Amy v. WatertownAmy v. Watertown
delivered the opinion of the court.
The principal question in this case is, whether the defendant, the city of Watertown, was served with process in the suit so as to give the court below jurisdiction over it.. In order to understand the bearing of the' facts' of the cáse, it will be necessary to give a brief abstract of the laws-of Wisconsin which relate to it, and these are mostly to be found in the
By' the temporary Process Act of September 29th, 1789, 1 Stat. 93, if not otherwise provided, the forms of writs and executions, (except their style,) and modes of process in the Circuit and District Courts, in suits at common law, were directed to be the same as in the Supreme Courts of the States respectively. By the permanent Process Act of May 8,1792,1 Stat. 275, it was enacted that the forms оf writs, executions and other process, and the forms and modes of proceeding, in suits at common law, should be the same as directed by the act of 1789, subject to such alterations and additions as the said courts should deem expedient, or to such regulations, as the Supreme Court of the United States’ should think proper by rule to prescribe to any Circuit or District Court. So that the practice in United States courts, in the old States, was made to conform to the state'practice, as it was in 1789, subject to alteration by rule of court. In 1828 a law was passed adopting for the Federal' courts in the new States, admitted since 1789, the forms of process, and' forms and.modes of proceeding of the highest courts of those States respectively, as then existing, subject to alteration- by" the courts themselves or the Supreme'Court of the United States. ■ 4 Stat. 278’. By the act of .August 1, 1842, the provisions, of the act of 1828 were extended to the States admitted in the'intermediate time...
■ This review of the statutes shows that after 1792 it -was
But the statute of 1872 is peremptory, and whatever belongs to the three categories of practice, pleading and forms and modes of proceeding, must conform to the. state law and the practice of the state courts, except where Congress itself has legislated upon a particular subject and prescribed a rule. Then, of course, the act Of Congress is to be followed in preference tо the laws of the State. With regard to the mode of serving mesne process upon corporations and other persons, Congress has not laid down any rule; and hence the state law. and practice must be followed. There can be no doubt, we think, that the mode of service of process is within the categories named in the act. It is part of the practice and mode of proceeding in a suit.
Assuming, therefore, that the question is one to be governed by the local or state law, we proceed to give an abstract of the charter of Watertown, and such other laws of Wisconsin as bear upon the subject; We find this mostly made'to our hand in the .brief of the plaintiffs, in error, taken from the consolidated charter of 1865, and it is as follows:
Chaptеr i, § 3. “ The said city shall be divided into seven wards.”
Section 4. “ The corporate authority of said city shall be vested in one principal officer, styled the mayor, in one. board of aldermen-, consisting of two members from each ward, who, with the mayor, shall be denominated the. -common council. -. .”
Section 5. “ The annual election for ward and city officers shall be held on the first Tuesday of April of each year. . . '
Section 6. . . All elective. officers, except . ■ . . aldermen, shall, unless- otherwise provided, hold -their respective offices for one year and until their successors are elected and qualified. ...”
Section 7. “ In the event .of a vacancy in the office of mayor, alderman, . . . the common council shall order a new election, . .”
Chaptеr 2, § 2. “ The mayor, when, present, shall preside over
Section 3. “ At the first meeting of the common council in each year, or as soon thereafter as may be, they shall proceed to elect, by ballot, one of their number president; and in the absence of the mayor the said president shall preside over the meeting of the common council, and during the absence of the mayor from thе city, or his inability from any cause to discharge the duties of his 'office, the president shall execute all the powers and discharge all the duties of mayor. In case the mayor and president shall be absent from any meeting of the common council, they shall proceed to elect a temporary presiding officer, who, for the time being, shall discharge the duties of mayor. The president, or temporary presiding officer, while presiding over the council, or performing the duties of mayor, shall be styled acting mayor,’ and acts performed by them shall have the same force and validity as if performed by the mayor.”
Chapter 3, § 3. “ The common council shall have the mafTIagement and control of the finances and of all the property of the city, and shall likewise, in addition to the powers herein vested in them, have full power to make, enact, ordain, establish, publish, enforce, alter, modify, amend and repeal all such ordinances, rules and by-laws for the government and good order of the city, for the suppression of vice and immorality, for the prevention of crime, and for the benefit of trade, commerce and health. . . .”
The common council is then given in twenty-six sections, the usual powers which are commonly vested in the common councils of cities.
Chapter 5, § 1. “. . . All funds in the treasury . . shall be under the control of the common council, and shall be drawn out upon the order of mayor and clerk, duly authorized by a vote of the common council. ...”
Chapter 9, § 8. “When-any suit or action shall be commenced against said city the service thereof may he made by leaving a copy of the process with the mayor.”
