Majerus v. Milwaukee County

Decision Date04 June 1968
Citation159 N.W.2d 86,39 Wis.2d 311
PartiesGeorge M. MAJERUS, Respondent, v. MILWAUKEE COUNTY, a municipal body corporate, and National Jaycee Air Show, Inc., a Wisconsin corporation, Defendants, Wisconsin State Armory Board, a body politic and corporate, Appellant.
CourtWisconsin Supreme Court

Bronson C. La Follette, Atty. Gen., John E. Armstrong and Benjamin Southwick, Asst. Attys. Gen., Madison, for appellant.

Peregrine, Schimenz, Marcuvitz & Cameron, Hugh R. Braun, Milwaukee, for respondent.

HALLOWS, Chief Justice.

The two questions presented on this appeal are: (1) Whether the Wisconsin State Armory Board is an independent body politic and corporate outside the protection of sovereign immunity, and (2) whether the complaint is defective for failure to allege compliance with sec. 895.43, Stats.

Sovereign Immunity

It is contended by the Armory Board that it is merely an administrative arm of the state and as such is entitled to sovereign immunity protecting it from suit. There is no question of its liability for torts. That question was disposed of in Holytz v. City of Milwaukee (1962), 17 Wis.2d 26, 115 N.W.2d 618, when this court abolished governmental immunity for torts. The question now raised is not one of liability but whether the Armory Board can be sued to enforce that liability. If the Armory Board is only an arm of the state, then it is argued sec. 27, Art. IV, of the Wisconsin Constitution is applicable. This article provides that 'the legislature shall direct by law, in what manner, and in what courts suits may be brought against the state.' And, it is argued that the Armory Board is immune from suit because the legislature has not provided it may be sued to enforce its liability in tort.

More importantly, the Armory Board argues it is not an independent body with such proprietary powers or functions that it can be said the legislature in creating it waived its immunity to suit. The Armory Board relies on City of Kenosha v. State (1967), 35 Wis.2d 317, 151 N.W.2d 36; Metzger v. Wisconsin Department of Taxation (1967), 35 Wis.2d 119, 150 N.W.2d 431; and Sullivan v. Board of Regents of Normal Schools (1932), 209 Wis. 242, 244 N.W. 563. In Sullivan the court laid down the criteria for determining when a unit of government is an independent body politic or 'independent going concern' or sui juris and not an arm or agency of the state. Both Kenosha and Metzger state that immunity from suit (sovereign immunity) is possessed by a state agency which has no independent proprietary functions or powers but neither case holds that the agency must have all the independent proprietary functions or powers enumerated in Sullivan.

The Armory Board has power to convey real estate and dispose of personal property without express authority from the state. It has the power to hold and disburse its own funds independent of state warrants. It is given no appropriation but has the power to borrow money and issue and sell bonds and other evidences of indebtedness to accomplish its purposes. The debts thus created are satisfied out of rents and interest the Armory Board receives from the property it acquires. The Armory Board claims Sullivan is controlling because it does not have the power to raise money by taxation, the property it acquires is held in trust for the state, it must convey all its property to the state when it is finally paid for, it was created to perform only certain specific administrative duties and it has no undedicated property out of which an execution can be satisfied.

We think it is not necessary to have all the powers enumerated in the Sullivan Case to constitute an independent body politic. The Armory Board by sec. 21.615 is given a very distinct character. Subsec. (1)(a) expressly provides the Armory Board 'is made a body politic and corporate' and has the power, subsec. (2), 'to sue and be sued.' While some state boards are created a body corporate with the power to sue and be sued, other bodies corporate do not have the right to sue or be sued. Some agencies are not separate corporate bodies but they may sue and be sued. Other divisions of the state government have neither corporate status or authority to sue or be sued. The Armory Board is almost unique in being designated a body politic and corporate. This with its independent proprietary powers constitute it sui juris.

This view of the intention of the legislature as to the nature of the Armory Board as expressed in the statutes is not changed by the classification or treatment of the Board under the Kellett Bill, chapters 75 and 327, Laws of 1967. The fact that the Armory Board is now attached to a department for administrative reasons does not necessarily change its nature. Its powers and functions remain intact. Consequently, the Armory Board is outside the scope of sovereign immunity and may be sued to enforce its liability in tort.

Pleading Sec. 895.43, Stats.

The plaintiff concedes the provisions of sec. 895.43 1 are applicable to this action in tort against the Armory Board. The complaint...

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29 cases
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    • United States
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    ...of Wisconsin Hosps., 198 Wis.2d 237, 542 N.W.2d 207, 210 (1995) (internal quotations omitted) (citing Majerus v. Milwaukee County, 39 Wis.2d 311, 159 N.W.2d 86, 87-88 (1968)) (finding that even though the state Armory Board had only some of the powers enumerated under Sullivan, the entity c......
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    ...examined the character of legislatively created entities in order to determine liability thereof to suit. See: Majerus v. Milwaukee County (1968), 39 Wis.2d 311, 159 N.W.2d 86; Sullivan v. Board of Regents of Normal Schools, supra.17 See also: Herro v. Wisconsin Fed. Surp. P. Dev. Corp. (19......
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