Yiuje, J.
Plaintiff’s theory upon which the complaint is based is thus tersely stated by his counsel:
“When a sovereign state departs from its ordinary political and police duties by entering upon the exercise of functions at the most only of a giiasi-public character and succeeds to private rights through grants, under which a citizen suffers damage resulting from the wrongful act of the agents of the state, which, if committed by the state’s predecessor in title, would have caused liability, such act causes like liability upon the state, subject only to the inability of the person damni-fied to commence suit, but upon that permission being granted the liability of the state is to be governed by the same rules which would be applicable to private parties.”
This statement is followed by calling attention to the importance of the question raised in view of the modern tendency of many states to depart from the settled and historic lines •of public activities and to enter upon those heretofore committed to corporate or personal initiative. The question of the equity of the state claiming exemption from liability for torts committed by its officers or agents is then discussed at length in an able and convincing manner, and attention is called to many cases in which states, notably New York, have by legislative enactments made themselves liable for the tor-tious conduct of their servants or agents in the conduct of certain enterprises — especially canals. To these may be added our Workmen’s Compensation Act, sec. 2394 — 4, Stats. 1913, whereby the state makes itself respond in damages for injuries to the servants in its employ.
Were the question -of liability of the state for an injury like the one under consideration to be decided for the first time in accordance with ordinary principles of equity it may well be that the'action would be sustained. But the question is not an open one in our state. Municipalities, as well as the state itself, have long been held immune from liability for the tortious acts of their agents and officers while engaged in the discharge of a governmental function. Kelley v. Milwau[573]*573kee, 18 Wis. 83; Hayes v. Oshkosh, 33 Wis. 314; Wallace v. Menasha, 48 Wis. 79, 4 N. W. 101; Schultz v. Milwaukee, 49 Wis. 254, 5 N. W. 342; Little v. Madison, 49 Wis. 605, 6 N. W. 249; Crandon v. Forest Co. 91 Wis. 239, 64 N. W. 847; Kuehn v. Milwaukee, 92 Wis. 263, 65 N. W. 1030; Houston v. State, 98 Wis. 481, 74 N. W. 111; Kempster v. Milwaukee, 103 Wis. 421, 79 N. W. 411; Folk v. Milwaukee, 108 Wis. 359, 84 N. W. 420; Lowe v. Conroy, 120 Wis. 151, 97 N. W. 942; Manske v. Milwaukee, 128 Wis. 172, 101 N. W. 377; Higgins v. Superior, 134 Wis. 264, 114 N. W. 490; Evans v. Sheboygan, 153 Wis. 287, 141 N. W. 265; Bruhnke v. La Crosse, 155 Wis. 485, 144 N. W. 1100; Engel v. Milwaukee, 158 Wis. 480, 149 N. W. 141; Bernstein v. Milwaukee, 158 Wis. 576, 149 N. W. 382. In view of the long unbroken line of decisions in onr own state it is needless to go elsewhere for authority. Were it needed, reference may "be had to the long list of cases cited by the attorney general .and incorporated by the reporter in his synopsis of the state’s brief.
Counsel for plaintiff argues that the propagation of fish by the state is at best a ^msi-public function and not a governmental one. In this we are unable to concur. It is undertaken and carried on for the general welfare of the people of the state. No profit accrues directly to the state as a sovereignty from its engaging therein. On the contrary, public expense is connected therewith that can be justified only on the ground of a general public benefit. This state and many ■others, as well as the sovereigns of most civilized countries, have from’ time immemorial exercised full jurisdiction and •control over fish and game. The right of the people of this state to enjoy the full benefit of both in or over public waters has been fully vindicated in Willow River Club v. Wade, 100 Wis. 86, 76 N. W. 273, and in Diana S. Club v. Husting, 156 Wis. 261, 145 N. W. 816. So it must be considered that the state was engaged in a governmental function in conducting [574]*574the fish hatchery and hence not liable for the negligence of its officers, the fisheries commission. Whether it would be liable if the propagation of fish were considered a proprietary instead of a governmental enterprise need not be decided, and that question is expressly reserved for future consideration.