Chapter 61 of the Private and Local laws of Wisconsin for 1867 provides:
Section 1. “ Section seven of the first chapter of said act (an act to .incorporate the city of Wattertown, and the several acts amendatory thereof, chapter 233 of the General Laws of 1865) is hereby amended so that it shall read as follows:
“ In the event of a vacancy in the office of mayor . . . by death, removal, or other disability, the common council shall order a new election. .' . . In case of a vacancy in the office of alderman the mayor may order a new election. .. .”
“. . . Any city officer who shall resign his office shall file with the city clerk his resignation in writing, directed to the mayor, and such resignation shall take, effect from the time of filing the same.”
Chapter 204 of the Private and Local laws of Wisconsin for 1871 provides :
Section 1. “ The senior aldermen of each ward of the city of Watertown shall constitute a board of street commissioners, who are hereby authorized, subject to the regulation and control of the common council, to audit and allow accounts against the city, . . . and when allowed, orders on the treasury shall issue therefor, and in case of vacancy in the office of mayor, and thеre is no president of the common council to act, said orders may be signed by the chairman of said board and the city clerk. The city clerk shall be the clerk of said board, and shall, keep record of its proceedings. The mayor may preside at the meetings of said board, and they may elect a chairman who shall preside in his absence. . . . Said board shall have all the powers conferred upon the common council by the city charter in relation to streets
Section 2. “ In case of vacancy in the office of aldеrman in any of the wards, the aldermen remaining in office shall have and exorcise all the powers of street commissioners of thé ward. The resignation of the mayor shall be in writing, directed to the common council or city clerk, and filed with' the city clerk, and shall take effect at the time of filing', the same.” ' ■ ,
Ch. 2, Priv. & Loc. 1872, amended said chapter as follows: Section 1. “ The board of. street commissioners of the city of Watertown shall .have all the powers conferred by law upon the common council of said city, in relation to public schools, the police, fire department, nuisances, the regulation of slaughter-houses, and the public health, subject to the regulation and control of said common council. Provided that said board of street cоmmissioners shall have no power of levying taxes for any purpose whatever.”
Chapter 46, of Laws of Wisconsin for 1879, provides:
Section 2. “ The board of street commissioners of said city, and the chairman of said board, shall have concurrent power with the mayor and common council of said, city, in the appointment of inspectors and clerks of election, and shall have all other powers conferred, by law, upon said mayor and common council, subject to the control of said common council, except the power of levying taxes, which they shall not have in any case whatever.”
. Section 3. “ The common council of said city may, in its discretion, in any year, reduce the amount of city taxes levied under section three of chapter two hundred and four of the рrivate and local laws of 1871* and cause a less sum than is levied Tinder said section to be placed in the tax list for collection, for that year, for the several funds of the city.”
By the Revised Statutes of Wisconsin of 1878, § 2637, the manner prescribed by law for service of process on cities generally is, “ by delivering a copy thereof to the mayor and city
We have given these quotations more fully because the plaintiffs in error seemed to regard them as having some importance in the consideration of the case.
The facts as disclosed by the record are briefly as follows: On the' 3d of March, 1873, the plaintiffs, by their attorneys, sued out a summons against the defendant to answer a complaint for a certain money demand within twenty days after service of the summons. On the 6th of March, 1873, the marshal returned that he had that day served the summons on the city by delivering a copy of it -to the city clerk and city treasurer. The defendant appeared specially by its attorney, and moved to set aside the said service on two grounds:
1st. That the summons was not served on the mayor of the city, as required by its charter.
2d. That it was not served on three residents and freeholders of the city, as provided by the rules of the court.
Thereupon the plaintiff filed an affidavit of the marshal, stating that at the time of service of the summons there was no mayor or acting mayor of said city, and had been none since the 14th day of February, 1873 (the writ being dated and issued the third day of March, 1873). The defendant filed a counter affidavit of the city clerk, stating that he had examined the records of the city and the proceedings of the board of street commissioners for the months of January, February, March and April, 1873, and from these it appeared that F. Kusel, mayor of the city, resigned the office of mayor on the 30th of January; that from thence to the 24th of February, Street Commissioner Maak was the chairman of the board of street commissioners and acting mayor of the city; that frоm the 24th of February to the 17th of March, Street Commissioner Prentice was temporary chairman of said board, and acting mayor; and that on the 6th and 8th of March, 1873, feafd Prentice was acting mayor.
It does nоt appear from the record that anything‘further' was done for nearly ten years. On the 23d of * December, 1882, the marshal made return of service of said summons as-follows: • .
“Served on the within-named The City of Watertown by delivering to Wm. H. Rohr, last mayor of said city; Henry Bieber, city clerk; Chas. H. Gardner, city attorney, and Thomas Baxter, last presiding officer (or president or ch’nf’n) of the board of street commissioners of said city of Water-town, each personally a copy of the within summons and by showing each of them this original summons this, 23d day of December, 1882, the office of mayor of said city being vacant and there being no president of the common council or presiding officer thereof in office.”
