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of the Statute of Limitations. But the making
of one spasmodic and unsuccessful effort, and
then abandoning the case for ten years, cannot
be regarded as having any such effect, unless
aided by some statutory provision. No such
provision has been cited. There is a provision
in the Revised Statutes of Wisconsin (§ 4240)
which was evidently intended to meet such a
case; but no attempt was made to comply with
it. The section referred to is substantially as
follows: "An attempt to commence an action
shall be deemed equivalent to commencement
thereof... when the summons is delivered
with the intent that it shall be actually served;
.. if a corporation organized under the laws
of this State be defendant, to the sheriff or
proper officer of the county in which it shall be
established by law, or where its general busi-
ness is transacted, or where it keeps an office for
the transaction of business, or where any offi-
cer, attorney, agent or other person upon whom
the summons may by law be served, resides or
has his office; or if such corporation has no
such place of business or any officer or other
person upon whom the summons may by law
be served, known to the plaintiff, . . to the
sheriff or other proper officer of the county in
which plaintiff shall bring his action. But such
an attempt must be followed by the first pub-
lication of the summons, or the service thereof
within sixty days.'

.

qualified. In Edwards v. United States the case
arose in Michigan, and it was held that the
common-law rule prevailed there, by which the
resignation of a public officer is not complete
until the proper authority accepts it or does
something tantamount thereto, such as appoint-
ing a successor. In Salamanca Trop. v. Wil
son, a case arising in Kansas, the treasurer of
a township moved across the township line in-
to another township. By the Constitution of
Kansas township officers were to hold their of
fices one year from their election and until
their successors were qualified, and nothing was
said either in the Constitution or laws about res-
idence or nonresidence. We held that the re-
moval did not necessarily vacate the office and
that service of summons on the treasurer was
good.

In the present case, it is true, the consoli- [316]
dated charter of the City of Watertown pro-
vides (chap. 1, § 6) that "All elective officers ex-
cept aldermen shall, unless otherwise provided,
hold their respective offices for one year, and
until their successors are elected and qualified."
But that provision has respect to ordinary cases.
It cannot apply in a case of death; and does not
apply in case of resignation; for by chapter 61
of the private and local laws of 1867, relating
to Watertown (§ 1), it is declared that "Any city
officer who shall resign his office shall file with
the city clerk his resignation in writing, direct-
ed to the mayor, and such resignation shall
take effect from the time of filing the same."
And by chapter 204 of the private and local
laws of 1871, relating to Watertown, it is de-
clared (§ 2) that "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." These provisions of the statute law
are decisive, and preclude the operation of any
such rule as was recognized in Badger v. U. S.
ex rel. Bolles and Edwards v. United States.
The service upon Rohr, the last mayor, there-
fore, was of no force, and had no effect what-
ever. The same thing may be said of the ser-
vice on Baxter, the last presiding officer of the
board of street commissioners.

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 al-
ready quoted the return of the marshal on that
occasion. It appears from this return that he
made the attempted service by delivering a copy
of the summons to Wm. H. Rohr, the last
mayor of the city, a copy to Henry Bieber, city
clerk, a copy to Chas. H. Gardner, city attor-
ney, and a copy to Thomas Baxter, the last
presiding officer of the board of street commis-
sioners of the City of Watertown, the office of
mayor being vacant and there being no presi-
dent of the common council nor presiding offi-
cer thereof in office. Was this such a service The question, then, is reduced to this: wheth
upon the city as the law requires? It clearly er, in case the mayor has resigned and there is
was not, unless, by the law of Wisconsin, the no presiding officer of the board of street com-
circumstances of the case were such as to dis-missioners (a body which seems to take the
pense with a literal compliance with the char-
ter. The charter requires service on the mayor
of the city. No such service was made. There
was no mayor in office at the time. The last
mayor had resigned, and his resignation had
taken effect. Service on him was of no more
avail than service on an entire stranger. The
case is different from those in which we have
held that a resignation of an officer did not take
effect until it was accepted or until another was
appointed. In those cases either the common
law prevailed or the local law provided for the
case and prevented a vacancy. Such were the
cases of Badger v. U. S. ex rel. Bolles, 93 U. S.
599 [23:991]; Edwards v. United States, 103
U. S. 471 [26: 314]; Salamanca Trop. v. Wilson,
109 U. S. 627 [27: 1055]. In Badger v. U. S.
ex rel. Bolles the law of Illinois was in question,
and it appeared that by the Constitution of that
State the officers elected were to hold their of-
fices until their successors were elected and

