Portage County v. Columbia County

Vinje, J.

In the absence of statutory provisions permitting it, a county wherein a case is tried cannot charge another county with the costs of trial. We must therefore look to the statute for authority to sustain the order appealed from. If we do not find it there, the order must be reversed. This result is clearly perceived and admitted by respondent’s attorney, for he says: “This statute just quoted [sec. 2940, Stats.: Supp. 1906] is the law on which Portage County relies, and must necessarily rely, in asking an affirmance of the order appealed from.” That section, as amended by ch. 254, Laws of 1905, so far as it is material to the question raised by this appeal, provides:

“In all actions or legal proceedings, including criminal actions, where a change of venue is had or made by the order of any court or of any judge, pursuant to law (except in casés where such change 'is made because the action was not brought in the proper county), or when an action, occupying a day or more, is tried outside the county wherein pending, the county in which, such action was commenced shall pay to the county in which the same shall'be tried the following expenses arising out of such change of venue.” -

Both parties agree that the costs cannot be charged against Dane county because the statute expressly exempts it on the ground that the action was not properly brought there. An analysis of the statute will disclose that upon a change of venue the costs of trial can be charged bach to but one county, namely, the county in which the action was properly begun. The legislative scheme deals only with counties in which the action was commenced, and it divides such counties into two classes, those in which the action 'was properly 'begun and those in which it was not properly begun, and it exempts the latter from liability. The result is that when an action is tried in á county on a change of venue that county must be able to find a county in which the action was properly begun in order to relieve itself of liability for the costs of trial. If it cannot find such a county it must bear the burden itself, for no provision is made for charging back the costs against any other county. In other words, the legislature has said: If the action was properly brought in the county in which it was ^commenced, such county can be charged with the costs of trial upon á change of venue, but if it was not properly brought there it cannot be charged. There the statute ends. It makes no provisions for charging the costs to any other county. A situation such as is before us in the instant case was not provided for. But it is said the court should construe the word “commenced” to mean property commenced, and should hold that the present action was not properly commenced till it reached Columbia County on a change of venue. The insuperable obstacle to such construction is that the legislature recognized the fact that an action could be either properly or improperly conlmenced in a county by providing for a liability for costs in the one case and for exemption therefrom in the other; and that in fixing liability it did not go beyond the county in which, the action was commenced whether that was a proper or improper one. Hence we cannot extend the provisions of the statute by a construction that is negatived by the act itself.

It follows that sec. 2940, Stats. (Supp. 1906: Laws of 1905, ch. 254), did not authorize the trial court to tax costs against Columbia County, and the order must be reversed.

By the Court. — Order reversed, and cause remanded with directions to disallow the claim.