Chicago, Milwaukee & St. Paul Railway Co. v. State, 53 Wis. 509

53 Wis. 509 | Wis. | 1881

Lyon, J.

The constitution ordains that “ the legislature shall direct by law in what manner and in what courts suits may be brought against the state.” Art. IY, sec. 27. It is provided by statute (R. S., 826, sec. 3200), that “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.” Were this action otherwise within the statute, the complaint fails to aver a refusal by the legislature to allow the plaintiff’s claim to be relieved from the payment of the unpaid license fee demanded by the state treasurer. The effect of the statute is to make the refusal of the legislature to allow the claim a condition precedent to the right of the claimant to maintain an action on his claim. This is a reasonable restriction upon the right to sue. There are various statutes imposing restrictions of the same character upon the right to maintain actions against counties, towns and cities. R. S., 241, sec. 676; id., 280, sec. 824. These and like statutes have been uniformly upheld by this court. Wright v. Town of Merrimac, 52 Wis., 466, and cases cited. In Benware v. Pine Valley, decided herewith, we hold that the complaint in such an action which fails to aver performance of the condition precedent is fatally defective, and that the defect is reached by a general demurrer. Hence, in any view of the present case, the demurrer to the complaint is well taken.

But we are clearly of the opinion that this action is not authorized by section 3200. It is manifest from the language of the section, and from the whole chapter of which the section is a part, that the statute relates only to actions upon those ordinary claims against the state which, if valid, render the state a debtor to the claimant; and not to an equitable action brought directly against the state to restrain it from perpetrating an alleged threatened injustice.

It remains to be determined whether the action can be maintained independently of the statute. It cannot be maintained unless the right to bring it is given in the provision of the constitution above quoted. The mandate contained therein is to the legislature to direct by law how and in what courts suits may be brought against the state. It may be, as the learned counsel for the plaintiff very forcibly argued, that the object and purpose of the provision was to give a remedy against the state for any actual or threatened wrong, as broadly as the law gives a remedy against an individual for the same cause. Yet the provision calls for the interposition of the legislature to make the right available. It is not self-executing, and manifestly was not so intended. Otherwise, the mandate would have been to the courts instead of the legislature, and the consent of the state to be sued for the same causes which would support actions against individual citizens, would have been expressly given. We are of the opinion, therefore, that an action of any kind directly against the state cannot be maintained in this or any other court, unless it is authorized by some statute of the state.

This is no new doctrine in this court. In Bull v. Conroe, 13 Wis., 233, the court had under consideration the clause of the constitution which ordains that “ the privilege of the debtor to enjoy the necessary comforts of life shall be recognized by wholesome laws, exempting a reasonable amount of property from seizure or sale for the payment of any debt or liability hereafter contracted.” Const., art. Í, sec. 17. It was substantially held in that case that, should the legislature fail to obey the mandate of that clause, the courts cannot supply the deficiency; in other words, that such failure would be a wrong for which there is no judicial remedy. The case seems to be precisely in point on the question here involved.

The demurrer must be sustained on the first ground assigned; hence, we do not consider the case on the merits.

By the Court.— Demurrer sustained.