
    NATHAN TANNER v. THE UNITED STATES ET AL.
    [Indian Depredations, No. 1723.
    Decided February 8, 1897.]
    
      On Allowance and Waiver of Attorneys’ Fees.
    
    The Indian Depredation Act, 1891, declares all contracts for fees and allowances in Indian depredation cases theretofore made, void; and provides that the court shall fix the amount of fees to he paid attorneys and make them part of the judgment. Claimant’s attorneys move for leave to waive the allowance of any fee in the judgment.
    I.The Indian Depredation Act, 1891, contemplates a judicial finding and judgment upon the subject of fees in each case, and transfers all power over the subject of fees to the jurisdiction and control of the court.
    II.The policy of the statute is to give the court and not the parties the right to settle the measure of compensation to the attorney.
    III.An attorney can not waive an allowance by the court unless he waives all compensation from the client.
    
      The Reporters’ statement of the case:
    The claimant’s attorneys’ motion was for leave to waive an allowance of fees to the attorneys, in the judgment.
    
      
      Mr. William JB. King for tbe motion.
    Our contention, is that tbe purpose of tbe act was:
    (1) To relieve tbe claimant from obligations wbicb bad been entered into at a time when tbe prospects of recovery of bis claims were vague and uncertain, and to remit tbe claimant and bis attorneys to a new position of perfect equality in negotiating tbe terms upon wbicb tbe claims, then for tbe first time assured of a judicial determination, should thereafter be prosecuted.
    (2) To give tbe attorney absolute security for bis fees and expenses up to tbe limit fixed.
    (3) To leave tbe payment of further compensation entirely within tbe claimant’s control, except as this might be governed by tbe ordinary processes of law.
    This construction gives full weight and effect to every word of this statute, extraordinary though its remedy, but it does not carry tbe statute further than its own terms.
    Light has been thrown upon tbe true construction of this act by several judicial decisions.
    In Bachman v. Bateson (109 U. S.,.659) the plaintiff bad been employed by tbe defendants to collect an “Alabama claim” at “a compensation equal to twenty-five per cent” of tbe amount collected. Upon tbe establishment of Court of Commissioners of Alabama Claims, tbe defendants refused to recognize their contract, employed other attorneys, and upon payment of tbe claim refused any compensation to tbe plaintiff. Tbe defendants relied upon section 18 of tbe Act of June 23, 1874 (18 Stat. L., 249).
    It is to be noted, in comparing this act with tbe act of March 3,1891, that tbe Court of Commissioners of Alabama Claims was not limited in tbe amount of compensation to be allowed; that tbe allowance is expressly declared to be “in full compensation and that contracts are not expressly declared void. Tbe act of 1891 limits tbe allowance by tbe court but does not declare that tbe allowance shall be “in full compensation,” and declares existing contracts void. The Supreme Court sustained tbe judgment of tbe court below for tbe amount agreed upon by tbe parties.
    
