Fuller v. Trs. of Deerfield Acad & Dickinson High Sch.

• Decision Date: 21 May 1925
• Citation: 252 Mass. 258,147 N.E. 878
• Parties: FULLER et al. v. TRUSTEES OF DEERFIELD ACADEMY AND DICKINSON HIGH SCHOOL et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

252 Mass. 258

147 N.E. 878

FULLER et al.

v.TRUSTEES OF DEERFIELD ACADEMY AND DICKINSON HIGH SCHOOL et al.

Supreme Judicial Court of Massachusetts, Franklin.

May 21, 1925.

Appeal from Superior Court, Franklin County; F. W. Fosdick, Judge.

Bill in equity by Arthur W. Fuller and others against the Trustees of Deerfield Academy and the Dickinson High School and others to compel an accounting for moneys received from the town of Deerfield and repayment thereof to town. Demurrers to bill were sustained, amendment permitted on payment of named sum, to be divided among defendants' attorneys, and petitioners appeal. Reversed in part.E. H. Abbot, Jr., and J. W. Allen, both of Boston, for appellants.

J. Noble and A. P. Loring, both of Boston, for appellees.

RUGG, C. J.

This is a suit in equity brought under G. L. c. 40, § 53, by ten or more taxable inhabitants of the town of Deerfield. The respondents are the trustees of the Deerfield Academy and Dickinson High School, hereafter called the academy, the town of Deerfield, hereafter called the town, and divers individuals alleged to be the selectmen, school committee, building committee, and treasurer of the town. The allegations of the bill, as amended, with which alone we are now concerned, in brief are that the academy is an educational corporation exclusively under private control and not a public school under the management of the town and not an institution of such character that the town could lawfully appropriate, pay, or contribute public money to its aid or support under the Eighteenth and Forty-Sixth Amendments to the Constitution of the commonwealth, and that in each of the years from and including 1918 to 1923 the town has unlawfully appropriated and paid to the academy stated sums of money; that the individuals as officers of the town have aided and abetted in making these alleged unlawful payments, and that all concerned in the transactions were cognizant of their unlawful nature. The prayer of the bill is to compel an accounting to the town of these sums of money and a repayment thereof to the town by the other defendants. All the defendants demurred.

[1][2] There is no general jurisdiction in equity in this commonwealth ‘to entertain a suit by individual taxpayers to restrain cities and towns from carrying out invalid contracts, and performing other similar wrongful acts.’ Steele v. Municipal Signal Co., 160 Mass. 36, 38, 35 N. E. 105, 106;Larcom v. Olin, 160 Mass. 102, 110, 35 N. E. 113;Prince v. Crocker, 166 Mass. 347, 358, 44 N. E. 446,32 L. R. A. 610;Sylvester v. Webb, 179 Mass. 236, 241, 60 N. E. 495,52 L. R. A. 518;Kelley v. Board of Health of Peabody, 248 Mass. 165, 169, 143 N. E. 39. The only ground on which residents of a municipality can invoke the aid of a court of equity with respect in general to the conduct of municipal affairs is set out in G. L. c. 40, § 53, in these words:

‘If a town or any of its officers or agents are about to raise or expend money or incur obligations purporting to bind said town for any purpose or object or in any manner other than that for and in which such town has the legal and constitutionalright and power to raise or expend money or incur obligations, the supreme judicial or superior court may, upon the petition of not less than ten taxable inhabitants of the town, determine the same in equity, and may, before the final determination of the cause, restrain the unlawful exercise or abuse of such corporate power.’

