Although several grounds are specified for the motion to dismiss the appeal in this case, counsel have practically confined their argument to two grounds only; first, that the transcript was not filed nor any extension of time granted within the ninety days after perfection of appeal, as required by Rule 26, and second, that no undertaking on appeal was given.
With regard to the first ground, it appears that the day after the expiration of the ninety-day period counsel for appellant applied for and obtained from the then chief justice of this court an order extending their time to file transcript on appeal. Ivan L. Hiler, of counsel for appellant, has filed an affidavit in which he states that he was under the impression that the first day, which is to be excluded under the statute in computing the ninety days would not begin until the hour when the appeal was actually perfected, which was approximately 2 P. M. on August 7, 1924; that this first day would therefore continue until 2 P. M. August 8th, so that the ninety-day period would begin at the latter hour and would not terminate until 2 P. M. November 6th, just after he had obtained his order for extension. Without passing on the propriety of this method of computing time, under C. S., sec. 9451, the default of appellants' counsel, if it be conceded to be a default, is by so slight a margin, that in the light of the excuses recited in their showing in opposition to the motion to dismiss, they may be given the benefit of the doubt and this ground of the motion disregarded, particularly in view of the fact that it does not involve a jurisdictional question. The procuring of an order extending time within which to file transcript on appeal, after the time for filing same has expired, under Rules 26 and 28, does not in and of itself extend the time but may be considered with other facts and circumstances to negative lack of diligence.
The objection that no jurisdiction was acquired by this court because no bond on appeal was filed, raises a more serious question. C. S., sec. 4515 of the Drainage Law, is as follows: *Page 553
"Every person or corporation feeling himself or itself aggrieved by the judgment for damages or the assessment for benefits may appeal to the supreme court of this state in the manner provided by law for appeals in civil actions to the supreme court within 30 days after the entry of the judgment confirming the report of the commissioners; and such appeal shall bring before the supreme court the propriety and justness of the amount of damages or assessment of benefits in respect to the parties to the appeal. Upon such appeal no bond shall be required and no stay shall be allowed."
It will be noted from a reading of this section that it provides in the first place that appeals to this court shall be prosecuted "in the manner provided by law for appeals in civil actions to the supreme court," which of course would require an undertaking on appeal as prescribed by C. S., sec. 7153. But the section concludes with the sentence, "Upon such appeal no bond shall be required and no stay shall be allowed." Counsel for respondent contends that the words "no bond shall be required" refer only to a supersedeas bond, and that an appeal bond is plainly required by the words "in the manner provided by law for appeals in civil actions." In construing this section it will be noted that the language "in the manner provided by law for appeals in civil actions" is a general provision, but that the last sentence of the section embodies a particular provision. It is a familiar rule in statutory construction that a particular provision controls a general one.
"Where there are two provisions in a statute, one of which is general and designated to apply to cases generally and the other is particular and relates to only one case or subject within the scope of the general provision, then the particular provision must prevail; and if both cannot apply the particular provision will be treated as an exception to the general provision." (Lewis' Sutherland on Statutory Construction, sec. 387.)
The last sentence in this section appears to be intended as a proviso to except from the general statutory mode of procedure on appeal the requirement of either appeal or stay *Page 554 bonds or the allowance of a stay. It may also be pointed out that the words "and no stay shall be allowed" necessarily eliminate from consideration any necessity for asupersedeas bond, so that the words "no bond shall be required" would seem naturally to refer to an appeal bond.
The drainage law of this state was adopted in 1913. (C. S., chap. 179.) The historical note at the beginning of the chapter in our Compiled Statutes states that it "was modeled after the Washington law, Bal. Ann. Code, secs. 3715-54." This is the Ballinger Code of 1897. Counsel for appellants call our attention to the fact that our section 4515 above quoted is taken almost verbatim from sec. 3727 of the Ballinger Code. The Washington section, however, did not specify that the appellate procedure should be "in the manner provided by law for appeals in civil actions," the words included in our sec. 4515. We are not cited to any decisions of the Washington court construing this section, and counsel points out that in 1921 the legislature of that state enacted a new drainage law in which the giving of an appeal bond was required. On the whole it can hardly be said that the history or provisions of the Washington drainage law are of material assistance to us in construing our own statute.
Counsel for respondent earnestly contends that it is not reasonable to presume that the legislature intended to exempt the remonstrants on a drainage district appeal from the statutory requirement of giving an undertaking on appeal, when litigants in other civil actions who appeal are commonly compelled to do so. However this may be, in view of the fact that no stay was allowed pending the appeal, the legislature may have thought it was only fair to release the appellant from the necessity of giving the usual bond for costs on appeal. At any rate the legislature undoubtedly had the power to make such provision, and this court is not called upon to consider its wisdom or expediency.
The requirement of an undertaking on appeal is purely statutory, and where the statute in express terms negatives the requirement it cannot be read into the statute by reference *Page 555 to a general provision which otherwise would be controlling.
The motions to dismiss must be denied and it is so ordered.
William A. Lee, C.J., concurs specially in the order denying motion to dismiss the appeal, for reasons stated in his concurring opinion in Nielsen et al. v. Board of CountyCommissioners of Bonneville County, ante, p. 481, 234 P. 686.