      In Bed-field, v. United, States (27 C. Ols. R., 473), in J une, 1892, after elaborate argument, tbe court, citing section 9 of tbe act of March 3,1891, says (p. 481):
    “This we regard as like tbe taxable costs in actions at law, which the jiarties themselves can not fix by contract.” (Rev. Stat., §§ 823, 824.)
    Revised Statute, section 823, here cited, after declaring that “the following and no other compensation shall be taxed and allowed to attorneys” and others, declares:
    “ But nothing herein shall be construed to prohibit attorneys, solicitors, and proctors from charging to and receiving from their clients, other than tbe Government, such reasonable compensation for their services, in addition to the taxable costs, as may be in accordance with general usage in their respective States, or may be agreed upon between the parties.”
    In Ball v. Halsell (161 U. S., 72) a suit was brought by an attorney, under a contract made in 1874, to pay him one-lialf of “all money which may be received by him” upon an Indian depredation claim. The Supreme Court held that this contract, which it declared “was contrary to the express terms of the act of Congress of 1853,” could not be enforced.
    In the opinion, the court said as follows (pp. 83, 84):
    “As was said by Chief Justice Taney, ‘It is an established principle of jurisprudence, in all civilized nations, that the sovereign can not be sued in its own courts, or in any other, without its consent and permission; but it may, if it thinks proper, waive this privilege, and permit itself to be made a defendant in a suit by individuals, or by another State. And as this permission is altogether voluntary on the part of the sovereignty, it follows that it may prescribe the terms and conditions on which it consents to be sued, and the manner in which the suit shall be conducted, and may withdraw its consent whenever it may suppose that justice to the public requires it.’ (Beers v. Arkansas, 20 How., 527, 529; In re Ayers, 123 U. S., 443, 505; Hans v. Louisiana, 134 U. S., 1, 17.)
    * # # # * # *
    “The restriction of the compensation of attorneys to the amounts so allowed by the court was one of the terms and conditions upon which the United States consented to be sued.”
    The last quoted sentence must be considered strictly in reference to the case before the court and can only mean that the restriction as applicable to that case under all the limitations of the act ivas one of the terms upon which the United States consented to be sued; otherwise, it is an expression quite outside the decision. It can not mean that the consent of the United States to suit is based upon the claimant and attorney accepting the allowance of the court as full compensation, since, in that event, a contract executed after March 3, 1891, or a declaration on the part of the claimant that he intended to pay a larger fee would be a valid defense against the claim or the receipt of a larger fee a ground for new trial, because “wrong and injustice” had been done the United States. Viewed in its largest possible extension, it can mean nothing more than that no legally enforceable right exists beyond the fee allowed by the court.
    There is no inconsistency between these three decisions. The first declares that the granting to the court of the power of taxing fees does not of itself make void any contracts for fees outside of the amount taxed. The second is a declaration that the taxation of fees by this court is its sole jurisdiction over the question of fees. The third declares that a contract (void in its inception) entered into prior to the passage of the act was void under the terms of the act.
    Having thus presented these decisions, we revert now to the questions submitted by the court in its memorandum, believing that the foregoing discussion has thrown light upon them.
    Can the court recognize a waiver of attorneys’ fees?
    The court has already answered this by the settled practice of six years. In fifteen cases personally known to us the attorneys’ fees have been waived. Certainly this practice can not now be overturned, unless it is clearly shown to be without warrant of law. Good reasons doubtless led the court to adopt this practice, and the principle of stare decisis calls for an adherence to it. Some of these reasons can be suggested.
    (1) The court has declared that it is exercising a power similar to the taxing power, and costs are never taxed where the party entitled to them waives his right to them.
    (2) The allowance of fee by the court 'and its payment directly to the attorney by the Treasury Department is a privilege granted to him in compensation for taking away his possession of the claimant’s warrant as security for his fee. The privilege can not be forced upon him; he can not have a judgment in his favor unwillingly. He may waive his privilege, but in so doing is remitted entirely to sucb arrangement as may voluntarily be effected between him and his client or to the processes of law, if the contract is legally enforceable.
    (3)- It helps the determination of this question by asking what would be the action of the court if an attorney waived certification of a sum in excess of 5 per cent, either under an agreement with the client or otherwise? Would the court thiuk it necessary to investigate the value of his services and pay him an additional fee? The court has already answered in the negative in the case of Abram T. Litchfield, No. 2563, where a judgment was entered on February 13, 1893, for $10,190, and the attorney then of record was allowed $500, having declared that he had a contract with the claimant for that amount. It would hardly have been sensible to award him more than he claimed. If the court had allowed him more than his contract, it would seem clear that the claimant would have had a right to recover the difference between the amount agreed upon and the amount paid him, as money had and received to the use of the claimant. The same rule should apply where the attorney waives the privilege of the statute entirely.
    The second question asked by the court is as to the effect of such a waiver upon the rights and professional obligations of an attorney.
    (1) His legal right to a fee outside of the allowance by this court must rest upon the decisions in proper cases by courts having jurisdiction over the controversy. The Supreme Court has perhaps settled one branch of this subject by declaring that an attorney under certain circumstauces has no legal right of suit under a contract existing prior to the statute. Other suits will doubtless be brought in other courts to determine the rights of an attorney under contracts made after the statute, either receiving or not receiving a fee allowed by this court. Whatever the proper court decides will settle the rights of the parties in the particular case. The effect of the allowance of a fee by this court and its acceptance by the attorney, or of the waiver of certification, must be determined by the courts of local jurisdiction. No action or non action by this court can affect the rights of the parties to pursue their legal remedies in local jurisdictions. If the claimant refuses to pay a fee and these courts decide that the attorney has no remedy, then be has lost any legally enforceable right 'to a fee by bis waiver. But whatever decision be reached, he has a right to appeal to the courts for a redress of what he deems a wrong.
    (2) Another legal right of the claimant and the attorney, not 'affected by a waiver, is that the attorney may ask and the claimant p>ay such fee as to each may seem fit. If there is no right of action for such fee, still there is no prohibition of its payment or receipt. The amount of the judgment having passed into the hands of the claimant, it is his privilege to disburse it as he pleases. It is equally the right of any person to whom he wishes to pay it to receive it, unless some positive provision of law declares that he shall not receive it.
    If the claimant voluntarily, without deception, pays the attorney any portion of the amount received, he is under no obligation to decline it. He has a right to set forth to the claimant such facts as in his judgment entitle him to a fee. Congress has put the claimant in a position of advantage, depriving the attorney of all lien. It is even contended that it has taken away any right of action to enforce a contract with the claimant. If this be so, the attorney’s position is not unlike that of an assignee of a Government claim; “the statute does not attach any turpitude” (Bailey v. United States, 15 C. Cls. B., 511) to a contract outside the allowance of the court; and it may then be said that the contract was “a nullity, but there was nothing contrary to morals or conscience in the payment or receipt of the money.” (McKnight v. United, States, 98 U. S., 185; see Lopez v. United States, 27 C. Cls. B., 100.) But it can not be asserted that Congress has gone so far as to say that the attorney, through whom the money is secured to the claimant, is the only person in the world to whom he shall have no right to pay such share of it as he wishes.
    A case may readily be supposed where, in spite of the action of Congress, there is a moral obligation on the part of the claimant'to pay the fee originally agreed upon with his attorney, even if the courts should hold that no legal obligation exists. Let it be supposed that twenty-five years ago a claim was placed in the hands of an attorney for prosecution, with an agreement that in case of success a fee equal to 25 per cent of the amount collected should be jiaid; that the application and evidence were prepared by this attorney or his representative, in the form required by the rules of the Interior Department and the claim placed on file; that the claim was then referred to an Indian agent and due effort then made by the attorney or his representative to bring witnesses before the Indian agent; that the case was then followed up before the Indian Bureau and delays prevented; that the claim was allowed upon the evidence thus supplied and reported to Congress; that bills were prepared for the payment of the claim by special act of Congress; that arguments were written and presented to Congress showing why relief should be extended to this claimant; that partly in consequence of these very acts a further executive examination was provided for; that the case was called to the attention of the Interior Department again; that it was sent to a special agent in the field; that witnesses were duly notified to appear before the special agent; that upon the return of the claim from the special agent due attention was paid to it; that it was allowed by the Commissioner of Indian Affairs and the Secretary of the Interior and reported to Congress; that bills were again prepared and presented to Congress for payment of the claim and arguments urged in favor of judicial relief; that an act of Congress, partly the result of just such arguments, was passed giving a judicial determination; that the claimant then ratified his original agreement; that the petition was then presented to this court; that a judgment was obtained; that charges were made in Congress affecting the validity of the judgment; that arguments were again presented to Congress showing why appropriation should be made, for payment of the judgment; that provision was made for a reexamination of the case substantially in the manner suggested by the claimant’s attorney; that the cáse was reexamined and a motion for new trial filed; that the motion for new trial was argued and successfully resisted, and that the claim was finally paid. Can the court say, under these circumstances, after faithful work for many years, after labor diligently performed before many tribunals, after final success as the result of the attorney’s unceasing efforts, whatever may have been the action of Congress as to legal remedies, that there was no moral obligation on the part of the claimant to pay the attorney what he had expected to receive from the beginning and what had formed the consideration for all his work?
    
