Incorporation of Wayne

Opinion by W. D. Porter, J., . In a proceeding to incorporate the borough of Wayne, the court, of its own motion, referred the whole case to a master, and subsequently entered a decree of incorporation based upon the master’s report. Upon an appeal from said decree, by Hildebrand and others, we have, this day, entered a judgment of reversal; for the reason that, in a proceeding to incorporate a borough, the court of quarter sessions is without authority to appoint a master. In the original decree, the court ordered the costs to be paid by the borough. On July 10, 1899, after an appeal had been taken to this court, the learned court below modified as much of the former decree as relates to costs, so as to read as follows: “ Costs to be paid by the borough, including all costs for which the petitioners may be liable, or which may be paid by them, including stenographer’s and master’s fees, which are now taxed as follows: Orlando Harvey, Esq., master’s fee and expenses, $750, John E. McDonough, Esq., stenographer’s fees and expenses, $888, total $1,138, which are now ordered to be paid by the petitioners, to be refunded to them by the borough when finally incorporated.” The petitioners did not pay promptly, and the court granted a rule upon them to show cause why an attachment should not issue. It was pay or go to jail. To escape the dilemma, the petitioners appealed, and now assign for error the making of the above order. The costs taxed consist only of the fees and expenses of the master and the stenographer who assisted the master in the discharge of his supposed duties. Were these items properly taxable as costs in this proceeding ? “ Our fee bills were passed to cut up by the roots the power which had been exercised by the courts, of allowing fees, called compensatory, for services not specified in them:” Kline v. Shannon, 7 S. & R. 377. The right to receive and the liability to pay costs depends entirely upon statute. The fact that compensation for certain services is, by statute, made taxable as costs in one proceeding or one jurisdiction, does not render such compensation taxable in other proceedings and other tribunals, to which the [376] statute does not apply: Allegheny County v. Watt, 3 Pa. 462; Steele v. Lineberger, 72 Pa. 239. It has been held that the bill of a surveyor appointed by the court, under a rule authorizing such appointment in ejectment cases, is not taxable against the losing party as part of the costs of the case: Caldwell v. Miller, 46 Pa. 233. The court has no jurisdiction to appoint a master in a proceeding to incorporate a borough, and as a consequence it follows that no master’s fee can be taxed as costs, and with the fee of the master must go the fee of his assistant, the stenographer. The record shows that the court, of its own motion, appointed the master, and there is nothing upon the record to indicate that the appellants agreed to the appointment of the stenographer. There is nothing in the legislation regulating the incorporation of boroughs which authorizes the court to impose costs upon the borough, or the petitioners, or remonstrants. The only costs provided for in the statutes is that “said application and decree shall be recorded in the recorder’s office of the proper county at the expense of the applicants.'’ The inquiry lias nothing in common with private litigation, the interests of the public are involved, and parties have a right to be heard and to produce evidence as to the effect of the proposed incorporation upon those interests. The law does not provide that the active parties in the litigation may recover costs, one from the other, or either from the borough. They must each pay the witnesses, whom they ’subpoena or cause to be subpoenaed, and the clerk of courts his legal fees for filing-petitions and like services rendered for them respectively, but -they must consider the money as expended for the public good; they cannot get it back. The borough when incorporated cannot lawfully be required to pay any part of the costs, not even the' expense of recording, in the recorder’s office, the petition and decree. There being- no law authorizing the imposition of costs upon either the successful or unsuccessful parties to the litigation, each side knows at every stage of the proceedings how much money they have expended and what services they have voluntarily become liable to pay for. Had the court, in the present case, upon the application of all the parties, appointed an examiner, instead of a master, each party would have been liable to the ’examiner for the taking of such testi [377] mony as they, respectively, produced, but no part of the examiner’s fee could have been taxed as costs, and, as costs, recovered. All the assignments of error are sustained. Decree reversed.