Watertown republican. [volume] (Watertown, Wis.) 1860-1906, 1874-05-06
Watert0Wn Bond Case.
Limitation Law of 1872 Uncon.
SiitutiOnaI.
Decision Of U. S. Circuit Ct, w estern
Dist of Wis, April 81, 1874.
B. F. Pereles vs.. City of Watertown.
HOPKINS, j.


HOPKINS, j.
| This is an action brought upon certain
bonds OF the city of " atertown, bearino
date on the lst day of August 1853, and
| due and payable on the 1st day of August
| 1868, bearing in terest at the rate of s per
cent, payable semi annually according to
interest warrants or coupons attached.
The bonds were executed under the cor
porate seal of the city and are not disput-
ed TIE only defense lnterposed is that
Of the statute Of limitations When these
bonds were issued and put in circulation,
| the period Of limitation was twenty years.
ard so remained until the passage of the
act entitled, ian act TO slimit the time for
the commencement of actions against towns
| counties, cities and villages, on demands
made payable to bearer" which was pub
llshed and took effect April Sd, 1872, and
read IS follows, viz: Section |. "No
action brought to recover any sum Of
money on any bond, coupon, interest war
rant against or promise in writing made
or issued by any town, county, city or viii
lage, or upon any instalment Of the prin-
cipal or interest thereof shall be MAINTAIN.
ed in any court, unless such action shall
be commenced within six years from the
time such sum Of money has or Shall be-
come due, when the same has been or
shall be made payable to bearer, or to
s0ue person or bearer, or TO the order of
some person, or to some person or his Or
der; PyQg{ded'that any such action may
be brought within one year after this act
sht take effect pr0vidcd further, this act
shall lii no case he construed to extend
She time within which an action may be
brought under the laws heretofore exist
ln@." This action Eas commenced by
service OF process upon the 3iSt dav of
July, 1873, more Cham a year after he pas
sage OF the foregoing act, and more than
six years after the bonds and coupons had
become due, when the above act was Eassed
so il any right to sue was saved by the
act ii WAS Uy virtue Of the pr0oiso 'ttat
any such action may lie brought within
one year alter this act shall take effect"
This mode OF Inserting provsoes Of this
III nd IN statutes OF limitations, intended TO
apply TO existing causes OF action when
the act would otherwise cut off all rene
dy, is quite customary in the legislation
of this state. But Notwithstanding it has
been practiced for some time past, | DO
not find that the Supreme Court of tue
State has ever considered the effect Of such
provisions, or determined whether they
are etiectunl IN avoiding the constitution
al objection TO a law that cuts off all rene
dy. Such clauses have doubtless been
suggested aud inserted as embodying the
principle laid down by the courts, that
although limitation act, by its terms, in
Guides existing causes of action, still if a
nal Of ba id
mains after the passage, that the act is not
subject to the constitutional objection of i'm
paitng the obligation of the contract.
But as TO whether the legislature can de.
tcrmine that question by proviso of this
kind, has not been considered by the Su-
preme Court Of tbs state; so l have not
the benefit Of the construction OF that learn
ed tribunal
In the conclusion | have arrived at in
this case, it will not be necessary to de-
eide whether any effect should be given to
such pr6viso or not, for l think that, if
it is effectual to give year after the pas
sage of the act to bring suits upon claims
where six years had already run, still the
Leg stature are not the exclusive judges
of the question as to whether the period
stated in the proviso is a reasonable time
within which to prosecute the remedy.
This was the important question pre-
sented and discussed on the trial. We're
it not for decisions of the Supreme Court
of this state to the contrary, and were at
liberty to follow the rule as to the con.
struction to be given to statutes of lmi Ia
tons by the Supreme Court of the United
States, as laid down liz Sohn vs.. Waterson,
decided October term, 1873, reported in
10 volume, Internal Revenue Record, page
100, there would be no difficulty, for they
there hold that such statutes are to be con.
strucd as to existing contracts, as taking
effect from their passage, and as giving
the full period from that time. That
would relieve this case from all difficulty
But, as the Supreme Court of this State
whose decisions upon such statutes are re-
garded as binding upon the Federal Courts,
(See Lifhngwell vs. Warren, Black, 599),
have held such statues are valid, when there
is a reasouablef9 portion of the time left with
in which TO commence the suit, Parker vs.
Kane, 4 Wis. IS; Smith VS.. Packard, II
Wis, BIT; Buell. VS.. Voight, % i'd, l53
But as to claims where the whole period
was expired before the passage sof the act,
the statute does not apply to such cases at
| all. OoOoi1 70. 0oAucS, - WIS, 90, duu
81 Wis, 3l6-242. l have to decide this
case in the light of such authorities. In
| Sohn VS.. Waterson, supra, the act Of the
State of Kansas passed in 1859 limited the
bringing of actions upon judgments rem
| dered out of the State two years from
THE time the cause Of action accrued" The
| ju igment there sued upon was recorded
in Ohio in 1854. So to give the act its
literal meaning, the right to sue the
| judgment in Kansas would have been cut
off iustantaneously. But the court held the
act should have a prospective operation
only, and that the proper time to commence
the calculation of the period of limitations
"was when the cause of action was first
subjected to the operation of the Statutes,
and held the party had two years after the
passage OF the act to sue, citing and ap.
proving the cases OF Ross vs. Duyal Is Pet
ers 81, and Lewis vs.. Lewis, How. 778.
But the court in Murray vs.. Graham, II
How. AL, which was decided after the
two cases above cited, followed the decision
; of the State courts Of the State of Mssis
| sippl IN the construction of the statute:
OF that State, and held the statute applied
only to cases arising after the passage o