      It is a pleasure to us to say that our own services, beginning in some cases as far back as 1807, have in many cases so commended themselves to the consideration of our clients, where these have been men of experience in business affairs, accustomed to the ordinary commercial standard of honor and acquainted with the value of professional labor, that they have assured us that they would permit nothing in the act of Congress to stand in the way of their freely paying us such fee as had been originally agreed upon.
    It is in the light of the conditions thus recited that Ave respond to the question of the court as to the effect of a waiver upon the rights and professional obligations of an attorney by saying that it does not affect his right to receive what his client is willing to pay him, whether by virtue of a legal or a moral obligation, or his right to pursue against his client such remedy as the courts of the country may find open to him.
    jlír. J. W. Smith in support of the right of waiver:
    Whence comes the Federal legislative power to declare void private contracts, valid in their inception, is puzzling; the more so if forfeiture of wages, contingent or vested, earned up to that time under the contracts, is to be the result.
    Except as implied in the attempt to give the court jurisdiction to adjudicate quantum meruit between two citizens, and to fix the fee above or below that agreed upon by parties competent to contract, this strange law does not assume to make invalid contracts made after its date, fior to require advance fees to be returned in the event of failure, nor to deny the attorney’s right to sue for the contract or quantum meruit compensation in the event of judgment going against the claimant. It follows that in all cases where the fee was not expressly agreed to be contingent on success, the law, in prescribing a maximum for this court and leaving the common law courts free to award full quantum meruit in lost cases, makes it the attorney’s interest, to some extent, to let judgment go for defendants.
    Such legislation assumes to rest on one or both of two theories.
    
