exist, it had been waived. The court, however, goes directly to the real merits of the situation in a very able investigation as to whether such exemptions do exist, and said: "But the exemption does not exist. The exemption would incalculably cripple the public service, the liability would equally promote it; no consideration of justice or policy favors, every consideration of justice and policy forbids, the exemption; the liability enlarges, the exemption narrows, sovereign action; the liability, not the exemption, is a privilege, and therefore an attribute of sovereignty. The learned counsel for the defense in error has submitted to us no adjudication to the contrary which we should follow as a guide or respect as advisory; and we are convinced that such an adjudication does not exist. On the other hand, all the analogies of the Commercial and Maritime Law, and the Federal decisions under that law, are directly the other way. In 9 Wheat. 409, 6 L. ed. 122, The St. Jago de Cuba, it was decided in 1824 that seamen and materialmen who served and supplied the ship after her seizure as a slaver had respectively liens upon her against the United States for wages and supplies, and that she stood pledged to them accordingly." This is a very instructive case, and we quote further from it: "The counsel for the government claims that the district court could render a judgment for but not against it; we have listened with attention and respect to his argument, advanced in favor of this proposition, and candor requires us to admit that he has presented it as well as it could be presented; but candor also compels us to say that the proposition is throughout and throughout a fallacy. To what consequence does the proposition lead? The United States may invoke the jurisdiction of the court; it may accept that which does and discard that which does not accord with its supposed interests; it may dictate the exer cise of the administration of the law; it is not bound by the rules of equal justice; it is a privileged suitor; the district court having rendered a judgment against it, this court must reverse; having rendered one for it, this court can only affirm; it can sit in appeal, must mechanically obey, cannot revise; nay, further, having brought the suit, and effected a caption, its aim is accomplished; it needs no judgment, for but one judgment can be rendered in the case, and that in its favor; if, having made the caption, it neglects to prosecute the writ, a motion to dismiss for want of prosecution will be unavailing; still further, the demand in the writ for judgment is meaningless, the undertaking of the sureties without force, the writ is superfluous, and the suit is farcical, because it is intended to effectuate under the forms of law what can as well be accomplished by the violent hand, under an irresponsible will. Does not the proposition result in a pure reductio ad absurdum?" It was there held that a suit cannot be instituted against the property of the government, if the bringing or the institution of the suit requires the issuance of process against the government, or the disturbance of its possession of its property; that the exemption is personal, and the will to retain is a will to waive it in the exercise of sovereign interests. When it does waive the privilege invoking the jurisdiction of the court, it submits to that jurisdiction, presenting a claim for adjudication. It asks that the claim be adjudicated on its merits, and allowed or rejected accordingly. In closing the court said: "Were we to send the case to the district court, we should direct it to embrace in its judgment the attorneys' fees, fixed at a reasonable amount, upon the principle above stated." The railroad company, however, waived the fees, and judgment was entered in the supreme court for the transportation charges and (29 Idaho, 670, 161 Pac. 1026.) costs. See also United States v. Boyd (C. C.) 79 Fed. 858. It must be borne in mind that the fund sought to be charged with the attorney's fee and expenses in this case has never been in the possession of the state, and, in my view of the matter, under the facts and law of this case, there is ample authority for holding that the appellant is entitled to the payment of his legal expenses and attorneys' fees out of the fund now in the hands of the court. It has been contended by counsel for the state that this is a claim against the state, and that the Constitution and statutes provide an exclusive procedure for obtaining payment. There is nothing in this contention. If the appellant were seeking to have a claim presented to the state board of examiners, and to have it paid out of the treasury, then there might be something in that contention; but such is not the case. Appellant is seeking to subject to the payment of his fees a fund that has never been in the state treasury, and the state's possession of the fund could not be disturbed by such payment. In this case no process has ever been issued against the state of Idaho or any of its officers, no possession of the state has ever been or can be disturbed. No personal judgment can be given against the state upon which execution can be levied upon any state property. This is a proceeding in rem against the property, not in possession of the state, but in the hands of the court, and any decree that may be rendered will be satisfied out of the property now in the hands of the court. The state was not brought into court by any process. It came in voluntarily, by itself, as plaintiff, seeking the assistance of the court for the recovery of a judgment against the surety company. By so doing it submitted to the jurisdiction of the court, and cannot in one breath ask the court for its assistance in recovering a judgment against a surety company, and in the next breath 2 A.L.R.