#### In re Reeseville Drainage District: Lueck, Appellant.

*February 5*

February *24, 1914.*

*Costs: Drainage proceedings: Statutes construed.*

1. No costs are recoverable in any judicial proceeding except as clearly authorized by statute.

2. Statutes commonly give costs to tbe prevailing party against bis adversary, and plain language would be required to provide for a recovery for tbe benefit of losing parties or their creditors.

3. In sec. 11, cb. 419, Laws of 1905 (sec. 1379 — 21, Stats, mil-providing that when a drainage petition or proceeding is dismissed as provided in secs. 4, 7, or 27 of said chapter “a judgment shall be entered against tbe petitioners and in favor of tbe commissioners for tbe costs, expenses and liabilities incurred in said proceedings, but for tbe benefit of those who have rendered services or advanced money in tbe prosecution of said proceedings, or have recovered costs on successful contests therein,” — tbe reference to sec. 4 (sec. 1379 — 14) was obviously a mistake, since in case of a dismissal under that section there would be no commissioners in whose favor judgment could be entered.

4. In construing tbe statute tbe court cannot go so far as to read into it tbe word '“contestants,” so as to make it provide for a judgment in favor of such contestants for tbe costs, expenses, and liabilities mentioned in case of a dismissal under said sec. 4.

5. Tbe fact that tbe legislature subsequently (by cb. 633, Laws of 1913) amended tbe statute so as to provide for “a judgment in favor of tbe contestants or commissioners,” does not indicate that tbe word “contestants” was previously left out by mistake.

6. Whether sec. 1379 — 21, Stats., deals with costs and expenses of any persons other than those who have successfully prosecuted or defended as petitioners, commissioners, or contestants, is doubted.

Appeal from an order of tbe circuit court for Dodge county: Chestee A. Fowlee, Judge.

*Affirmed.*

Proceedings by tbe attorney for petitioners under tbe drainage law, after tbe dismissal of tbeir petition for insufficiency with taxable costs against them in favor of remon*239strants, to have the reasonable value of his services and that of others and all liabilities incurred and expenditures made in their behalf in the proceedings, determined, and for judgment in favor of remonstrants against them for the benefit of the several claimants, the amounts to be apportioned between such petitioners according to acreage of land they respectively represented. In due course the proceedings were dismissed.

Eor the appellant there were briefs by *B. W. Lueok, in sua propria persona,*and' *O tto Kuenzli,*of counsel, and oral argument by *Mr. Kuenzli.*

Eor the respondents there was a brief by *Kading & Kad-ing,*and oral argument by *0. A. Kading.*

Maeshall, J.

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 *240wbicb calls for construction. A statute cannot, properly, be read otherwise than literally merely to effect a particular object — as if it were within the office of construction to put meaning into a legislative enactment by that process. The office of construction is to discover the meaning which the lawgivers placed in the statute to be construed. True, where to give effect to a law in its letter would lead to some absurd or very unreasonable result, ambiguity exists, for it is presumed the legislature did not intend to make a law of that character, and, so, in such a case it is proper to apply well known rules for construction to give to such a statute such meaning as to avoid any absurdity or unreasonable character, if thereby a meaning can be gathered from such enactment which will do so and seemingly effect the legislative purpose. But' that does not apply here, since there could hardly be anything suggested more absurd than a requirement that the costs and expenses of the losing parties in a judicial proceeding may be adjudged therein in favor of their adversaries for their benefit and that of those to whom they are indebted. That is out of harmony with the whole theory of recoverable costs. Statutes commonly give costs to the prevailing party against his adversary, or make some equitable provision therefor. Therefore it requires courage to claim that the drainage statute contemplates something radically different and to maintain it by judicial construction.

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*241tion is now sec. 1379 — 14, Stats., tbe next is now sec. 1379— 19 and sec. 1379 — 20, and tbe last is included in sec. 1379— 31/. That tbe reference to sec. 4 was a mistake is obvious because only a judgment in favor of tbe commissioners was provided for and a dismissal under such section would be in advance of there being any commissioners. Counsel for appellant, appreciating that, invokes construction to avoid it; but bow can tbe court read into sec. 4 tbe word “remonstrants” so as to give vitality thereto on tbe subject under discussion, unless it be clear that the legislature intended it to be there ?

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 *242provision for costs in favor of tbe contestants in tbe latter and again in tbe former, than that it intentionally omitted to use tbe word “contestants” as well as tbe word “commissioners.” Sec. 4 (sec. 1379 — 14, Stats.), in case of tbe contestants prevailing in advance of commissioners being appointed, covers tbe subject, according to tbe ordinary way of allowing costs to a prevailing party, — covers it tbe same as in sec. 1379 — 20, Stats, (sec. 7 of tbe law of 1905). It is notable that while tbe last legislature sought to make some sensible reference in sec. 1379 — 21 to sec. 1379 — 14 by interpolating tbe word “contestants” in each of two places after tbe word “commissioners,” it dropped out tbe former reference to see. 7, now sec. 1379 — 20, thus creating worse confusion than before. Secs. 1379 — 14 and 1379 — 20 are in harmony, read by themselves, and always were, but by tbe late change intended to cure confusion in tbe act of 1905, a different provision is found as to costs in tbe one from that in tbe other, under tbe same circumstances, to wit, when tbe contestants-are tbe prevailing parties.

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 *243statute for sustaining appellant’s position. We cannot en-graft anything onto the drainage law on the subject of costs by reading the same in connection with the provision for costs in actions and special proceedings. Such subject having been specially covered in the law, it is exclusive except as the ordinary fee-bill costs is inferentially.referred to in sec. 1379 — • 14. The term “at the cost of the petitioner” doubtless means such costs as are taxable in favor of a prevailing party according to the general policy of the written law as found in the provisions with reference to costs in actions and special proceedings.

*By the Court.*— The order is affirmed.