      (a) That the United States may burden its assent to suit with conditions.
    
      
      (b) That Congress may legislate for tbe betterment of tlie bar and practice of tliis court.
    First of (a):
    
    If by conditions is meant limitations, the position is conceded. But if by conditions it is meant that Congress may thereby do what it can not do openly and directly, the position is denied. Congress can not openly and directly confer on this court, having no jury, power to adjudicate a matter of indebtedness between two citizens. Can it do the same thing under the guise of a condition to its assent to suit? If so, what may it not do under that guise? It may assent to suit on condition that the claimants marry, separate, buy, sell, convey, devise, vote, according to rules set out in the assenting statute. A moment’s reflection shows that the condition must be restricted; and there is no stopping place for the restriction short of a limitation of the Government’s full suability. The condition becomes invalid the moment it extends beyond the sovereign’s interest and protection.
    Now the sovereign has no possible interest in the matter of this fee. It does not pay it; it pays only its debt, the judgment, and that it pays just the same whether the attorney’s fee be large or small. It is only on the theory, wholly inadmissible, that the purpose of the statute was to lessen judgments against the United States by interesting claimant’s attorneys to lose their cases or by fixing the fee so low as to exclude valuable legal talent from the claimant’s side that any interest for theUnited'Statesor ground for this provision' as a valid condition to the assent to suit can be found.
    A matter does not become justiciable until the parties to it disagree, at least pro forma. Till then it does not fall within the domain of judicial power. If claimant and attorney come into this court and say “we are agreed; we do not ask, or want, or need any decree in aid or protection of either of us,” what is there of a judicial nature for the court to base any action on? Does public policy require that now, after a struggle of a thousand years to substitute contract for arbitrary power, the back track shall be taken arid arbitrary settlements shall be forced on individuals in lieu of ones agreed to by them? And of what avail will it be, leaving each, as it will, free to remit the surplus to the other ? The only answer of course is that if an adjudication of the fee be made here that judgment may be pleaded as a defense to any suit below, respecting the fee. And that answer is an admission of the point made above that the provision in question is not, in reality, a condition to the assent .to suit, but an attempt to give to this court a jurisdiction that constitutionally belongs to the common-law courts of the country.
    A judgment is not given, can not be, to the attorney for his fee. Therefore he can not appeal. Can that adjudication be deemed “due process of law” or the “law of the land” which is effected without jury, judgment, or right of appeal? And which is payable only out of a specified fund — even where the contract, made after March 3, 1891, imposes no such contingency?
    Again, the fee adjudication of this court, if final, concludes the claimant as well as the attorney, even though it be for more than the agreed compensation. The invalidation of the contract cuts both ways, if it cuts at all. Either the contract should conclude, or it should not enter into the consideration.
    And then it is to be borne in mind that only in exceptional cases is the United States the principal judgment debtor. In all other cases the judgment against the United States is in the nature of a “judgment over.” Prior to 1891 there was no law that assumed to make claims or judgments against Indian tribes nonassignable.
    As to (1)):
    Clearly the statute is not based upon this theory — to better the bar and practice of this court. Such was evidently not.the purpose in view. It gives the court no power it had not before to punish the bar for overcharging. It leaves every member of the bar as free as before to take these cases. Its necessary effect has been to lower the standard of the bar by excluding such legal talent as could command a higher than the statutory compensation — this in face of the fact that some of the test cases called for the best talent the bar could supply.
    But of a higher nature and importance than any of these constitutional or statutory considerations is the great duty now resting on the profession, whether on the bench or at the bar, to take a determined stand against the present world-wide tendency to yield the field of private contract to socialistic nostrums. Modern civilization owes its chief value to the greatness of the unit, the individual, and for that greatness he is chiefly indebted to the stalwart mental exercise he has found in the broadened field of private contract. That field is in less danger from open attack than from just such insidious encroachments as this provision — not few now, nor growing less.
    