-18. deny to the court the right to protect its officers in that proceeding, and to administer justice fairly and honestly in that case. The state has accepted the services of appellant. The record shows that he served the state faithfully and well, and no sufficient reason is shown why the state should attempt to evade its liability to pay for his services. Can any good reason be offered why the state in this matter should be unaffected by considerations of morality and right, which ordinarily bind the conscience? The observance of honesty and fair-dealing on the part of the state becomes of higher importance of higher importance to the state than the money involved in this case. It was said in Woodruff v. Trapnall, 10 How. 207, 13 L. ed. 390, that "we naturally look to the action of a sovereign state to be characterized by a more scrupulous regard to justice, and a higher morality, than belong to the ordinary transactions of individuals." Is there any justice or morality in the state's attempting to avoid the payment of just compensation for services that it contracted for and received, and which services were of great value to the state? It seems to me that, under the pleadings in this case, the honor and good faith of the state is put to the test, and no hair-splitting statutory constructions should be made by the state to avoid the payment of an obligation, where it has received the services. Section 10, art. 5, and § 18, art. 4. of the state Constitution, provides a process by which a claimant, seeking to enforce a claim against the state, may overcome two obstacles which, in the absence of those provisions, would make it impossible for him to obtain any remedy whatever. The first is to divert the possession of its personal property or money; the second, to bring the sovereign within the jurisdiction of the court. If neither of these obstacles is presented to a claimant seeking to enforce payment against the state, how can it be reasonably said that he inust nevertheless pursue methods or a procedure that has no application whatever? The board of examiners may hear claims against the state in order that they may be paid out of the money in the possession of the state, or in its treasury. They cannot order such claims paid out of money that never was in the possession of the state treasury, and, unless the claim presented to such board is to be paid out of the treasury, the board has no jurisdiction whatever, either under the Constitution or the law, to pass upon it. The board has jurisdiction of the money in the possession of the state in so far as the payment of claims against the state out of such money is concerned, but it has no jurisdiction whatever to pass upon any claim which has to be paid out of funds which are within the exclusive jurisdiction and control of the court, and never has been in the state treasury. The main question before the court is as to whether the attorneys' fees and costs of the litigation in this case may be paid out of the judgment obtained, and it is clear to me that they ought to be so paid, and that the case should be remanded to the district court to determine a reasonable fee to be paid to the appellant. Petition for rehearing denied, January 4, 1917. ANNOTATION. Lien of attorney on public fund or property. This note does not include cases of the lien of an attorney for a private client upon claims against the state or other public body. The authorities support the decision in the reported case (State v. NaTIONAL SURETY Co. ante, 251), that, in the absence of constitutional or legislative authority, an attorney can acquire no lien on a public fund or property. In Compton v. State (1882) 38 Ark. 601, it was held that, without legislative authority, there could be no attorney's lien on moneys recovered for the state, and that, without such authority, the governor had no power to make a contract that would give such a lien, and that the court could not stop the money in transit to the treasury. The governor's contract in fact did not specify the mode or measure of compensation. The court stated that by the early common law an attorney had no general lien upon the judgment recovered, and that the "charging lien" upon the judgment was carved out by the English courts for the protection of attorneys and solicitors, lest a party run away with the fruits of the litigation. That as to the Statute of Liens, the general rule was that the state was not bound by a statute unless expressly named. But whether the act applied to the state or not, the governor had no power to employ counsel in the absence