Case v. Telling

Grant, J. (after stating the facts). The drainage statute contains three provisions in regard to liability for costs. 3 How. Stat. § 1740b5, provides that “such applicants shall be jointly and severally liable for all costs and expenses in case the commissioner upon examination, or upon examination and survey, shall determine that the same is unnecessary or impracticable, or in case the proceedings shall be dismissed for other cause.” Section 1740c6 is as follows: “In case the special commissioners or jury shall decide such drain to be unnecessary, they shall so state in their return, and the drain commissioner shall thereupon dismiss the proceedings at the cost of the applicants. ” Section 1740e4 provides that the proceedings may be reviewed by certiorari, and provides that, “if the proceedings be sustained, the party bringing the certiorari shall be liable for the costs thereof, and, if they be not sustained, the parties petitioning for the drain shall be liable for the costs.” The learned circuit judge, in his instructions, said: “Now, it seems to me that that language, using the word ‘dismissed,’ refers to some other similar action, similar to that which is expressly stated in the statute itself; dismissed because it was impracticable, or that it was not beneficial to the public health, or that it was unnecessary to take the land described for some other similar [692] reason; and that the word ‘dismiss,’ in my construction of the statute, means some action taken in those drain proceedings themselves. It does not seem to me that the holding by this court in the certiorari case that those proceedings s.hould be quashed and held void because of some illegality, because of some delay on the part of the commissioner, or because of some action or want of action upon his part, should come within that term ‘ dismissed.’ ” It does not appear for what reason the proceedings were quashed or dismissed by the circuit court upon certiorari. It may have been through some neglect or fault of the commissioner, in which case the defendants would not be liable for the costs. Hall v. Palmer, 54 Mich. 270. We said in Rosenstiel v. Miller, 96 Mich. 99: “They [the petitioners] are actors in the proceedings, and the statute contemplates that they are the parties in the suit.” We are of the opinion that the expression in the clause of the section first above quoted, viz., “in case the proceedings shall be dismissed for other cause,” follows the proceedings throughout, and carries costs against the petitioners at any stage when the proceedings are dismissed or quashed for any cause not due to the negligence or fault of the commissioner. The evident intention of the legislature was to make the petitioners in these proceedings liable for the costs if they failed to sustain them. This liability cannot attach to them when the failure is due to some action of the commissioner not authorized by law. It follows that the judgment must be reversed, and a new trial ordered. The other Justices concurred.