156 Wis. 238 | Wis. | 1914
Counsel for appellant does not complain of the order dismissing the drainage proceedings. Therefore respondents’ suggestion as to nonappealability of said order, and immunity of it from attack in the circuit court, will be passed as inconsequential.
Are the costs and expenses of the petitioners, and debts contracted by them in prosecuting the proceedings for establishment of the drainage district, recoverable by way of enforcing the order of dismissal ? That is the question to be decided. Its solution turns on the statute. No costs are recoverable in any judicial proceeding except as clearly thus authorized.
In deciding the suggested question there is little or no use of referring, to statutes or decisions of other states and we shall, therefore, pass all citations in that respect without further notice.
Counsel cite authorities, mostly foreign, on the general subject of statutory construction. We must pass such citations, because the rules governing the matter are elementary and have been too often stated and applied in this court to leave any good reason for going elsewhere for light on the subject. Moreover it is useless to attempt construction until ambiguity shall have been discovered in the written law
Enough has been said to indicate that, unless sec. 1379— 21 (see sec. 11, ch. 419, Laws of 1905) of the drainage law as it existed when the proceedings in question occurred, clearly supports appellant’s claim, the order complained of is right. It provided for recovery of “costs, expenses, and liabilities incurred in said proceedings, but for the benefit of those who have rendered services or advanced money in the prosecution of said proceedings, or have recovered costs on successful contests” in case of the petition or proceedings being dismissed as provided in secs. 4, 7, or 27. The first see
It is tbe office of judicial construction to get out of an enactment what tbe legislature put. into it, in terms or effect, viewing words as if in their proper order and omitted words in place which are there by necessary or reasonably clear implication. Construction can go a great way, but there is a limit. It is reached before judicially making law, though it may, and often does, go to the extent of getting sense out of a law where none could be discovered by reading it just as enacted. That is well illustrated in Neacy v. Supervisors of Milwaukee Co. 144 Wis. 210, 128 N. W. 1063.
The fact that the legislature, by ch. 633, Laws of 1913, amended sec. 1379 — 21, Stats., so as to provide for “a judgment in favor of the contestants” as well as “commissioners,” harmonizing it with sec. 1379 — 14, does not indicate that the legislature of 1905, by mistake left such word out of sec. 4 of the drainage law in 1905, any more than it does that the legislature of 1913 made the mistake of adding such word without dropping out the provision from the latter in respect to costs in favor of the petitioners. Provision having been made, originally, for such costs in case of a dismissal in advance of there being commissioners, it was useless to refer to the subject in what is now sec. 1379 — 21. It seems much more, likely that the first legislature made the mistake of referring, in said sec. 11, to sec. 4 and .did not intend to make
In tbe situation mentioned we cannot' see any warrant for reading sec. 1379 — 14, as it formerly existed, as if it contained tbe word “contestants” following tbe word “commissioners.”
If we could surmount tbe difficulty indicated and read sec. 1379 — 14 as desired, there would still be difficulty. It is by no means clear that sec. 1379 — 21 deals with costs and expenses except of such persons as have successfully prosecuted or defended as petitioners, commissioners, or contestants. As said before, ordinarily, only costs of prevailing parties are contemplated in judicial proceedings and against adverse parties. Any different recovery, as for instance that of costs incurred by or in behalf of tbe moving parties for tbe benefit of their creditors, would be such an out of tbe current matter that plain language would be required to provide for it.
No more need be said. We cannot find warrant in tbe
By the Court. — The order is affirmed.