Thereupon, on June 19,'1883, plaintiffs filed their complaint setting out four bonds of $1000 eаch, dated June 1,1856, issued by the defendant to aid in the construction of the Watertown and Madison Railroad, and payable January 1,1877, with eight per cent interest, payable semi-annually, upon presentation and surrender of the interest warrants or coupons attached to the bond; and setting forth, also, eighty-four of such coupons of $40 each, and demanding judgment for the amount of said coupons, $3360, together with interest at seven per cent on the amount of each coupon from the time it became due.
On the same day, June 19, 1883, plaintiffs filed an affidavit, of no answer or appearance, caused the amount due on the eighty-four coupons to be computed by the clerk, and' there
On the . 27th day of July, 1883, the defendant appeared specially for the purpose, and served notice of motion to set aside the judgment and service on the ground that there had been no service of summons and the court had no jurisdiction of defendant. The motion was based upon the affidavits of Henry Bieber, Thomas Baxter, and William H. Bohr, showing the following facts:
1. That William H. Bohr, designated in the marshal’s return as the “last mayor of said city,”'was elected mayor at the annual municipal election, April 4, 1882, duly qualified and .entered upon the duties of the office, and thereafter, on April '10, 1882, duly resigned the office in writing directed to the common council and filed his resignation with the city clerk, and had not since been mayоr or acting mayor or president of the common council.
2. .That Charles H. Gardner, named in the return, was never attorney for defendant in this action, or authorized to appear or to accept, admit or receive service for it therein.
3. That Thomas Baxter designated in the return as “ last presiding officer (or president or ch’m’n) of the board of street commissioners of said city,” was the senior alderman of the 3d ward, and as such a member of the board of street commissioners of the city, from April 10, 1882, to April 7, 1883.
That but one meeting' of said board was held in November, Í882, and that was. on November 11,1882; that no mayor and' no chairman elected by the board to preside at its meeting in the mayor’s absence, being present, William F. Toss, senior alderman of the 6th ward, and а member of the board, was chosen by a vvoa voce vote of the members, present chairman pro tern., to preside at that particular meeting, which, after the transaction of its business, adjourned on said 11th day of November, 1882.
That there were only three meetings of said board in December, 1882, to wit, regular meetings December 4th and 18th, and a special meeting December 27th; that there being-
That besides said two meetings in December, said Baxter had alternated with other members of said board in being chosen in like manner and under like circumstances temporary chairman to preside at particular meetings of said board, but not at said meeting of December 18th, and’that said board never elected,' chose or appointed him chairman thereof, or chairman to preside at its meetings in the maypFs absence, and that he never was such chairman or .presiding officer, or anything more than merely chairman pro tempore of particular meetings as above.
4. That no copy of the summons had ever been delivered to the mayor of the city, and no summons in the action served on the city or mayor, or anything done towards ..service, except the delivery, December 23, 1882, of four copies, one each to the clerk, said Baxter, Gardner and Bohr, and delivery March 6, 1873, of a copy to Tauck and Meyer, neither of whom was mayor, acting mayor, or president of the common council.
The plaintiff submitted two affidavits of Mr. Winkler, by which it appears:
1. That the book in the city clerk’s office containing the record of the proceedings of the common council and of the board of street commissioners for about five years before January, 1884,- contains a record of the meeting of the. common council, April 11,' 1882, the last entry of which is
. 2. That accounts were audited at said meetings and orders upon the city treasurer drawn therefor on a subsequent day and signed by the commissioner who had been chosen chairman pro tem. at the meeting auditing the accounts, and that the common practice had been to hold meetings of the board evenings, prepare the orders on a subsequent day, but bearing the date of the meeting, and they were then signed by the city clerk and chairman pro tem. chosen at such meeting.
3. That the city clerk said that every alternate Monday had always, for a series of years, been the regular time for meetings of the common council, if there was one, and of the board of street commissioners if there was none.
4. The affiant states further, upon information and belief, that for some years prior to 1879 and since, it has been the constant practice for the common council to hold one meeting after’ the election of aldermen, in April each year, and then, all but the senior aldermen constituting the board of street commissioners, would resign, and the mayor would also resign at the same time.
On the hearing of the motion, May 16, 18.84, the court made an order setting,aside the judgment “ on the ground that the summons herein was not properly served on said defendant, and the court had no jurisdiction thereof.” To review the decision of the court in making that order the plaintiffs in error have sued out the present writ of error.