Oh. 624 of the Laws of 1913, which authorizes the bringing of this suit, reads as follows:
“Section 1. Authority is hereby given to George Apfel-bacher, of the town of Summit, Waukesha county, Wisconsin, 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, relative to the mill property of said George Apfelbacher, the fish hatchery of the state of Wisconsin on the Bark river, and the mill property of Evan Humphrey at the lower end of Nagawicka Lake, and relative to the use of the waters of said Bark river and Nagawicka Lake, all in the county of Wau-kesha, Wisconsin/’
Plaintiff claims that by the enactment of this law the legislature admitted liability on the part of the state for the acts of its officers and that the suit now stands just as it would stand between private parties. It is difficult to see how the act does or was intended to do more than remove the state’s immunity from suit. It simply gives authority to commence suit for the purpose of settling plaintiff’s controversies with the state. Nowhere in the act is there a whisper or suggestion that the court or courts in the disposition of the suit shall depart from well established principles of law, or that the amount of damages is the only question to be settled. The act opened the door of the court to the plaintiff. It did not pass upon the question of liability, but left the suit just where it would be in the absence of the state’s immunity from suit. If the legislature had intended to change the rule that obtained in this state so long and to declare liability on the part of the state, it would not have left so important a matter to [575]*575mere inference, but would have clone so in express terms. Murdock P. G. Co. v. Comm. 152 Mass. 28, 24 N. E. 854.
That nonliability for torts arising out of the prosecution of governmental functions is based upon grounds of public policy distinct from the immunity of the sovereign from suit is apparent from the fact that such nonliability is invoked in favor of municipalities subject to suit by private parties. No doubt such policy may originally have sprung in a large measure from the conception that the sovereign can do no wrong, but it has a more modem and tangible basis upon which to rest. The doctrine of respondeat superior, while an ancient one in English law, is not one that rests upon direct primary principles of justice. These principles require that the person actually committing the wrong should alone respond in damages. The doctrine rests rather upon secondary principles deduced from primary conceptions of justice.
Free access — add to your briefcase to read the full text and ask questions with AI
Yiuje, J.
Plaintiff’s theory upon which the complaint is based is thus tersely stated by his counsel:
“When a sovereign state departs from its ordinary political and police duties by entering upon the exercise of functions at the most only of a giiasi-public character and succeeds to private rights through grants, under which a citizen suffers damage resulting from the wrongful act of the agents of the state, which, if committed by the state’s predecessor in title, would have caused liability, such act causes like liability upon the state, subject only to the inability of the person damni-fied to commence suit, but upon that permission being granted the liability of the state is to be governed by the same rules which would be applicable to private parties.”
This statement is followed by calling attention to the importance of the question raised in view of the modern tendency of many states to depart from the settled and historic lines •of public activities and to enter upon those heretofore committed to corporate or personal initiative. The question of the equity of the state claiming exemption from liability for torts committed by its officers or agents is then discussed at length in an able and convincing manner, and attention is called to many cases in which states, notably New York, have by legislative enactments made themselves liable for the tor-tious conduct of their servants or agents in the conduct of certain enterprises — especially canals. To these may be added our Workmen’s Compensation Act, sec. 2394 — 4, Stats. 1913, whereby the state makes itself respond in damages for injuries to the servants in its employ.
