69 Wis. 230 | Wis. | 1887
The defendant in error was injured by the falling of a derrick used in the building of a bridge within the city of Watertown, by the negligence of its officers, agents, or employees. The action is brought against the said city, together with the several members of the board of street commissioners thereof, and service was had upon all
The sufficiency of said service upon the city is the only question in this case. It is urged by the learned counsel of the plaintiff in error that this court, in Watertown v. Robinson, 59 Wis. 513, on motion for rehearing, with offer of proof that in that case the office of mayor was vacant, decided that, such proof being admitted, and the return being so amended, the service was yet insufficient. There was no opinion on that motion, but it was probably and more properly held that such an amendment of the return could not be made in this court. In Heymann v. Cunningham, 51 Wis. 506, where the service was made when there was no mayor, great doubts are expressed “upon the sufficiency of the service to give the court jurisdiction of the defendant city,” but the decision of that question was not deemed necessary to the determination of the rights of the appellant in that proceeding, and it was not therefore passed upon. In Worts
Another principle is equally clear, and that is, that when the statute prescribes a particular mode of service that mode must be followed. Ita lex scripta est. There is no chance to speculate whether some other mode will not answer as well. Helms v. Chadbourne, 45 Wis. 60. This has been too often held by this court to require further citations, but the strong language pf Chief Justice Evan, in Foster v. Hammond, 37 Wis. 187, is worthy of special reference. See, also, other authorities cited in the very able brief of the counsel for the plaintiff in error. And here it is sufficient to say that every possible reason against the strict application of the statute prescribing the mode of service, in a case like this, including the constitutional objection, is satisfactorily urged and conclusively enforced in the brief of counsel for plaintiff in error, to which reference may be had. In many cases the officer or agent of a corporation upon whom service of a summons is required to be made, may not for a time be in existence, and there may be a vacancy in such office. This is only a temporary inconvenience that must necessarily be suffered until there is such
The only question is, what does the statute mean when it designates a particular officer, such as the mayor, by name, upon whom such representative service may be made ? The reason of the law unquestionably is to designate some officer of the city, of such powers, grade, and dignity, as would imply a supervision and management of the interests and affairs of the city, and who would most properly and likely take care of, and protect the interests of, the city as a defendant in court. The legislature in its wisdom has' seen fit to designate the mayor, eo nomine, as such officer. When such an officer de jure, and in the most comprehensive sense, does not exist, and the office as such is vacant for the time, has the law provided, in terms or spirit, that some other officer or person wrho for the time of such vacancy exercises the general powers, and performs the general duties of such an officer, is the proper person upon whom such service can be made? Most certainly, the law in terms has
Whether service of process could be properly made upon such an officer, during the vacancy of the mayor’s office, is not the question here, and we will not attempt to decide it. There is no board of aldermen and no president of the common council. The person or officer upon whom this pretended service was made is the “ chairman of the board of street commissioners,” and sec. 2, ch. 46, Laws of 1879, prescribes the duties of such an officer in connection with said board, as follows: “ 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.” This provision confers upon the chairman alone none of the duties and powers of the mayor. In sec. 1, ch. 204, P. & L. Laws of 1871, are found the only other powers of the chairman. They are: “In case of vacancy in the office of mayor, and there is no president of the common council to act, said orders may be signed
Other statutes may be referred to which designate the officer called the mayor of a city. When oh. 44, R. S., provides what particular officers shall prosecute for damages, penalties, and forfeitures, and breaches of official bonds, and names the “ mayor, in case of a city,” as such officer, it clearly means that officer eo nomine, and no other. In sec. 4000, R. S., the certificate, in writing, of the approbation of the sale of lands belonging to wards, is required to be made by the supervisors of the town, “ the mayor of the chy,” or president of the village, in which the ward is an inhabitant. Is not this high and responsible trust conferred on these officers alone, and no others? And so we might refer to many general statutes which confer special powers on certain designated officers. It would not do to substitute other officers or persons to exercise such special powers, by judicial construction, when the statutes have not done so. The case of Fairfield v. King, 41 Vt. 611, seems to be closely in point, and supported by irrefragable reasoning and authority. The other cases cited by the learned counsel of the plaintiff in error bear strongly to support the principle that, when the statute designates a,particular officer to whom the process may be delivered, and with whom it may be left, as service upon the corporation, no
We have been aided very much in the examination and decision of this question by the very able brief of the counsel of the plaintiff in error, as also by the brief and argument of the learned counsel of the defendant in error, presenting every possible reason and authority against what we cannot deem otherwise than the true principles to be applied to the construction of the statute authorizing service upon a city. We think the statute is plain, and its construction clear and certain, that service upon the city of Watertown in this case was not made by delivering a copy of the summons and complaint to the chairman of the board of street commissioners, and leaving the same with him. The circuit court acquired no jurisdiction over the city of Watertown to render judgment against said city in this case.
By the Court.— The judgment of the circuit court is reversed.