in re Selectmen of Town of Norwood
| Decision Date | 11 March 1903 |
| Citation | 66 N.E. 637,183 Mass. 147 |
| Parties | In re SELECTMEN OF TOWN OF NORWOOD et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
J. J. Feely, for town of Norwood.
Chas F. Choate, Jr., for railroad company.
This case comes up on the appeal taken by the selectmen of Norwood from a decree of the superior court, confirming, with certain modifications, the seventh report of the auditor. The only matters dealt with in the auditor's seventh report are items presented for allowance as part of the joint expense to be paid by the town, the railroad and the commonwealth, under St. 1890, c. 428, § 3. The principles on which the question of including or not including such items is to be decided have been settled in the cases of B. & A. R. R. v Charlton, 161 Mass. 32, 36 N.E. 688, and Providence & Worcester R. R. Co., Petitioner, 172 Mass. 117, 51 N.E. 459 to be that the expenses incurred by any of the parties in a controversy before the commissioners as to what their report shall be are not to be allowed, but the expenses of carrying out the scheme of the commissioners are to be allowed. The rule is one easy of application, and was rightly applied by the superior court. The railroad took six exceptions to the allowance by the auditor of as many items, these exceptions were sustained by the decree of the superior court, the items were disallowed, and the appeal from that decree brings up the correctness of the disallowance by the court of these items which were allowed by the auditor.
The items covered by the first, fifth, and sixth exceptions may be considered together. The first exception relates to the first, the fifth to the eighth, and the sixth to the seventeenth items in the auditor's report. The first item is 'for work done and services rendered at various times for the purpose of enabling the original petitioners to present to the commissioners a plan for the abolition of the crossings at grade, and for attendance at the various hearings held by the commissioners'; the eighth item is for surveying and preparing plans 'for use at the hearings before the commissioners, and in accordance with certain suggestions made by the commissioners as to the manner in which the crossings should be abolished'; and the seventeenth is for the sum paid by the town to Mr. Endicott, the engineer employed by it for making surveys and plans at the special request of the commissioners, 'who desired that certain changes should be made in the plans presented by the town and the railroad, that the commissioners had certain ideas of their own which they wished to put into proper form, and a plan made to conform to their views--accordingly Mr. Endicott was requested to make such surveys and plans, and the plans so made formed a part of the commissioners' report, and was annexed thereto.' These were rightly taken by the superior court to have been expenses incurred by the town in a controversy as to whether the plan it wished to have adopted should be adopted. The town evidently took advantage of suggestions made by the commissioners as to what might commend itself to them, and incurred these expenses in working out its plan to their satisfaction. Such an expense is not an expense of the hearing, but an expense of one of the parties to the controversy, which, in ordinary actions between party and party, must be borne by the one who incurs it, unless it can be recovered as a taxable cost. In proceedings under St. 1890, c. 428, such expenses must always be borne by the party incurring them, for in these proceedings no provision is made for the recovery of any costs by the successful party to a controversy which take place in the course of them. The only cost of the hearing which is to be included under section 7 in the expenses to be paid by the town, the railroad, and the commissioners under section 3, is the expenses incurred by the commissioners as a court, and they are allowed as part of the expense, under section 3, 'to protect the public treasury from the...
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