#### Golling vs. Harder.

Where a notice of appeal from the judgment of a justice of the peaje has been duly served, with the affidavit required by law, the justice may, if he chooses, make his return to the appellate court of the testimony, proceedings and judgment in the cause, without requiring payment of his fees therein or of the state tax.

APPEAL from tbe Circuit Court for *Dodge*County.

Tbe plaintiff in this action appealed from a judgment of a justice of tbe peace to tbe circuit court for Hodge county; and that court made an order dismissing tbe appeal on tbe ground that tbe costs of tbe justice in tbe action appeared by tbe transcript of bis docket not to have been paid within tbe time limited by statute, but after that time-, from which order tbe plaintiff appealed to this court.

*Smith &*Ordway, for appellant,

argued that due service of tbe notice of appeal is sufficient to give tbe appellate court jurisdiction of tbe cause *{Van Heusen vs. Kirlcpatriclc,*5 How. Pr. R., 422); and that the provision of sec. 205, chap. 120, E. S., requiring the appellant from a justice’s court to pay tbe fees of tbe justice at tbe time of presenting to tbe j ustice a notice of bis appeal, was enacted solely for tbe benefit of the justice himself, and be might, if be chose, waive tbe benefit of it and perfect tbe appeal by making tbe requisite return. Sec. 212, chap. 120, E. S.; Sedgwick on Const. Law, 422, 287-8, 284, 294; Smith’s Comm., 782, 792-8.

6r. *W.*Hazelton, for respondent,

cited *Felton vs. Town of Blooming Grove,*3 Wis., 310 ; *Claris vs. Bowers,*2 id., 123; *87
      *Clarhvs.*Miles, 2 Chanel., 94; *People vs.*MTdridge, 7 How. Pr. R, 108; and contended that the right of appeal being statutory, the statute must be strictly complied with, and that it should be so construed as to discourage and not encourage litigation.

June 18.

*By the*Court,

DixoN, C. J.

If by .section 205, chapter 120, R. S., the payment of the fees and tax might be considered jurisdictional facts, section 212 makes it clear that the legislature did not so intend. That section declares that no justice shall be bound to make return unless the fee and tax prescribed by the act be paid on service of the notice of appeal. This provision plainly implies that justices may, if they think proper, make return without such payment. If they do so, the returns cannot be deemed unlawful. Courts cannot declare that to be contrary to a statute, which its provisions impliedly authorize. Whatever is fairly to be inferred from its language or provisions, as being within the intention of the legislature, is as much within its authority or prohibition as if expressly named and authorized or prohibited.

If the legislature had intended the payment of the fee and tax to be acts which must be performed in order to constitute an appeal, no such provision would have been inserted. It would have been unnecessary and • useless. The service of the notice and presentation of the affidavit, without such payment, would have been void acts. There would have been no appeal, and consequently could be no return. By prescribing the power and duty of justices in case the fee and tax are not paid, and leaving it optional with them to make return or not, as they may think proper, the legislature have recognized the existence of the appeal independent of such payment. The legislature having done so, we cannot do otherwise. In this way effect is given to all parts of the act, which otherwise could not be done, and the clause requiring the fee and tax to be paid becomes a regulation designed to protect justices and ensure the collection of the revenue, and not an act without the performance of which the appeal cannot be perfected. If therefore the justice vol-*88ma^es return, without requiring such payment, it is a matter of which the opposite party can complain. His own fees are aiwayS subject to his control, and if he neglects his duty as to the tax, it rests with the public authorities to apply the proper remedy.

Order reversed.