On Petition for Rehearing.
Per Curiam.13. It is for the General Assembly to determine the measure of jurisdiction which it will grant or withdraw in relation to the construction of public drains. Taylor v. Strayer (1906), 167 Ind. 23. An examination of the drainage legislation of 1905 shows a predominate purpose in the legislative mind to prevent the drainage of lakes of more than a specified area, and to that end the General Assembly, in repealing all prior drainage laws, saved existing proceedings only in certain cases. As to the excepted proceedings, it left the prior laws in force to secure their consummation. This proceeding was stricken down by the statute because it amounted to an “ attempt to ’ ’ drain a protected lake. Concerning the legislation here involved, we said, in Taylor v. Strayer, supra: “It was also the expressed intent of the legislature to save all pending ditch proceedings which had not progressed to final judgment, provided the proposed ditches were not designed to and would not affect lakes with the surface area named.” The time when the law went into operation was the testing time for the determination of the question as to whether this proceeding should continue. The further language of the clause, which had to do with the actual result of lowering a protected lake, was to guard against eventualities, which might have that result. It is only upon the construction which we have given to the saving clause that all of its language can be made operative.
8. *5129. *511It must not be forgotten .that the saving clause dealt with two classes of cases only: those existing proceedings which were to be concluded under former laws, and those which were to abate. As to the latter class, there was no authority left to modify the character of such pro*512ceedings, for former laws were repealed as to eases not within the class referred to, while the new law did not govern such eases, since pending proceedings which were not affected by the repeal would be concluded as if the ‘ ‘ act had not been passed.” It was therefore impossible to change a proceeding that had failed by reason of the repeal of the old law, so as to continue it under the new law. In other words, appellants’ claim of a right to have the report modified so as to avoid the statute involves the objection that there is no law under which they can proceed.
11. 14. Counsel for appellants state that they are unable to understand how there could be any justice in a repealing clause which would leave the petitioners with a heavy burden of costs. At the most, the question whether the act operates fairly is a consideration which goes to its construction, but we may say that we fail to perceive how justice would be promoted by permitting a large amount of costs, made in the effort to carry out a materially larger scheme of drainage, to be laid upon landowners within the restricted district who had nothing whatever to do with the institution and carrying out of the proceeding. Doubtless it was the consideration that equal and exact justice could not be done in many cases wherein jurisdiction was withdrawn which prompted the legislature to make no provision whereunder the character of the proceedings could be modified. As between the parties hereto it cannot be said that unadjudged costs constitute a liability within §248 Burns 1908, §248 R. S. 1881, and, as between such parties, the repeal of the statute and the dismissal of the proceeding did not affect any vested or contractual right. Taylor v. Strayer, supra.
We have again considered the points originally made for a reversal, in addition to considering the petition and argument for a rehearing, and we continue of opinion that no available error exists. The petition is therefore overruled.