ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF WISCONSIN.
MR. JUSTICE BRADLEY 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 case, 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
charter of the city of Watertown and the acts supplementary thereto. The state laws are referred to because they govern the practice of the Federal courts in the matter under consideration. By the 5th section of the act of June 1st, 1872, Rev. Stat. § 914, it is declared that "the practice, pleadings and forms and modes of proceeding in civil causes, other than equity and admiralty causes, in the Circuit and District Courts, shall conform, as near as may be, to the practice, pleadings and forms and modes of proceeding existing at the time in like causes in the courts of record of the State within which such Circuit or District Courts are held." Were it not for this statute, the Circuit Courts themselves could prescribe, by general rule, the mode of serving process on corporations as well as on other persons.
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 of 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
always in the power of the courts, by general rules, to adapt their practice to the exigencies and conditions of the times.
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 to 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:
Chapter 1, § 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. . . ."
Chapter 2, § 2. "The mayor, when present, shall preside over
the meetings of the common council, and shall take care that the laws of the State and the ordinances of the city within the corporation are duty enforced and observed, and that all officers of the city discharge their respective duties. He shall appoint the police force. . . . He shall have a vote in case of a tie only. . . ."
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 the 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 management 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 7, § 2. "The common council shall be resolution levy such sum or sums of money as may be sufficient for the several purposes for which taxes are herein authorized to be levied. . . ."
Chapter 9, § 8. "When any suit or action shall be commenced against said city the service thereof may be 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 Watertown, 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 ...