Sears v. Inhabitants of Town of Nahant
| Decision Date | 18 June 1913 |
| Parties | SEARS et al. v. INHABITANTS OF TOWN OF NAHANT. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Tyler, Corneau & Eames, of Boston, for petitioners.
Samuel H. Hudson and Philip Nichols, both of Boston, for respondents.
In this suit brought in the superior court for the abatement of a tax, no abatement was granted; and the main question is whether counsel fees are to be allowed to the respondent town. The decision depends upon the construction of R. L. c 12, § 81 (now St. 1909, c. 490, pt. 1, § 80), which so far as material reads as follows: If the word 'expenses,' as used in this statute, includes counsel fees, the question must be answered in the affirmative; otherwise in the negative.
Although from early times there always have been provisions for the abatement of taxes (Anc. Ch. pp. 70, 250, 475, 610; St. 1785 c. 50, § 10; Rev. St. c. 7, §§ 37, 38, 42; Gen. St. c. 11, §§ 45-48; Pub. St. c. 11, § 71), still, until St. 1882, c. 218, neither the assessors nor the county commissioners could allow costs to either party (Lowell v. County Commissioners, 6 Allen, 131). This last statute provides that when an abatement is made the county commissioners may make such order relating to the payment of costs as justice may seem to require, provided, that costs shall not be allowed to one who has failed to file the list required by law. This statute provides for costs only in cases where an abatement is made. There seems to be no statute, even up to the present time which authorizes the county commissioners to make an order as to costs in cases where no abatement is made.
The statutes authorizing appeals by the tax payer from the assessors to the county commissioners are still in force and are frequently invoked. By St. 1890, c. 127, an additional remedy was given to the taxpayer by an appeal to the superior court. Here the case is tried by the judge without a jury, and either party may take exceptions to the rulings and decisions of the judge upon questions of law arising upon the trial, in the same manner and with the same effect as in other cases there tried without a jury. The object of the statute seems to have been to give to the tax payer the right at his option to have his case heard by a tribunal likely to be more learned in the law than the county commissioners, and where the questions of law can be more directly and expeditiously raised and settled. Since the passage of this statute he may appeal either to the county commissioners or the superior court at his option. If he appeals to the first, costs at the discretion of the tribunal may be taxed in case an abatement is made, but never if an abatement is refused. If he appeals to the second, then in case the abatement is refused there is to be judgment against him in favor of the city or town for 'its expenses and costs to be taxed by the court.' There is no trial by jury in either tribunal.
The question whether counsel fees are included in this word expenses is a narrow one and yet its solution is attended with some difficulty. As was said by Rugg, C.J., in Burrage v. County of Bristol, 210 Mass. 299, 300, 96 N.E. 719, 720: 'The word 'expenses,' although broad enough to include counsel fees, is of varying significance, dependent upon the connection in which it is used.'
The word seems to have been early used in the statutes concerning trustee process. By St. 1794, c. 65, § 3, a trustee under certain circumstances was allowed his legal costs, and such further costs as with his legal costs should under all the circumstances of the case be a reasonable compensation to him 'for his time and expenses in appearing and defending himself in the suit.' This was amended in St. 1830, c. 128, § 2 (passed March 13, 1830), so as to read 'an amount sufficient to pay his reasonable counsel fees and other necessary expenses.' In Rev. St. c. 109, § 49, the phrase is 'his costs for travel and attendance and such further sum as the court shall think reasonable for his counsel fees and other necessary expenses.' And substantially in this last form has the provision continued to the present time. In R. L. c. 189, § 67, the phrase is, 'costs for travel and term fees, and such further amount for counsel fees and other necessary expenses as the court may allow.' It is obvious that if the word expenses as used in St. 1794, included counsel fees, there was no need of the amendment made by St. 1830, nor of the retention of both terms in the subsequent statutes.
St. 1848, c. 222, giving to the Hadley Falls Company authority to construct a dam across the Connecticut river, provided that the corporation should pay damages suffered by owners of fishing rights. The damages, upon the application by either party, were to be assessed by the county commissioners subject to an appeal to a jury, as in the case of land taken for a highway; 'and all expenses accruing under such application to and determination by the county commissioners shall be borne by the Hadley Falls Company.' This court, after saying that 'we should allow a liberal taxation for all expenditures for plans, surveys,' etc., added however these words: 'We cannot suppose that the Legislature intended to embrace counsel fees in the above provision, and the claim [for counsel fees] must therefore be disallowed.' Marshall Fishing Co. v. Hadley Falls Co., 5 Cush. 602, 605.
Pub. St. c. 156, § 35, provided that in contested cases in the probate court or in the Supreme Court of Probate, costs in the discretion of the court could be 'awarded to either party to be paid by the other or to either or both parties to be paid out of the estate, as justice and equity may require.' In Brown v. Corey, 134 Mass. 249, decided in 1883, it was adjudged that the court had no power to allow counsel fees or other expenses as costs in addition to the taxable costs. The very next year, probably as the result of this decision, the statute was amended by adding after 'costs' the word 'expenses.' St. 1884, c. 131. In Willard v. Lavender, 147 Mass. 15, 16, 16 N.E. 582, 585, it was said by Morton, C.J., that 'the purpose of the amendment was to give the courts of probate power, in contested cases, to award to either party costs as between solicitor and client, and the expenses of the suit to be paid by the adverse party, or out of the estate, in the discretion of the court, in analogy to proceedings in equity on bills for instructions by executors or trustees.' Under this statute which ever since has been in force it has been the practice, where justice and equity required, to allow as a part of the expenses a moderate sum for counsel fees, based upon the rule stated in Willard v. Lavender.
R. L. c. 165, § 44, provides that 'the expenses and costs of the inquiry and proceedings * * * for the removal of an attorney shall be paid as in criminal prosecutions. In Burrage v. County of Bristol, ubi supra, it was held that the word 'expenses' in this statute includes 'counsel fees.' In giving the opinion Rugg, C.J., after stating that such a proceeding was a matter of vital interest, proceeds to state the main ground upon which the decision rested in the following language: Briefly stated, the ground of the decision was that the acquiescence of the Legislature for two generations in the interpretation given in practice to its own language susceptible of two meanings, is ground for holding that this interpretation is in accordance with the legislative intent.
In Whitney v. Lynn, 122 Mass. 338, which was a...
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