Wadhams Oil Co. v. State

• Decision Date: 06 December 1932
• Citation: 245 N.W. 646,210 Wis. 448
• Parties: WADHAMS OIL CO. v. STATE.
• Court: Wisconsin Supreme Court

210 Wis. 448

245 N.W. 646

WADHAMS OIL CO.

v.STATE.

Supreme Court of Wisconsin.

Dec. 6, 1932.

Original action by the Wadhams Oil Company against the State of Wisconsin.--[[[By Editorial Staff.]

Action dismissed.Fish, Marshutz & Hoffman, of Milwaukee (I. A. Fish, J. H. Marshutz, and W. H. Voss, all of Milwaukee, of counsel), for plaintiff.

John W. Reynolds, Atty. Gen., and Herbert H. Naujoks, Asst. Atty. Gen., for the State.

H. H. Thomas and Olin & Butler, all of Madison, amici curiæ.

ROSENBERRY, C. J.

This action was begun in the Supreme Court to recover on two causes of action, on account of money required to be paid to the state for the reason as the state claims that the plaintiff company is subject to the provisions of chapter 22 of the Laws of 1931. The action was begun by filing in the office of the clerk of this court a complaint and service of notice upon the defendant of the filing of the complaint and requiring the defendant to answer within twenty days, this apparently upon the theory that the present action is one of the class of actions dealt with by chapter 285, Wis. Stats.

Section 285.01 provides: “It shall be competent for any person deeming himself aggrieved by the refusal of the legislature to allow any just claim against the state to commence an action against the state by filing a complaint, setting forth fully and particularly the nature of such claim, with the clerk of the supreme court either in term time or vacation,” etc.

There is no allegation in the complaint that the causes of action sued upon arose out of the refusal of the Legislature to allow any just claim. If this court has jurisdiction of this action, it must be found in some other provision of the statute or some provision of the Constitution.

All parties concede that no action may be maintained against the state except by and with its consent. Section 5 (12) of chapter 29, Laws of Special Session 1931, provides: “No order shall be issued by any court to restrain or delay the enforcement of this section at the suit of the person, firm, corporation or association required to procure a license hereunder, but such aggrieved person shall pay the license fee as and when due, and if paid under protest may at any time within two years from the date of such payment sue the state in an action at law to recover the fee so paid, with legal interest thereon, from the date of payment.”

It is apparent that under this section suit may be maintained against the state without filing a claim against the state for presentation to the Legislature. By the enactment of the quoted portion of the section the Legislature no doubt intended to waive to the fullest degree the immunity of the state from suit and to make it subject to suit in an ordinary action at law as and for money had and received. By the enactment of this provision, the state created a new class of cases in which an action may be maintained against the state, but it did not designate the court in which the action should be brought nor the venue of the action.

Since the decision in Dickson v. State (1853) 1 Wis. 122, this court has consistently held that the third section of the seventh article of the Constitution, which provides that the “supreme court, except in cases otherwise provided in this constitution, shall have appellate jurisdiction only, which shall be coextensive with the state; but in no case removed to the supreme court shall a trial by jury be allowed, * * *” was subject to the provisions of section 27 of article 4, which provides that “the legislature shall direct by law in what manner and in what courts suits may be brought against the state.” Northwestern Mutual Life Ins. Co. v. State (1916) 163 Wis. 484, 155 N. W. 609, 158 N. W. 328.

It is only by the exercise of the power conferred upon the Legislature by section 27 of article 4 that this court may take jurisdiction of actions other than those which involve the use of the prerogative writs. The extent of the jurisdiction conferred upon this court in cases where the state is a party is determined by the Legislature. When, in chapter 285, the Legislature provided that in cases where the Legislature had refused to allow a just claim, an action might be maintained against the state in this court, that determined the limits of this court's jurisdiction under the Constitution. Chapter 22 of the Laws of 1931 nowhere contains a provision to the effect that suits to recover fees paid under that chapter may be brought in the Supreme Court for the reason no doubt that to require actions to be brought in this court, in hundreds of cases which this court is not equipped to try, would be detrimental to the public interest. Therefore this court has no jurisdiction of such actions.

The Legislature must have intended, the state having waived its immunity to action by the provision quoted above, that the action might be brought in some court. There are in our judicial system several courts having jurisdiction over the subject-matter of such an action; that is, one to recover judgment as and for money had and received. Principal among these courts is the circuit court. Section 261.01 provides:

“The proper place of trial of civil actions is as follows, respectively: * * * Actions against the state.

Ninth. The place of trial of all actions authorized to be brought against the state or any of the state officers in their official capacity shall be Dane county [Wisconsin].”

We turn for a moment to a consideration of a somewhat analogous case. By chapter 624, Laws 1913, the Legislature authorized one Apfelbacher (Apfelbacher v. State, 160 Wis. 565, 152 N. W. 144) “to bring suit in such court or courts and in such form or forms as he may be advised for the purpose of settling and determining all controversies which he may now have with the state of Wisconsin, or its duly authorized officers and agents. * * *” Under the provisions of that section an action was maintained by Apfelbacher against the state in the circuit court for Waukesha county. A demurrer ore tenus to the complaint was sustained from which an appeal was taken to this court, where it was held that although the state had waived its immunity, it had not admitted its liability and its liability was to be determined in accordance with the general principles of law applicable. The case does not throw much light upon the present situation, except that it seems to have been conceded, and rightly so, that the action was properly brought in Waukesha county. It was further held that the waiver of immunity by the state was at its pleasure and that it might waive immunity in one case and not in another without denying to citizens the equal protection of the law. The claim set up in this case by the Attorney General that the plaintiff should have filed his claim with the Legislature as required by chapter 285 does not seem to have been made in that case, probably because of the broad and explicit language used in the act.

[1] This case being one which does not fall within the class of cases dealt with in chapter 285, and the state by the enactment of chapter 29 having clearly waived its immunity to suit in the class of cases therein described, it is held that it thereby consented to be sued in a proper court having jurisdiction of the subject-matter. However, section 261.01(9) having provided that the place of trial of all actions brought against the state shall be in Dane county, an action can only be maintained in some court...