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 diffi-
culty. 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 words of the
statute as law. The cases are numerous which
decide that where a particular method of serv-
ing process is pointed out by statute, that
method must be followed, and the rule is es-
pecially exacting in reference to corporations.
Kibbe v. Benson, 84 U. S. 17 Wall. 624 [21: 741];
Alexandria v. Fairfax, 95 U. S. 774 [24: 583]
Settlemier v. Sullivan, 97 U. S. 444 [24: 1110]
Evans v. Dublin & D. R. Co. 14 Mees. & W.

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[318]

142; Walton v. Universal Salvage Co. 16 Mees. man shall have concurrent power with the
& W. 438; Brydolf v. Wolf, 32 Iowa, 509; Hoen mayor and common council,-evidently refer-
v. Atlantic & P. R. Co. 64 Mo. 561; Lehigh Val-ring to the power of the body, not to the sepa-
ley Ins. Co. v. Fuller, 81 Pa. 398. The courts rate power of the officers. Besides, if it were
of Wisconsin strictly adhere to this rule. Con- conceded that the chairman of the board had
gar v. Galena & C. U. R. Co. 17 Wis. 478, 485; the same power as the mayor, Baxter, who was
Watertown v. Robinson, 59 Wis. 513; Water served with process as chairman of the board,
town v. Robinson, 69 Wis. 230. The two cases was not permanent chairman, but was only
last cited related to the charter now under con- temporary chairman of the particular meeting,
sideration. In the first case, service was made and ceased to have any official position as such
upon the city clerk and upon the chairman of after the meeting adjourned. He was in no
the board of street commissioners whilst the sense chairman of the board at the time when
board was in session, in the absence of the he was served with process. This fact, how-
mayor, who could not be found after diligent ever, does not seem material in the view of the
search. The court, after referring to the pro- Supreme Court of Wisconsin; for in the cases
visions of the charter and the Revised Statutes before it, the chairman of the board was served
on the subject, say: "The question whether with process during its actual session and whilst
the Revised Statutes control as to the manner he was presiding. In the construction of a
of service is not a material inquiry here, be- state statute, in a matter purely domestic (as
cause both the charter and general provision this is), we always feel strongly disposed to
require the service to be made upon the mayor, give great weight, to the decisions of the high-
but no service was made upon that officer, as ap- est tribunal of the State. Burgess v. Seligman,
pears by the return of the sheriff. The prin- 107 U. S. 20 [27: 359].
ciple is too elementary to need discussion that There is a question entirely outside of the [319]
a court can only acquire jurisdiction of a party, one which we have been discussing: it is,
where there is no appearance, by the service of whether the state law, as thus ascertained, is
process in the manner prescribed by law." In objectionable on the score of being repugnant
the last case (decided in 1887) service was made to the Constitution of the United States. Does
in the same manner as in the previous one, and it impose embarrassments in the way of the
the court say: "When the statute prescribes creditor in pursuit of his claim which did not
a particular mode of service, that mode must exist when his debt was created? The point is
be followed. Ita lex scripta est. There is no not distinctly made by the counsel of the plaint-
chance to speculate whether some other mode iffs in error, although it is hinted at in their
will not answer as well. This has been too brief. But no statute has been pointed out to
often held by this court to require further cita- us showing any change in the law of the State
tions. . . When the statute designates a par- in this regard. As the record stands, we have
ticular officer to whom the process may be de- no sufficient ground for discussing the question
livered and with whom it may be left, as serv- in the present case.
ice upon the corporation, no other officer or
person can be substituted in his place. The
designation of one particular officer upon whom
service may be made excludes all others. The
temporary inconvenience arising from a vacan-
cy in the office of mayor affords no good rea-
son for a substitution of some other officer in
his place, upon whom service could be made,
by unwarrantable construction not contem-
plated by the statute.'

