State ex rel. Martin v. Reis

• Decision Date: 07 March 1939
• Citation: 230 Wis. 683,284 N.W. 580
• Parties: STATE ex rel. MARTIN, Atty. Gen., v. REIS, Circuit Judge.
• Court: Wisconsin Supreme Court

230 Wis. 683

284 N.W. 580

STATE ex rel. MARTIN, Atty. Gen.,

v.REIS, Circuit Judge.

Supreme Court of Wisconsin.

March 7, 1939.

This is an original action begun in this Court on the 13th day of January, 1939, by the issuance of an alternative writ of prohibition on the application of the Attorney General, petitioner, restraining the Honorable Alvin C. Reis, Judge of the Circuit Court for Dane County, and William Newton Nichols, from proceeding further in an action purported to be pending in the circuit court for Dane County against the State of Wisconsin.

The parties stipulated in open court that the petition for leave to commence the action should stand as and for the petition in the action itself and that such petition should be treated as having been demurred to by counsel for the defendant Nichols. The circuit judge filed a return to the alternative writ and the State demurred to the return.

The facts will be stated in the opinion.

John E. Martin, Atty. Gen., and Warren H. Resh, Asst. Atty. Gen., for petitioner.

Lowell T. Thronson, of Madison, for respondent.

ROSENBERRY, Chief Justice.

William Newton Nichols began an action on the 7th day of December, 1938, against the state of Wisconsin on account of work and labor performed. Concurrently, there was served upon the Attorney General an order to show cause why an order should not be issued by the circuitcourt for Dane county, directing the clerk of that court that ch. 285, Wisconsin Stats., which requires a bond to be filed in actions against the state, has no application to the action begun by Nichols for the reason that the action involves a wage claim and the plaintiff in such an action is permitted to maintain the action without giving security for costs by virtue of sec. 103.39(3). On December 9, 1938, the state moved to set aside the service of the summons upon the ground that the bond required by ch. 285 had not been given. The circuit court overruled the motion to set aside the service and directed the clerk of the circuit court that no bond for security for costs was required in said action, the circuit court being of the opinion that sec. 103.39(3) governs.

[1] The question here for decision is not whether the respondent Nichols should give security for costs in an action brought to enforce a wage claim. If that were the only question involved, this Court would not have exercised its supervisory control. The fundamental question to be determined in this case is, does a regulatory statute of general application apply to the sovereign, the state itself? It is not disputed that it is an established principle of law that no action will lie against a sovereign state in the absence of express legislative permission. It is further established that when a sovereign permits itself to be sued upon certain conditions, compliance therewith is a jurisdictional matter and a suit against the sovereign may not be maintained unless such conditions are complied with. Chicago, Milwaukee & St. Paul Ry. Co. v. State, 1881, 53 Wis. 509, 10 N.W. 560. Cases cited 42 A.L.R. 1477, 1478.

Confessedly the plaintiff Nichols did not comply with the provisions of sec. 285.01. He contends that he is excused from compliance by the provisions of sec. 103.39(3), the material part of which is as follows: “In an action by an employe against his employer on a wage claim, no security for payment of costs shall be required.”

[2] The section is a part of ch. 103 entitled “Employment Regulations”, under Title 13, Regulation of Industry.

Sec. 103.01(3) provides: “The term ‘employer’ shall mean and include every person, firm, corporation, agent, manager, representative, or other person having control or custody of any employment or place of employment, as herein defined.”

This definition does not, however, apply to sec. 103.39(3). The state, counties, cities, villages and towns are not included in this definition.

By sec. 102.04, being the workmen's compensation act, it is provided:

“The following shall constitute employers subject to the provisions of this chapter, within the meaning of section 102.03:

“(1) The state, each county, city, town, village, school district, sewer district, drainage district and other public or quasi-public corporations therein.

“(2) Every person, firm and private corporation (including any public service corporation), who usually employs three or more employes.”

Sec. 101.01(3), which is a part of ch. 101 entitled “Industrial Commission,” provides that as used in secs. 101.01 to 101.29: “The term ‘employer’ shall mean and include every person, firm, corporation, state, county, town, city, village, school district, sewer district, drainage district and other public or quasi-public corporations as well as any agent, manager, representative or other person having control or custody of any employment, place of employment or of any employe.”

In ch. 108, relating to unemployment reserves and compensation, the term is differently defined. Sec. 108.02(4) (a) provides: “‘Employer,’ except where the term by its context clearly applies to each employer of one or more individuals in Wisconsin, means any...