(dissenting). I respectively dissent on the ground that previous constructions of the term “successful party” as used in sec. 271.08, Stats., apply equally to that term as used in sec. 271.02 (2) and were intended by the legislature so to apply in condemnation appeals to circuit court.
Ch. 133, sec. 38 (3), R. S. 1858, the predecessor to sec. 271.01, provided that costs be allowed of course to the plaintiff upon his recovery in an action over which a justice of the peace had no jurisdiction. Ch. 133, sec. 56, the forerunner of sec. 271.08, provided that costs be allowed the successful party in a new trial on an appeal from justice court. In Smithbeck v. Larson (1864), 18 Wis. 193 (*183), the defendant appealed a justice court judgment for $31 and costs. On a new trial in circuit court the plaintiff was award*433ed only $4 damages. It was held that the successful party was the one recovering judgment on the new trial.
In Norwegian Evangelical Lutheran Church v. Thorson (1866), 21 Wis. 35 (*34), plaintiff appealed a justice court judgment for 50 cents damages and costs. On a new trial in circuit court he was again awarded 50 cents damages. The Smithbeck rule was followed, Mr. Justice Cole pointing out that the defendant could have relieved himself of costs in circuit court by serving upon plaintiff an offer in writing to allow judgment to be taken against him under ch. 97, Laws of 1858 (now sec. 269.02, Stats.). The result of this case was overruled by ch. 189, Laws of 1875, which amended the statute to provide that whenever a party in whose favor judgment was rendered in justice court appealed to circuit court and a new trial was had, if the appellant did not recover a more favorable judgment he should pay costs to the adverse party.
It should be noted that this amendment did not change the definition of successful party as the one who recovers judgment; rather, it reinforced that definition by creating an exception to the general rule. In the cases covered by the amendment the appellant may not tax costs in circuit court notwithstanding the fact that he is the successful party.
By ch. 145, Laws of 1937, the legislature amended sec. 271.02 (2), Stats., inserting the successful party provision in question here. The only other statute in the costs and fees chapter, ch. 271, employing the term “successful party” is sec. 271.035, enacted by ch. 301, Laws of 1949. I conclude that “successful party” as used in these statutes was intended by the legislature to have the same meaning as in sec. 271.08.
The majority attempts, unsuccessfully in my opinion, to distinguish the Smithbeck Case, supra, on the ground that the proceedings in justice court were part of the litigation while an administrative proceeding is not. In my view the *434rationale of the Smithbeck Case is that on a new trial in circuit court when an appeal has been taken from justice court the party recovering judgment is entitled to costs as though there had been no prior action, even though the amount of such costs be different.
The majority relies upon Jonas v. State (1963), 19 Wis. (2d) 638, 121 N. W. (2d) 235, and Trempealeau County v. Marsh (1948), 252 Wis. 278, 31 N. W. (2d) 519, for its conclusion that the state is the successful party on this appeal because the commission’s award was reduced. Trempealeau County v. Marsh relied in turn upon Washburn v. Milwaukee and Lake Winnebago R. Co. (1884), 59 Wis. 364, 18 N. W. 328.
The Washburn Case construed sec. 1849, R. S. 1878, which provided that, on appeal to circuit court from the award of the commissioners in railroad condemnation, costs should be allowed to the successful party on the appeal and added to the amount of the verdict if allowed in favor of the landowners or deducted from the verdict if allowed in favor of the condemnor. In Trempealeau County v. Marsh, supra, the statute involved was one of general application to eminent-domain proceedings. It contained language identical to that construed in Washburn.
The explicit language of a statute directed to a specific situation was abandoned by the 1959 legislature in favor of reference to the provisions of a general statute under the circumstances pointed out by the majority. The Jonas Case, supra, insofar as it adheres to the costs rule of Trempealeau County v. Marsh, supra, and Washburn v. Milwaukee and Lake Winnebago R. Co., supra, should be overruled.
The majority disregards that portion of sec. 32.05 (10) (b), Stats., which provides that on an appeal from a commission award to circuit court, “The court shall enter judgment for the amount found to be due after giving effect to *435any amount paid by reason of a prior award.” It is in this context that the statute further provides, “Costs shall be allowed pursuant to s. 271.02 (2).”
Sec. 32.05 (9) (c), Stats., relating to the commission’s award, states that all sums due shall be paid within seventy days after the date of filing of said award. Under sec. 32.05 (10) (a), the time for appeal of the commission’s award to circuit court is limited to sixty days after the date of filing. The only rational construction of these statutes, in my view, is that the legislature contemplated that the condemnor might appeal the commission’s award, then pay it, and thereby become entitled to entry of judgment in its favor and allowance of costs in the discretion of the trial court should the commission’s award be reduced. Cf. Norwegian Evangelical Lutheran Church v. Thorson, supra. Apparently this procedure was followed in Ramminger v. State Highway Comm. (1963), 22 Wis. (2d) 194, 125 N. W. (2d) 406.
I would reverse the judgment and remand it for allowance of costs to the plaintiffs, in the discretion of the court below.
I am authorized to state that Mr. Justice Hallows respectfully joins in this dissent.