It is unnecessary to look farther to see 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 commissiouers 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 1879 is not that the chairman of the board shall have the power of the mayor, but that the board and the chair

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 damnum absque injuria. The plaintiffs are 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 par amount authority. See Meriwether v. Garrett, 102 U. S. 472 [26: 197].

The cases of Broughton v. Pensacola, 93 U. S. 266 [23: 896], and Mobile v. Watson, 116 U. S. 289 [29: 620], cannot aid the plaintiffs in this case. Those were cases in which a new name was given to an old corporation, or a new corporation was made out of an old one,-that was the substance of it,—and the question was whether the new corporation or the old corporation by its new name was liable for the old debts; and we held that it was. That was a question of liability, not a question of pro

cedure. There the way was open for looking| [320] into the actual relations of the old and new corporations, and deciding according to the justice of the case. Here we are bound by statute; and not by the state statute alone, but by the Act of Congress, which obliges us to follow the state statute and state practice. The federal courts are bound hand and foot, and are compelled and obliged by the Federal Leg-in islature to obey the state law; and according to this law the judgment of the Circuit Court was correct and is therefore affirmed.

[320]

Barker v. Millard, 16 Wend. 572; Robertson v. Alford, 13 Smedes & M. 509; Ingraham v. THE CITY OF WATERTOWN. (No. 2.) Regan, 23 Miss. 213; Rice v. Lowan, 2 Bibb

[321]

"

111 U. S. 395 (28: 466); U. 5. v. Maillard, 4 | iffs replied (by way of an amendment to their
Ben. 459; Peak v. Buck, 3 Baxt. 71; Miles v. complaint) as follows:
Berry, 1 Hill (S. C.) 296; Miller v. Lesser, 71
Iowa, 147; Conner v. Goodman, 104 Ill. 365;
Troup v. Smith, 20 Johns. 33; Leonard v. Pit-
ney, 5 Wend. 30; Allen v. Mille, 17 Wend. 202;
Humbert v. Trinity Church, 24 Wend. 587;
Demarest v. Wynkoop, 3 Johns. Ch. 129; Sacia
v. De Graaf, 1 Cow. 356; Bucklin v. Ford, 5
Barb. 393.

The Statute of Limitations of Wisconsin, as it first appeared in the Territorial Revision of 1839, and the Revision of 1849 was taken from the statutes of New York. The courts of New York had placed a settled construction upon it to the effect we here contend for.

When Wisconsin adopted the statute from New York, it adopted with it the construction the New York courts had put upon it.

Swearingen v. Robertson, 39 Wis. 462; Draper
. Emerson, 22 Wis. 147; Dutcher v. Dutcher,
39 Wis. 651; McDonald v Hovey, 110 U. S. 619
(28: 269).

The construction thus placed upon the Stat-
ute of Limitations of the State will be followed.
Green v. Neal, 31 U. S. 6 Pet. 291 (8: 402);
Harpending v. Reformed Prot. Dutch Church,
41 U. S. 16 Pet. 455 (10: 1029); Leffingwell v.
Warren, 67 U. S. 2 Black, 599 (17: 261); Mc-
Cluny v. Silliman, 28 U. S. 3 Pet. 270 (7: 676);
Ross v. Duval, 38 U. S. 13 Pet. 45 (10: 51);
Bank of Ala. v. Dalton, 50 U. S. 9 How. 522
(13: 242); Wayman v. Southard, 23 U. S. 10
Wheat. 1 (6: 253); Tioga R. Co. v. Blossburg &
C. R. Co. 87 U. S. 20 Wall. 137 (22: 331).

Said plaintiffs allege, on information and belief, that the said defendant, the City of Watertown, and the officers, agents, and citizens and residents of said city did, subsequent to the first day of March, A. D. 1873, conspire together, and with each other, and ever since have conspired together, and with each other, for the purpose and with the preconceived intent and design to defraud these plaintiffs and all other owners and holders of the bonds and coupons to such bonds issued by said city, and to prevent these plaintiffs and other holders and owners of said bonds and coupons from obtaining the service of process on said city.

"Said plaintiffs further allege, on information and belief, that each year since the first day of March, 1873, & mayor of said city was elected, as required by law, but said mayor each year, with the intent and design as aforesaid, qualified as hereinafter mentioned and and immediately thereafter placed his resignation in the hands of the city clerk of said city, to be filed by him in case of emergency, and to take effect accordingly.