Were the question -of liability of the state for an injury like the one under consideration to be decided for the first time in accordance with ordinary principles of equity it may well be that the'action would be sustained. But the question is not an open one in our state. Municipalities, as well as the state itself, have long been held immune from liability for the tortious acts of their agents and officers while engaged in the discharge of a governmental function. Kelley v. Milwau[573]*573kee, 18 Wis. 83; Hayes v. Oshkosh, 33 Wis. 314; Wallace v. Menasha, 48 Wis. 79, 4 N. W. 101; Schultz v. Milwaukee, 49 Wis. 254, 5 N. W. 342; Little v. Madison, 49 Wis. 605, 6 N. W. 249; Crandon v. Forest Co. 91 Wis. 239, 64 N. W. 847; Kuehn v. Milwaukee, 92 Wis. 263, 65 N. W. 1030; Houston v. State, 98 Wis. 481, 74 N. W. 111; Kempster v. Milwaukee, 103 Wis. 421, 79 N. W. 411; Folk v. Milwaukee, 108 Wis. 359, 84 N. W. 420; Lowe v. Conroy, 120 Wis. 151, 97 N. W. 942; Manske v. Milwaukee, 128 Wis. 172, 101 N. W. 377; Higgins v. Superior, 134 Wis. 264, 114 N. W. 490; Evans v. Sheboygan, 153 Wis. 287, 141 N. W. 265; Bruhnke v. La Crosse, 155 Wis. 485, 144 N. W. 1100; Engel v. Milwaukee, 158 Wis. 480, 149 N. W. 141; Bernstein v. Milwaukee, 158 Wis. 576, 149 N. W. 382. In view of the long unbroken line of decisions in onr own state it is needless to go elsewhere for authority. Were it needed, reference may "be had to the long list of cases cited by the attorney general .and incorporated by the reporter in his synopsis of the state’s brief.
Counsel for plaintiff argues that the propagation of fish by the state is at best a ^msi-public function and not a governmental one. In this we are unable to concur. It is undertaken and carried on for the general welfare of the people of the state. No profit accrues directly to the state as a sovereignty from its engaging therein. On the contrary, public expense is connected therewith that can be justified only on the ground of a general public benefit. This state and many ■others, as well as the sovereigns of most civilized countries, have from’ time immemorial exercised full jurisdiction and •control over fish and game. The right of the people of this state to enjoy the full benefit of both in or over public waters has been fully vindicated in Willow River Club v. Wade, 100 Wis. 86, 76 N. W. 273, and in Diana S. Club v. Husting, 156 Wis. 261, 145 N. W. 816. So it must be considered that the state was engaged in a governmental function in conducting [574]*574the fish hatchery and hence not liable for the negligence of its officers, the fisheries commission. Whether it would be liable if the propagation of fish were considered a proprietary instead of a governmental enterprise need not be decided, and that question is expressly reserved for future consideration.
Oh. 624 of the Laws of 1913, which authorizes the bringing of this suit, reads as follows:
“Section 1. Authority is hereby given to George Apfel-bacher, of the town of Summit, Waukesha county, Wisconsin, 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, relative to the mill property of said George Apfelbacher, the fish hatchery of the state of Wisconsin on the Bark river, and the mill property of Evan Humphrey at the lower end of Nagawicka Lake, and relative to the use of the waters of said Bark river and Nagawicka Lake, all in the county of Wau-kesha, Wisconsin/’
Plaintiff claims that by the enactment of this law the legislature admitted liability on the part of the state for the acts of its officers and that the suit now stands just as it would stand between private parties. It is difficult to see how the act does or was intended to do more than remove the state’s immunity from suit. It simply gives authority to commence suit for the purpose of settling plaintiff’s controversies with the state. Nowhere in the act is there a whisper or suggestion that the court or courts in the disposition of the suit shall depart from well established principles of law, or that the amount of damages is the only question to be settled. The act opened the door of the court to the plaintiff. It did not pass upon the question of liability, but left the suit just where it would be in the absence of the state’s immunity from suit. If the legislature had intended to change the rule that obtained in this state so long and to declare liability on the part of the state, it would not have left so important a matter to [575]*575mere inference, but would have clone so in express terms. Murdock P. G. Co. v. Comm. 152 Mass. 28, 24 N. E. 854.
