{dissenting). Appellant town, the designated agent of the state for that purpose, was performing the governmental duty of repairing the public highway, and for negligence in so doing there is no liability to respond in damages except by express statute. Uecker v. Clyman, 137 Wis. 38, 39, 118 N. W. 247; Bremer v. Milwaukee, 166 Wis. 164, 167, 164 N. W. 840.
Only because there was no prior written permit authorizing the employment of the minor by the town, it is now compelled to .pay treble compensation, and this under sub. (7) (a), sec. 102.09, Stats., providing for such treble damages if the minor be of permit age (which clearly means the age at which he may lawfully be employed provided permission is obtained), and at the time of the accident he is employed without a written permit issued pursuant to sec. 103.05. There is here presented no 'question of employment of one who was under the age at which employ*97ment in such work is absolutely and under all conditions prohibited, and the contract of employment was valid.
Manifestly if no provision is made'in said sec. 103.05-for a written permit in such a particular instance there can be no violation of the statute here invoked. To provide for treble damages for failing to obtain a permit would reasonably and naturally raise the presumption that there must be provision in such sec. 103.05 for the issuing of such permit. Otherwise it is a requirement for a vain and idle ceremony. By said sec. 103.05’in ch. 103, which is confined to employment regulations, the terms employment, employer, employee, etc., are to be construed as defined in sec. .101.01, part of ch. 101, providing for the Industrial Commission. By sub. (3), sec. 101.01, in defining “employer” no reference is made to the state, county, town, city, or village, or any municipal corporation as being an employer; by sub. (13) of the same sec. 101.01, however, when it comes to defining the term -“owner of public buildings” there is express reference to just such municipal bodies and specifically includes towns. If it had been intended, therefore, to include towns within the cla.ss of employers who are required to obtain permits, there can be no doubt but that it would have been expressed in sub. (3) as it is in sub. (13) of sec. 101.01.
This'view is, I think, emphasized by the fact that sub. (7) (b), immediately. following the one here relied upon, viz. sub. (7) (a), sec. 102.09, makes express provision for the same treble damages to one of permit age or over employed at prohibited employment.
No contention is made or well could be made that this particular employment was of such a nature that it was dangerous to the health of a boy of almost seventeen years, capable of earning an average annual wage of $945, or that the Commission had so 'determined or could, with any propriety, so determine, if the question had'been presented to it.
The amendment subsequent to this injury by ch. 384 of *98the Laws of 1925, quoted in the majority opinion, which inserted the word “illegally,” to my mind indicates that it was intended rather to make' more certain and definite the legislative' intent than to change the law as it stood at the time of this injury. If the town had asked for a written permit prior to the starting of the minor at the employment, the only proper answer that it could then have received would have been that there was no provision requiring such a permit by a town and that such employment was legal.
Being but an arm of the state in performing a governmental function, I think the town can rely upon the established rule that general laws apply to it only when in its favor, and express provision to that effect must appear to create a liability against it. Sullivan v. School Dist. 179 Wis. 502, 507, 191 N. W. 1020; Milwaukee v. McGregor, 140 Wis. 35, 37, 121 N. W. 642; State v. Milwaukee, 145 Wis. 131, 135, 129 N. W. 1101. ,
The statute here creates a liability under a classification expressly declared to be of employers, not of minors (Brenner v. Heruben, 170 Wis. 565, 573, 176 N. W. 228), and it should appear on the face of the statute that the town, here an arm of the state and placed -under the workmen’s compensation act by statute and not by choice, is the kind of employer liable for such increased compensation. The reasoning and logic in the opinion by Mr. Justice Owen in Rusk Farm D. Dist. v. Industrial Comm. 186 Wis. 232, 202 N. W. 204, showing that a drainage district is not under the workmen’s compensation act, if applied here would prevent, as I see it, the result reached by the majority.
Stevens, J., took no part.A motion for a rehearing was denied, without costs, on October 12, 1926.