"Said plaintiffs further allege, on informa-
tion and belief, that each year since the first
day of March, 1873, after the mayor and mem
bers of the common council had been elected,
they and each of them failed to qualify until
they had assembled together in a secret place
with locked doors, unknown to the people at
large and to these plaintiffs, and with persons
on watch to inform them of the approach of
any person or persons, and then and there, if
unmolested, the mayor and the members of the
common council, qualified as required by law,
Angell, Lim. SS 196, 477-479; Mercer v. Sel- transacted for said defendant city certain ne-
den, 42 Ú. S. 1 How. 37 (11: 38); Hogan v.cessary business, and thereafter immediately
Kurtz, 94 U. S. 773 (24: 317); McDonald v.
Hovey, 110 U. S. 619 (28: 269).

Where the statute has once commenced to run, no subsequent disability will interrupt or suspend its running.

Mr. Justice Bradley delivered the opinion of the court:

This is an action for a money demand brought by the plaintiffs in error against the defendant, the City of Watertown. A summons was sued out against the city on the 19th of June, 1883, and served by the marshal on the 26th of the same month by delivering a copy to the city clerk, the city attorney, and to the last elected chairman of the board of street commissioners. Appearance to the action was entered by the attorneys of the city, and a copy of the complaint was demanded. The complaint was duly filed, and set forth the issue by the city of three bonds for one thousand dollars each, bearing date respectively the first day of June, 1856, and payable on the first day of January, 1877, with interest thereon at the rate of eight per cent per annum, payable semi-annually, and with coupons annexed, to represent the successive installments of interest. The plaintiff prayed judgment for the amount of said bonds and of the last ten coupons on each. The defendant, in its answer, set up as a defense that the several causes of action did not, nor did either of them, accrue within six years next before the commencement of the action; that being the time within which actions upon bonds and coupons must be commenced in the State of Wisconsin. To this answer the plaint

filed with the city clerk of said city their re-
spective resignations, to take effect immediate-
ly, and which resignations went immediately
into effect.

"Said plaintiffs further allege that since the
first day of March, 1873, they have employed
attorneys and agents for the purpose of ascer-
taining who was the mayor or acting mayor or
chairman of the common council or chairman
of the board of street commissioners and for
the purpose of having process served on said
city; but owing to said conspiracy, as these
plaintiffs are informed and believe, since the
first day of March, 1873, there has been no
mayor of said city except each year for a few
hours at such secret and concealed meetings,
and the common council of said city, with the
said fraudulent intent and design, has failed
each year to elect a chairman of said common
council, and since said last mentioned date there
has been no person who was acting mayor, and
no chairman of the board of street commis-
sioners.

“Said plaintiffs further allege that, notwithstanding they have used due diligence and have hired attorneys and agents for the purpose of having process served on said city, they have been unable to this date to serve or have served the summons in this action on the mayor of said city or on that person who by law should exercise the functions of mayor of said city.”.

The defendants thereupon filed an amended answer, again setting up the Statute of Limita

[322]

323]

[324]

There is one class of cases which is excluded from the operation of the Statute by act of law itself, of which the case in which Mr. Justice Strong made the remark referred to is one: This class embraces those cases in which no action can be brought at alì, either for want of parties capable of suing, or because the law proThe courts of equity, however, from an early hibits the bringing of an action. In such cases day, held that where one person has been in- the general law operates as a qualification, or jured by the fraud of another, and the facts tacit condition of the particular statute. Thus, constituting such fraud do not come to the if a man dies after commencing an action, and it knowledge of the person injured until some abates by his death, and the limitation of time time afterward, the statute will not commence for bringing another action expires before the to run until the discovery of those facts, or un- appointment of an executor or administrator,— til by reasonable diligence they might have the courts have held, that as there is no person been discovered. Booth v. Warrington, 4 to bring suit, the statute is suspended for a Brown P. C. ed. Tom. 163; South Sea Co. v. reasonable period, in order to give an oppor Wymondsell, 3 P. Wms. 143; Hovenden v. Ld.tunity to those interested to have the proper reAnnesley, 2 Sch. & Lef. 607, 631, etc.; Blen- presentative appointed. Blanshard, Lim. pp.

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