 ( 47 SE 959 ); Western & A. R. Co. v. Sellers, 15 Ga. App. 369 (2) ( 83 SE 445 ). But “There is a distinction between sovereign immunity from suit and sovereign immunity from liability. The latter exists when the sovereign is engaged in a governmental function. The former may be waived without a waiver of the latter.” Manion v. State, 303 Mich. 1 ( 5 NW2d 527 ). The construction and maintenance of roads and highways is generally held to be a proprietary rather than a governmental function. Thus there exists here an immunity from suit, because the function was performed by the sovereign.
Further, we have the statute which authorized the payment that was made to Mrs. Jones. See Code Ann. § 47-504 et seq. If we hold the payment to have been a gratuity it amounts to a holding that this statute is unconstitutional, for gratuities are prohibited. Constitution of 1945, Art. VII, Sec. I, Par. II (Code Ann. § 2-5402). We have no power to hold the statute unconstitutional; only the Supreme Court could do that. Our duty is to treat and construe the law authorizing the payment to be constitutional until its unconstitutionality has been declared by the Supreme Court. Consequently, we must regard the payment as an authorized and lawful settlement of the plaintiff’s claim against the State.
Having accepted the payment in full and final satisfaction, she surrendered her cause of action against the.truck driver and she is now barred from bringing this action. Donaldson v. Carmichael, 102 Ga. 40 ( 29 SE 135 ); Friedlander v. Feinberg, 27 Ga. App. 808 (2) ( 110 SE 26 ); Griffin Hosiery Mills v. United Hosiery Mills, 31 Ga. App. 450 ( 120 SE 789 ); Allen v. Landers, 39 Ga. App. 264 ( 146 SE 794 ); Edmondson v. Hancock, 40 Ga. App. 587, 591 ( 151 SE 114 ); Caplan v. Caplan, 62 Ga. App. 577, 579 ( 9 SE2d 96 ).
“It seems clear that since the State’s employee Graham was a joint tort-feasor with defendants and that the State, but for its immunity from suit as a sovereign, would have also been *729 jointly and severally liable with the others upon the doctrine of respondeat superior; and that since the Board of Claims allowed plaintiff compensation for his injuries, which was paid, that this was a satisfaction of his claim and a discharge of the other joint tort-feasors.” Schoenly v. Nashville Speedways, Inc., 208 Tenn. 107 ( 344 SW2d 349 ).
I am authorized to say'the Judges Hall and Deen concur in this dissent.