That nonliability for torts arising out of the prosecution of governmental functions is based upon grounds of public policy distinct from the immunity of the sovereign from suit is apparent from the fact that such nonliability is invoked in favor of municipalities subject to suit by private parties. No doubt such policy may originally have sprung in a large measure from the conception that the sovereign can do no wrong, but it has a more modem and tangible basis upon which to rest. The doctrine of respondeat superior, while an ancient one in English law, is not one that rests upon direct primary principles of justice. These principles require that the person actually committing the wrong should alone respond in damages. The doctrine rests rather upon secondary principles deduced from primary conceptions of justice. It rests upon the idea that where an enterprise is carried on for the financial benefit of a master it is considered just that he should answer for the tort of his servant in conducting it because he is deemed to profit financially by its being carried on. Eor the same reason municipalities carrying on proprietary enterprises for gain, as for instance the sale of water to its inhabitants, are held to respond in damages for the tort of their servants in so doing (State Journal P. Co. v. Madison, 148 Wis. 396, 134 N. W. 909), while if they act in a governmental capacity where there is no question of financial profit but only a service rendered for the general welfare of its inhabitants, as the maintenance of a public playground, there is no liability for the negligence of its agents. Bernstein v. Milwaukee, 158 Wis. 576, 149 N. W. 382. So it will be observed that the doctrine of respondeat superior has by courts been applied to public subdivisions of the state only in those cases where the municipality has been engaged in a proprietary enterprise which may or does result in a financial benefit. The legislature from time to time has made exceptions [576]*576to this rule, notably in the case of liability of towns and cities for defective highways. Whether further exceptions are desirable is a question of legislative policy and not a matter of judicial construction.
A denial of the application of the doctrine of respondeat superior to the state when exercising a governmental function does not leave a person injured remediless. He has his cause of action against the person or persons actually committing the wrong. Morrison v. Fisher, post, p. 621, 152 N. W. 475. It merely refuses to extend the master’s liability to cases where he does not profit by the enterprise he is engaged in, leaving the injured party free to prosecute his suit against the person or persons who actually committed the tort. In the instant case the state and the commissioners of fisheries in their official capacity only are sued. Ho attempt is made to charge them with liability as individuals.
The attorney general argues that ch. 624, Laws of 1913, is unconstitutional because it contravenes sec. 1 of the Eour-teenth Amendment to the constitution of the United States, which provides that “Ho state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state . . . deny to any person within its jurisdiction the equal protection of the laws.” This act it is claimed grants to plaintiff a special privilege, namely, that of the right to sue the state — a privilege not common to all its creditors except such as come under the provisions of see. 3200, Stats. 1913. It is conceded by both parties that under the rule announced in Houston v. State, 98 Wis. 481, 74 N. W. 111, the present case is not covered, by sec. 3200, as that does not include demands based upon the tortious acts of agents or officers of’the state.
As has already been held, .this act does not enlarge the plaintiff’s claim in any manner. The rights which he has flowed from the common law and not from this act. It merely removed the bar to suit from the state — permitting plaintiff [577]*577to assert against it whatever rights he had, — there being nothing added to such rights hy the act itself. Waiver of immunity from suit hy a state, in such cases as the legislature may deem proper, cannot he held to he a denial of the equal protection of the laws to persons within its jurisdiction. The immunity from suit is a privilege which a sovereign may waive or refuse to waive at its pleasure. No constitutional right of its residents is violated whatever its action in that regard may he. The state has power to settle claims against it hy process in court pursuant to sec. 27, art. IV, of the constitution, which provides that “The legislature shall direct hy law in what manner and in what courts suits may he brought against the state,” hy direct legislative appropriation, as is often done, or hy special leave granted as in this case. The provisions of the federal constitution quoted were not intended to hamper or circumscribe the manner in which a state should adjust claims against it. As hearing upon this question see Comm. v. Jackson, 5 Bush (Ky.) 680; Comm. v. Haly, 106 Ky. 716, 51 S. W. 430; and Carter v. Louisiana, 49 La. Ann. 1487, 22 South. 400.
By the Court. — Judgment affirmed.
Baemes and KERwin, JJ., dissent.