Golling v. Harder , 14 Wis. 86 ( 1861 )

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-ma^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.