(dissenting). Jurisdiction over.the person of the petitioner, a resident of Illinois, is asserted to now exist in the circuit court for Kenosha county, .this state, by virtue of compliance with sub. (3) of sec. 85.15, Stats, (created by ch. 94, Laws of 1925), by Charles H. Julius and Mary Julius, his wife, residents of said county.
Petitioner assails the constitutionality of such statute on the grounds, among others, that it violates certain rights and privileges guaranteed and secured to him as a citizen of a sister state by the federal constitution, viz. by art. IV, sec. 2, — “the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states,” and by the Fourteenth amendment, which denies to each state the power to make or enforce any law abridging the *160privileges or immunities of citizens of the United States; to deprive any person of liberty or property without due process of law; to deny equal protection of the laws to any person within its jurisdiction.
This statute is directed at nonresidents only, at such nonresidents who operate on the highways in Wisconsin private motor vehicles only, and provides for process against such, but only in actions for thereby causing damage or loss to persons or property. It also would undoubtedly permit the bringing of actions in this state by persons injured here, though nonresidents. The use by a nonresident of such motor vehicle on the Wisconsin highways is declared to be an appointment by him of the secretary of state as his attorney for service of. all legal processes in any such action, and with the same effect as if personally served. The secretary of state is required to keep a record of all such processes, but there his duties and functions end. Though made the agent of such nonresident for service, he is not required in any manner to give-any notice to or perform any act for such principal. ‘Agency implies mutual duties and obligations, but here his agency for such a nonresident is the merest shadow; he has absolutely no part to play in that which is essential in “due process,” namely, the giving of notice to the one concerned. In verity he is agent for plaintiff if for any one.
So far as actual notice is concerned, this statute would be just as effective without this provision. Yet without some such ceremony as service on the secretary of state no one could possibly contend that the other provision of the statute authorizing the party plaintiff to mail summons and complaint to a defendant without the state could be sufficient to confer jurisdiction in personam over such nonresident. Moyer v. Koonts, 103 Wis. 22, 24, 79 N. W. 50; McDonald v. Mabee, 243 U. S. 90, 37 Sup. Ct. 343. So we have here, in effect, a finding of a valid whole made up of two parts and one wholly ineffectual and one wholly invalid.
*161It may be safely asserted, I take it, that so long as a citizen of Wisconsin can lawfully operate motor vehicle’s on our highways this state cannot prohibit an Illinois citizen from so using them, nor could it exact a higher rate of gasoline tax or a higher automobile license fee from him without being in plain violation of the federal constitution. That private motor vehicles, registered in some other jurisdiction but operated here, are relieved by'sub. (1) of the same sec. 85.15 from the license fee required of residents, and that such has been continually the law since the first such license law, ch. 305, Laws of 1905, is here immaterial. In no way can it be contended that this attempted making of a state official an agent for personal service on a nonresident is bottomed upon the waiver by the state of its undoubted power to require all such vehicles to pay a license fee. Its waiver of such right to exact a fee is a courtesy, not a consideration. ' .
In order to obtain jurisdiction to enter a personal judgment against a resident or against a nonresident while within this state, personal service is required. In the absence of such service any'attempt at a judgment is a nullity. Western P. & M. Co. v. American M. S. Co. 175 Wis. 493, 185 N. W. 535. Such service must be (secs. 262.07, 262.08, formerly secs. 2635, 2636) by delivery of a copy of the process to the individual or, he not being found, by delivery to some member of his household to whom its contents must be explained, and this service must be by one not a party to the action. All this is for the purpose of giving in a substantial and safe manner actual, bona fide notice to a party sought to be sued; if it cannot be so given there can be no valid service.
That the method provided for by this statute (and expressly requiring, as it does, service to be made by the plaintiff himself) to reach the same end, viz. jurisdictional service, for which due notice is of the essence, is essentially and substantially different, much less rigorous, with fewer *162safeguards, and more susceptible of abuse and more completely within the control of the plaintiff than that required by our statute for the resident, or transient presently within our jurisdiction, is too plain to need discussion. Just so much as it falls short of substantial equivalency with statutory jurisdictional service on or notice to a person within this state, just so much does it fall short of preserving, in this state, to the nonresident citizen of the United States, the guarantees of equality of privileges and immunities; due process of law; and the equal protection of the law under the federal constitution. Were the statute to provide that the using of the highways for motor-vehicle purposes would be deemed the appointment of the secretary of state as attorney or agent for personal service of process in any and all kinds of actions, contract as well as tort, it would present no logical distinction from the one we have here, but would only emphasize the inequality here created between resident and nonresident citizens of the United States. Were a statute to provide that merely coming into this state, afoot, horseback, or by airship, would make similar attempted service valid, there would still be no difference in theory. The petitioner having the right, secured by the federal constitution, to freely come within and depart from this state, and this necessarily including the right to use the highways for that purpose, such right cannot be lessened, curtailed, or hampered in any manner substantially different from the restrictions, obligations, or liabilities placed upon residents. I think the ruling in Flexner v. Farson, 248 U. S. 289, 39 Sup. Ct. 97, is controlling here and contrary to the majority opinion. See, also, 73 Univ. of Pa. Law Reg. p. 171.
I agree with the holding in the majority opinion that obedience to a subpoena in Illinois issued by a judicial officer there does not create, confer, or recognize, by such appearance, jurisdiction in a Wisconsin court whose title may happen to appear in the subpoena. That, I think, is clearly *163in accord with the doctrine in such cases as Blair v. U. S. 250 U. S. 273, 39 Sup. Ct. 468, holding that a witness required to give testimony before a grand jury is not entitled to refuse to answer upon the ground that the court and jury are without jurisdiction over the supposed offense under investigation (p. 282), although the identical statute there involved, namely, the federal corrupt practice act, was subsequently held unconstitutional in Newberry v. U. S. 256 U. S. 232, 41 Sup. Ct. 469. See, also, Howat v. Kansas, 258 U. S. 181, 186, 42 Sup. Ct. 277.
I also agree with them that the provision in the statute limiting continuances to ninety days is discriminatory and therefore invalid. But if such provision is discriminatory and unconstitutional because subjecting a nonresident defendant to a limitation not prescribed for a resident defendant, then I think the provisions here involved, attempting to make service on a state officer personal service on a nonresident defendant, is far more obnoxious and discriminatory and comes within the condemnation expressed in Travis v. Yale & Towne Mfg. Co. 252 U. S. 60, 78, 82, 40 Sup. Ct. 228.
For the above reasons, which seem to me so fundamentally superior to any considerations of desirability or convenience, I think the writ should issue.
The following opinion was filed June 20, 1927:
Per Curiam.On the authority of Hess, Plaintiff in
error, vs. Pawloski, Defendant in error, decided by the Supreme Court of the United States May 16, 1927 (47 Sup. Ct. 632), the motion for rehearing is denied, with $25 costs.