¶1 (dissenting) — I dissent.
¶2 The reasoning in the school district cases cited and relied upon in the majority opinion is not applicable to the case at bar.
¶3 In those cases, the fundamental principle underlying the reasoning and the decisions was that a sovereign state or any of its subdivisions can only be sued by consent of the sovereign. That consent can be given or taken away at will. It can be denied as well after a tortious injury as before, for the reason that there never was a common law liability lying against the sovereign or its subdivisions. As was said in the Bailey case, quoted in the majority opinion:
“. . . the right to maintain a tort action against a municipality is not a vested right in property. The right to sue the school district, before the passage of the act of 1917, rested entirely upon the statute giving such right, and to repeal that statute destroys no vested rights. ...
“The appellant had no vested right, prior to judgment, in a policy of legislation which entitled him to insist that that policy be maintained for his benefit.”
¶4 In that decision there was quoted with approval from Beers v. Arkansas, 61 U. S. (20 How.) 527, the following:
“It is an established principle of jurisprudence in all civilized nations that the sovereign cannot be sued in its own courts, or in any other, without its consent and permission; but it may, if it thinks proper, waive this privilege, and permit itself to be made a defendant in a suit by individuals, or by another state. And as this permission is altogether voluntary on the part of the sovereignty, it follows that it may prescribe the terms and conditions on which it consents to be sued, and the manner in which the suit shall be conducted, and may withdraw its consent whenever it may suppose that justice to the public requires it.”
¶5 The above cited and quoted case involved the right to repeal a law giving a right of action against the *166 state while such action was pending, thereby abating the action.
¶6 Here, there is no question of sovereignty involved. The original workmen’s compensation act of 1911 authorized an election on the part of an injured person, who was under the provisions of the workmen’s compensation act, to bring an action against a third person committing tortious injury and a sort of collaboration with the state. That had the effect of reserving a common law action to such injured workman injured by third persons referred to in the decisions cited in the majority opinion as “except as in the act otherwise provided.”
¶7 . The 1927 amendment, under the provision .quoted in the majority opinion, in case of an injury to a workman due to the negligence or wrong of another not in the same employ, or in case of death to his widow, children or dependents, grants the right to elect whether to take under the act or to seek a remedy against such other, etc.
¶8 ■■The effect of this amendment was to broaden the original statute of 1911 reserving the common law right of action to such injured workman. If there can be any vested right to a remedy, it would seem that the original act of 1911 and the amendment of 1927 gave it. It was not an instance where the right granted could be withdrawn at will before or after an injury, as in the school district cases.
¶9 For these reasons, in my opinion, the judgment below should be reversed.