      Mr. Silas Hare and Mr. John W. Ciarle were also heard for the allowance of the waiver.
   Weldon, J.,

delivered the opinion of the court:

The attorneys of record have filed a waiver of all claim for fees, in order, as we presume, to adjust the measure of their compensation either upon the basis of a contract already made or upon one to be made after the rendition of the judgment.

The court in a few cases has, upon a waiver of a claim for fees upon the part of the attorney, given judgments for the whole amount to the claimant; but since the rendition of the last judgment in that form the court has reconsidered the subject of fees as affected by the provisions of the act of 1891, and has reached the conclusion announced in this opinion.

The act provides in substance that all contracts heretofore made for fees and allowances to claimants’ attorneys are declared void; that all warrants issued by the Secretary of the Treasury in payment of judgments shall be made payable and delivered only to the claimant, or his lawful heirs, executors, or administrators, or transferees under administrative proceedings, except so much thereof as shall be allowed the claimant’s' attorney by the court for prosecuting the claim, which may be paid direct to such attorney; and the allowance to the claimant’s attorney shall be regulated and fixed by the court at the time of rendering judgment in each ease and entered of record as part of the findings thereof; but in no case shall the allowance exceed 15 per cent, unless in special cases specified by the statute.

Ordinarily the law leaves the subject of fees to be regulated by the parties — the client and attorney; but to that general rule there are some notable exceptions. In judicial proceedings affecting partition of land between coparceners, the usual practice of common-law courts regulated by statute is to fix the compensation of attorneys engaged in the partition; and in pension cases the fee of the attorney is fixed by statute, with heavy penalties for a violation of the law. (Supp. to Rev. Stat., vol. 1, 2d ed., p. 451.)

The act of 1891 contemplates a judicial finding and judgment upon the subject of allowance of fees by providing “ that the allowance of attorneys’ fees shall be regulated and fixed by the court at the time of rendering judgment in each case, and entered of record as part of the findings.”

Congress, by the terms of the statute, seems to have discriminated between the interests of claimant and attorney by specifically providing that the court shall, in the adjudication of the cause, settle by separate finding the rights of each, as in some of the States counsel fees are regarded as a part of the judgment of the court and are to be settled by the finding as one of the questions incident to the litigation.

The ninth section of the act provides that “ all contracts heretofore made for fees and allowances to claimants’ attorneys are hereby declared void.”

The direct effect of that provision of the law is to supersede the existence and legal effect of all contracts, by declaring them void, and by the transfer of all power over the subject of fees to the jurisdiction and control of the court.