This statute is preventive. It is neither anticipatory nor retroactive. It was said in Hood v. Lynn, 1 Allen, 103, 104, that the aim of this statute was ‘to furnish a prompt and effective remedy to restrain cities and towns from raising, borrowing, or expending money for purposes not authorized by law, and to enable a minority to guard their rights and interests, when such unlawful acts were threatened or in contemplation.’ It was held in Carlton v. Salem, 103 Mass. 141, that an anticipatory bill could not be maintained under this statute, but there must be allegations of actual vote to raise or to pay money or to pledge credit for an illegal purpose. A well grounded expectation of such conduct is not enough to confer jurisdiction under the statute. Some one of the facts described in the statute is essential as the basis for jurisdiction. The statute does not authorize, on the other hand, the correction of wrongs wholly executed and completed. It is not retroactive. It does not include within its words the redress of an evil that is past and gone. It does not afford the relief which is provided for minority stockholders in a business corporation to obtain for its benefit remedy for wrongs done to it by its officers. The principles illustrated by cases like Brewer v. Boston Theater, 104 Mass. 378, and Hayden v. Perfection Cooler Co., 227 Mass. 589, 116 N. E. 871, cannot be invoked under this statute with any due regard to its words. Of course, no surreptitious attempt to outwit the statute, as in Frost v. Belmont, 6 Allen, 152, can be tolerated, and under such circumstances relief would be afforded even though there had been a payment under the illegal vote. Russell v. Tate, 52 Ark. 541, 13 S. W. 130,7 L. R. A. 180, 20 Am. St. Rep. 193, is a case similar to Frost v. Belmont. But nothing of that nature is set forth in the present bill. The acts of which complaint here is made must have been open and thoroughly known to everybody, because they are alleged by implication to have been the result of votes or action taken in six successive years in that most public of all governmental assemblies, the town meeting of a New England town. The case of Welch v. Emerson, 206 Mass. 129, 91 N. E. 1021, is no authority in support of the plaintiffs' contention. Continued future payments were there contemplated. Decisions like Webster v. Douglas County, 102 Wis. 181, 77 N. W. 885,78 N. W. 451,72 Am. St. Rep. 870, and Chippewa Bridge Co. v. Durand, 122 Wis. 85, 99 N. W. 603,106 Am. St. Rep. 931, are distinguishable because rendered in a state where the subject is within general equity jurisdiction and is not controlled by statute. But it is doubtful whether even under that doctrine the present bill sets out ground for relief. See Frederick v. Douglas County, 96 Wis. 411, 71 N. W. 798, and First Wisconsin National Bank of Milwaukee v. Catawba, 183 Wis. 220, 197 N. W. 1013, 1018.

[3] It follows that the demurrers were sustained rightly.

[4] The order sustaining the demurrers gave permission to the plaintiffs to amend their bill on or before a named date on condition that the amendment be accompanied by $400 imposed as terms to be divided equally between two attorneys for the benefit of the several defendants whom they respectively represented. From this order the plaintiffs appealed. The plaintiffs moved to amend their bill after the demurrers were sustained, but the amendment by direction of the judge was not received and was returned and a final decree was entered dismissing the bill with costs to each defendant, because there was no compliance with the order to pay $400. From this the plaintiffs appealed. It is manifest that the order for the payment of $400 as terms for the amendment of the bill was not in way of costs. The total costs taxed in the final decree amounted only to $175.32. We infer that the order was founded on the idea that the court had power to impose as terms for the allowance of the amendment the equivalent of something in way of counsel fees for the defendants. We are of opinion that it was beyond the power of the court to impose such terms on any principle of equity practice now prevalent in this commonwealth.

[5] A nominal counsel fee is allowed as an item of taxable costs in civil causes. G. L. c. 261, § 23. Ordinarily no other attorney's fee is allowed. It is provided by G. L. c. 261, § 13, that in suits in equity ‘costs shall be wholly in the discretion of the court, but no greater amount shall be taxed therein than is allowed for similar charges in actions at law.’ ‘Taxable costs are in contemplation of law full indemnity for the expenses of a party who is successful in a suit between party and party, whether at law or in equity. Newton Rubber Works v. de las Casas, 182 Mass. 436.’ Rowland v. Maddock, 183 Mass. 360, 365, 67 N. E. 347, 349;McIntire v. Mower, 204 Mass. 233, 237, 90 N. E. 567.

It cannot be thought that the power to impose terms as a condition of allowing amendment of pleadings conferred in G. L. c. 231, § 5, authoizes the imposition of terms in excess of what could under any circumstances be included in taxable costs. If the rule-making power of the courts under G. L. c. 213, § 3, second, extends to such a matter, the court has not yet exercised its power to that end. No rule of court expressly or by implication authorizes such terms as were here imposed.

The allowance of counsel fees in excess of those included in taxable costs often has been made the subject of statutory regulation. The power to award counsel fees in contested will cases does not exist apart from express statute. G. L. c. 215, § 45; Brown v. Corey, 134 Mass. 249;Willard v. Lavender, 147 Mass. 15, 16 N. E. 582;Ensign v. Faxon, 224 Mass. 145, 148, 112 N. E. 948. The allowance of counsel fees in divorce and separate maintenance proceedings is founded on express statute. G. L. c. 208, § 17; Id., c. 209, § 33; Churchill v. Churchill, 239 Mass. 443, 446, 132 N. E. 185. ‘Counsel fees' are allowed in the discretion of the court by G. L. c. 246, § 68, to persons summoned as trustees under trustee process. Reynolds v. Missouri, Kansas & Texas Railway, 224 Mass. 253, 112 N. E. 859. There is express provision for compensation for counsel of a guardian ad litem in suits in equity to quiet title to land. G. L. c. 240, § 9. Even the words, ‘costs and expenses,’ in a statute have sometimes been held not broad enough to include counsel fees, although in other connections such fees have been held to be so...