Green

This cause .was decided by Department 1 of this court, in an opinion filed July 14, 1886, affirming the judgment of the court below. A rehearing in bank was thereafter ordered, and the case again comes under review.

1. The. act of March 12, 1885, authorizing the commencement of this action by plaintiffs against the state, simply empowered them to bring a suit, and to make the defendant a proper party thereto. It did not create for them a cause of action, or waive, on the part of the defendant, any defense which it had to such action. The state submitted itself to the jurisdiction of the court, subject to its right to interpose any defense which, as a sovereign state, it might lawfully urge to the action when instituted. The contention that the act of March 12, 1885 (Stats. 1885, p. 107), amounts to a legislative concession of the liability of the state, is not supported by sound reason. Were the state to pass a general law permitting all persons at will to institute suits against it, surely it would not be contended that such an act conceded the existence of a cause of action in favor of all persons bringing suits.

Ordinarily, and in theory, a sovereign state is presumed to be…