The policy of the statute seems to be to give to the court, and not to the parties, the right to settle the measure of compensation to the attorney; and for that purpose the law indicates by express provision the limits of compensation which by the judgment of the court shall be awarded to the attorney.

The fact that Congress has declared all existing contracts void is a very strong argument in favor of the theory that they intended that the court should in all cases settle the question of professional compensation, not leaving it either to contracts already in existence nor to such agreements as might be made between claimant and attorney after the rendition of the judgment.

In the early litigation incident to the Indian depredation act a question arose as to the right of attorneys to conduct and manage the suit of the same client, where both had been employed and where each had brought separate suits for the same cause of action. In the settlement of tlie controversy as to which was entitled to proceed and the rights of the retiring attorney, the court, by the late Chief Justice said: “The statute provided that the allowance to the claimant’s attorney shall be regulated and fixed by the court at the time of rendering tbe judgment in each case and entered of record as part of tbe findings thereof; but in no case shall the allowance exceed 15 per cent of the judgment recovered, except in cases of claims less than $500, or where unusual services have been rendered or expenses incurred by the claimant’s attorney, in which case not to exceed 20 per cent of such judgment shall be allowed by the court. (1 Supp. to Rev. Stat., 2d ed., p. 916.) This we regard as like the taxable costs in actions at common law which the parties can not fix by contract.” (R. S., § § 823, 824; Redfield v. United States, 27 C. Cls. R., 481.)

It is true the question of the right of the attorney to waive his fees was not before the court in that proceeding; but the court, as incident to the question of fees, gave construction to the act upon the subject of fees generally, and in that construction indicated very clearly the legal effect of the law upon the rights of the attorney and client on the subject of fees. In the very recent case of Ball v. Halsell (161 U. S., 72), coming from the Circuit Court of the United States of the northern district of Texas, the Supreme Court has in a very elaborate opinion in effect passed upon the question presented by the record iu this proceeding.

In that case an action was brought by the plaintiff, Ball, against the defendant Halsell, who was the executor of J. G. Halsell, upon a written contract, the substance of which is that the decedent appointed the plaintiff his attorney to prosecute claims against the United States on account of depredations of the Comanche and Kiowa Indians upon the property of the decedent, in consideration of which the plaintiff was to retain 50 per cent of all moneys recovered because of such depredations. The agreement bore date on the 25th of May, 1874. Under that power of attorney the plaintiff presented the claim to the Department of the Interior, upon which an allowance of $19,625 was made. No appropriation was made by Congress to pay the sum awarded. On the 6th of March, 1891, suit was brought by Ball, as attorney, under the act of March 3, 1891, and the sum of $17,720 was recovered, on which the court made au allowance of $1,500 to Ball as attorney’s'fees. The United States paid this sum to Ball and the balance to the executor of Halsell. Ball then brought suit in the Circuit Court of the United States for the 50.per cent of the judgment, less the sum of $1,500 paid under the judgment of the court.

In tbe defense tbe defendants relied on tbe action of tbe Court of Claims in allowing compensation to tbe plaintiff at $1,500 and tbe iiayment of tbe same. Upon tbe facts tlie Circuit Court came to tbe following conclusion of law: “ Tbe court being of tbe opinion that tbe said contract is rendered nugatory and tbe provisions therein made for compensation for said attorney, Thomas Ball, is superseded by tbe ninth section of tbe act of March 3,1891, and being of tbe opinion that said contract is not enforceable, and that tbe said statute above referred to fixes and provides for all tbe compensation which tbe attorneys prosecuting claims under said act are entitled to receive, judgment is rendered for tbe defendant.”

Tbe plaintiff being dissatisfied with tbe judgment, prosecuted a writ of error to tbe Supreme Court, and tbe Supreme Court in a very elaborate and able opinion by Mr. Justice Gray affirmed the judgment of tbe Circuit Court.