1. That the court had no jurisdiction or power to vacate the judgment at a subsequent term.
2. That the return of the marshal, showed a valid service which was not changed by the affidavits.
We have no difficulty with regard to the first question rаised ' by the plaintiffs in error. It is clear from the record that the application to set aside the judgment was made at the same term it was rendered. The judgment was entered bn the 19th day of June, 1883.. During the same term, as we infer, (and it is not disputed,) namely, on the 27th of July, 1883, the defendant’s attorneys gave notice of a motion to set aside the. judgment, to be heard on the 28th of August, and annexed to the notice the affidavits on which they relied. Service of this notice and of the affidavits was acknowledged by the attorneys of the plaintiffs without objection. Why the motion was not argued on the 28th of August is not shown. It was probably postponed by agreement of the parties, or at the suggestion' of the court. It did not actually take place until May, 1884, during the continuance of the December sрecial term of 1883. The district judge certifies that by agreement of counsel and the consent of the court, it was then heard, together with a similar motion in the case of Worts and others v. The City of Watertown, some of the affidavits being used in both cases. From what appears on the face of the record it is to be presumed that the hearing "of the ynotion was continued by consent, or by direction of the court, from the 28 th of August until the following term, which was the December special term. The objection, therefore, of want of jurisdiction to set aside the judgment on account of lapse of time is without foundation in fact.
As we have stated, the main question is, whether there was. legal service of process on the city. We may dismiss the attempt at service in March, 1873. It was set aside by the сourt as not made in the manner prescribed by law so as to give the court jurisdiction; and the prosecution was dropped by the plaintiffs. No further steps were taken until after the lapse of nine years and nine months, when a second effort was made
As the attempted service of the summons in 1873 can have no effect upon the solution of the present controversy, the question then arises whether the attempted service in December, 1882, was a sufficient and legal service. The court below held that it was not. We have already quoted the return of the marshal on that occasion. It appears from this return
. The question then is reduced to this, whether, in case the mayor has resigned; and there is no presiding officer of the board of street commissioners, (a body which seems to take the-place of the common council of the city for many purposes,) service of process on the city clerk, and on a conspicuous member of the board, is sufficient. If the common law (which is common reason in matters of justice) were -permitted to prevail there would be no difficulty. In the absence of any head officer, the court could direct service to be made on such official persons as it might, deem sufficient. But'when a statute intervenes and displaces the common law, we are brought to a question of words, and are bound to take the wоrds of the statute as law. .The cases are numerous which decide that where a particular method of serving process is pointed out by statute, that method must be followed, and the rule is espe
It is unnecessary to look farther to bee what the law. of Wisconsin is on this subject. ' It is perfectly clear that'by that law the service of process in the present case was ineffective" and void.
The counsel for the plaintiff in error endeavor to avoid this conclusion by referring to the act of 1879, which 'declares that “ the board of street commissioners of said city, and the chairman of said board, shall have concurrent power with the mayor and common council of said city, in the appointment of inspectors and clerks of election, and shall have all other powers conferred, by law, upon said mayor and common council, subject to the control of said common council,- except the power of levying taxes.” It is contended that this act gives to the chairman of the board of street cоmmissioners the same power as the mayor has to receive service of process against the city. But the Supreme Court of Wisconsin, as we have seen, has expressly decided otherwise. And the language of the act of 187^9 is not that the chairman of the board shallhave the pow-er of the mayor, but that the board and the chairman shall have concurrent power with the mayor and common council,— evidently referring to the power of the body, not to the separate power of the officers. Besides, if it were conceded that the chairman of the board had the same power as the mayor, Baxter, who was served with process as chairman of the board, was not permanent chairman, but was only temporary chairman of the particular meeting, and ceased to have any official position as such after the meeting adjourned. He was in no sense chairman of the board at the time when he was served with process. This fact, however, does not seem material in the view of the Supreme Court, of Wisconsin; for in the cases before it, the chairman of the'board was served with process during its actual session and whilst he was presiding. In the construction of a state statute, in a matter purely domestic, (as this is,) we always feel strongly disposed to give great weight to the decisions of the highest tribunal of the State.
Burgess
v.
Seligman,
With motives we have nothing to do. Certainly, improper motives cannot be attributed to a state legislature in the passage of any- laws for the government of the State. Individuals may be actuated by improper motives, and may take advantage of defects and imperfections of the law for the purpose of defeating justice. The mayor of Watertown may have been actuated by such a motive in resigning his office immediately after being inducted into it. But he had a legal right to resign ; and if the plaintiffs are prejudiced by his action, it is
dammum absque inju/riq.
The plaintiffs hre in no worse case than were the creditors of the city of Memphis after the repeal of its charter and the establishment of a taxing 'district in its stead. The State has plenary power over its municipal corporations, to change their organization, to modify their method of internal government, or to abolish them altogether. Contracts entered into with them by private parties cannot deprive the State of this paramount authority. See Meriwether v. Garrett,
The cases of
Broughton
v. Pensacola,
Affirmed.