Ralston & Richardson v. Dunaway , 123 Ark. 12 ( 1916 )

Kirby, J.,

(after stating the facts). It is contended by appellant that said section 4 of the act appropriating money in payment of the claim of Laura J. Dills is unconstitutional and in conflict with the Fifth Amendment of the Constitution of the United States in that it deprives appellants of their property without due process of law. It is not denied that the parties had the right to make the contract entered into nor that the claim was collected from the Government out of the appropriation of money made by Congress for payment thereof. Contracts for the payment of fees to attorneys contingent upon the collection of claims against the United States have been ’ upheld. Taylor v. Bemiss, 110 U. S. 42; Nutt v. Knut, 200 U. S. 12.

It will not be contended, that if this contract had been made for the collection of a claim against the Government for which an appropriation had already been made limiting the attorney’s fee to the payment, of not more than 20 per cent, of the amount recovered and making it unlawful to charge more than said amount, that an action could have' been maintained for the collection of more than said per cent, as provided by the terms of the Act of Congress making the appropriation for. the payment of the claim. Appellants contend however that their right to the compensation provided in the contract for service performed was.complete-upon the allowance of the claim by the Court of Claims and vested in them a right to the recovery from their client of an amount equal to one-third of the amount allowed on the claim. The phrase “The amount which may be allowed on said claim” in connection with the per cent, agreed to be paid as compensation refers necessarily to the amount collected and realized from the Government in payment bf the claim and not the mere order of the Court of Claims ascertaining the amount due the claimant and liquidating it by allowance. The Government was no more indebted to the claimant for the property taken or destroyed during the war, after the amount of it was determined and the allowance made by the Court of Claims and no more obligated to its payment than it was before. This was but a recognition of the justness of the claim that existed not because it was allowed by -said court, but because the claimants property had been taken by the Government under such' circumstances as required .it should make compensation therefor.

Neither was such allowance or judgment of the Court of Claims a satisfaction or payment of the claim, but only a determination by the tribunal authorized by the Gov-eminent to make it of the amount the Government recognized would compensate the claimant for the loss. Its payment could no more be compelled after than before such allowance. The parties to the contract knew and recognized this in making it and authorized the attorneys to prosecute the claim before any and all tribunals, courts and departments of the Government, before the Congress of the United States, or before any officer, commission, convention or tribunal, authorized to take .cognizance of the claim and authorized the officers .of the Government to deliver to the attorneys the check, draft, certificate or other medium of payment that was issued in settlement of the claim, giving a lien thereon in favor of the attorneys for said fee until its payment. In other words, it is manifest from the contract that the parties realized that the claim could only be paid by an appropriation voluntarily made by the Government and necessarily contracted with reference to such appropriation and the terms thereof. This appropriation was in effect conditioned upon the limitation of 20 per cent, only of it to the payment of any attorney’s fees contracted for by the claimant and binding upon the parties to such contract and certainly upon the ‘attorneys who accepted the 20 per cent, prescribed by the appropriation act and were paid same by the officers of the Government in the payment of the claim out of the appropriation made therefor. The attorneys nor the claimant had anything from which payment of the claim could be realized regardless of the justice thereof, nor under the terms of the contract was any debt created for the attorney’s services, regardless of their value, until the appropriation of the money was made by the Act of Congress. If such appropriation had never been made, nothing could have been realized by the client nor any debt created by the contract for the payment of any attorney’s fee.

In Ball v. Halsell, 161 U. S. 72, a case where the attorney was to be paid out of the amount of the claim recovered from the Government, the court said: “Although he prosecuted the claim before the Department of the Interior, and that department recommended payment of a certain sum upon the claim, yet before the sum had been paid or Congress had made any appropriation for its payment and therefore, before he had either recovered or received any money from the United States, or was entitled to any compensation by the terms of the contract, now sued on, Congress passed the Act of March 3,1891,” and held the attorney bound by the limitation of the fee prescribed by the Appropriation Act.

We are aware that in Moyer v. Fahey, 48 Wash. Law Rep. 691, the court decided a like question differently to the conclusion reached herein, but we do not regard the opinion as supported by sound reason or authority and do not follow it.

The judgment is affirmed.