After the discussion of tbe question whether under former statutes it was lawful for parties to contract for contingent fees, and bolding that such contracts were not unlawful, tbe decision cites many cases in which tire court decided that contingent fees were not in violation of law or against public policy. (Wylie v. Coxe (1853), 15 Howard, 416; Wright v. Tebbits (1875), 91 U. S., 252; Stanton v. Embry (1876), 93 U. S., 548; Taylor v. Bemiss (1883), 110 U. S., 42.) “But,” the opinion continues, “Congress lias evidently considered that in some cases, at least, to permit contracts to. be made-for tbe payment to attorneys, by way of contingent fee, of a large proportion of the amount to be recovered, is in danger of leading to extortion and oppression.”

It was apparently owing to such considerations that Congress, in the Act of March 3, 1891 (cb. 538), when conferring upon tbe Court of Claims jurisdiction of claims arising from Indian depredations, including such claims as bad been examined and allowed by the Department of Interior, and providing that judgments of that court, unless reversed or modified on rehearing or appeal, should “be a final determination of tbe causes decided, and of tbe rights and obligations of tbe parties thereto,” enacted, in section 9, that “ all sales, transfers, or assignments of any such claims, heretofore or hereafter made, except such as have occurred in tbe due administration of decedents’ estates, and all contracts heretofore made for fees and allowances to claimant’s attorneys, are hereby declared void, and all warrants issued by the Secretary of the Treasury in payment of such judgments shall be made payable and delivered only to the claimant or his lawful heirs, executors, or administrators, or transferees under administrative proceedings, except so much thereof as shall be allowed the claimant’s attorneys by the court for prosecuting said claim, which may be paid direct to such attorneys; and the allowance to the claimant’s attorneys shall be regulated and fixed by the court at the time of rendering judgment in each case, and entered of record as part of the findings thereof; but in no case shall the allowance exceed 15 per cent of the judgment recovered, except in case of claims of less amount than $500, or where unusual services have been rendered or expenses incurred by the claimant’s attorney, in. which not to exceed 20 jier cent.

In view of previous experience, this last provision was a wise, reasonable, and just provision for the protection of suitors, and it was clearly within the constitutional power of Congress.

As was said by Chief Justice Taney:

“It is an established principle of jurisprudence, in all civilized nations, that the sovereign can not be sued in its own courts, or in any other, without its consent and permission; but it may, if it thinks proper, waive this privilege, and permit itself to be made a defendant in a suit by individuals, or by another State. And as this permission is altogether voluntary on the part of the sovereignty, it follows that it may prescribe the terms and conditions on which it consents to be sued, and the manner in which the suit shall be conducted, and may withdraw its consent whenever it may suppose that justice to the public requires it.” (Beers v. Arkansas, 20 How., 527, 529; In re Ayres. 123 U. S., 443, 505: Hans v. Louisiana, 134 U. S., 1, 17.)

Speaking of the statute of 1891, the court says:

“The act did not recognize either the lawfulness or the amount of the claim or make any appropriation for its payment, but it provided for its ascertainment and adjudication by judicial proceedings, and for the allowance, by the judgment of those proceedings, of a reasonable compensation to the attorney. The restriction of the compensation of attorneys to the amounts so allowed by the court was one of the terms and conditions upon which the United States consented to be sued.”

As lias been said, the statute also provides that “ all warrants issued by the Secretary of the Treasury in the payment of such judgments shall be made payable and delivered to the claimant or his lawful heirs, executors, or administrators, or transferees under administrative proceedings, except so much as shall be allowed claimant’s attorneys.” The rights of the claimant and attorney are dealt with separately and recognized as separate entities by every provision of the law where they are made the subject of recognition.

The law having provided that all existing contracts should be void, it would be unreasonable to assume that Congress intended that the parties should still be clothed with the power either to affirm the old agreements or make new ones in violation, it might be, of what Congress regarded as a reasonable compensation within the discretion of the court, circumscribed by the limits of the law. It is the opinion of the court that we are compelled, as a matter of law, to fix the fees of the attorney in each case, irrespective of the waiver of the attorney, unless it is shown to the satisfaction of the court that no fee is to be charged, when the whole amount will be awarded to the claimant.  