of statute. An attorney of a taxpayer, who institutes a suit on behalf of all the taxpayers of the county and recovers for the county treasury money illegally appropriated cannot assert a lien thereon for his services, and recover a judgment against the county. Marion Courcy v. Rives (1909) 133 Ky. 477, 118 S. W. 309. An attorney's lien for services rendered his client, a county, cannot be successfully asserted against money appropriated to such client by an act of the legislature while such money is in the custody or under the control of the state treasurer. State ex rel. Sayre v. Moore (1894) 40 Neb. 854, 25 L.R.A. 774, 59 N. W. 755. Hendrick v. Posey (1898) 104 Ky. 8, 45 S. W. 525, 46 S. W. 702, is sufficiently dealt with in the opinion of the court in the reported case (STATE v. NATIONAL SURETY Co. ante, 251). The cases where a lien was allowed seem to show little, if anything, in opposition to the general rule. Re Paschal (Texas v. White) (1871) 10 Wall. (U. S.) 483, 19 L. ed. 992, is sufficiently referred to in the dissenting opinion in STATE V. NATIONAL SURETY CO., with the important exception that the larger part of the attorney's claim, being for services in the suit in which he had collected the moneys in question, was under a contract made with him by the governor, whose power so to contract under a special statute was undisputed, and which stated: "Your compensation will be dependent upon the action of a future legislature, unless a recovery is had in the suit, in which event I shall feel authorized to let you retain it out of the amount received." In Washington County v. Clapp (1901) 83 Minn. 512, 86 N. W. 775, quoted from in the dissenting opinion in STATE V. NATIONAL SURETY Co., it was held that where a county had employed other counsel to assist the county attorney in the collection of delinquent personal taxes, and such counsel had made a collection, they had an equitable lien or set-off as against the fund collected for the reasonable value of their services, and that the funds so collected were, while in their hands, "county funds," although the net funds would ultimately be divided among the state, a city, the county, and various school districts, the statute providing that the county might employ the services of any attorney at law to assist the county attorney, and "pay for such services out of the county funds," the reasonable value of the services being stipulated in the suit concerning the lien. In State v. Ampt (1879) 6 Ohio Dec. Reprint, 699, quoted from in the dissenting opinion in the reported case (STATE V. NATIONAL SURETY Co. ante, 251), the state under a statute had employed the defendant to collect from a county the state's share of certain taxes misappropriated by the county, and had sued him for money retained, less a reasonable sum to be deducted therefrom for compensation as attorney, admitting his right to retain the money and assert a lien thereon. B. B. B. 1. A common carrier is liable to the consignor for delivering goods to one who purchased the business of the consignee without the knowledge of the consignor or the carrier, although the sale of the goods was made to the purchaser of the business under the belief that he was acting as agent for the consignee, and such purchaser had frequently received goods from the carrier for the consignee while he was in the latter's employ. [See note on this question beginning on page 279.] Same condoning wrongful delivery. 2. That a stranger pays part of the bill for goods charged to the account of the supposed buyer does not show that the credit was transferred to such stranger, so as to condone the wrongful delivery of the goods by the carrier to him. Same delivery at street address. 3. Consigning goods to a supposed purchaser at a given street address does not justify the carrier's delivery of them at the station to a stranger who had purchased the business of the consignee, which he was carrying on at the address named. Same signee. culpable conduct of con 4. A consignor is not estopped to hold the carrier liable for wrongful delivery by the culpable conduct of the consignee in placing the one to whom delivery was made in charge of the business without notifying the carrier of the change. EXCEPTIONS by plaintiff to rulings of the City Court of Burlington, made during the trial of an action brought to recover damages for failure of defendant to deliver goods consigned by plaintiff to another, which resulted in a judgment for defendant. Reversed. v. Thomas, 78 Vt. 279, 62 Atl. 719; Burton v. Barlow, 55 Vt. 434. Miles, J., delivered the opinion of the court: The facts are stated in the opinion of the court. Mr. Max L. Powell, for plaintiff: Where a common carrier receives goods to transport and deliver at a certain point to a person named, and immediately upon their arrival delivers them to another person, the carrier is liable as such, and not as a warehouseman. Winslow v. Vermont & M. R. Co. 42 Vt. 700, 1 Am. Rep. 365. The responsibility of the carrier, as such, continues after the goods have reached their destination until the party entitled to them has had a reasonable time to call for, examine, and take them. Blumenthal v. Brainerd, 38 Vt. 402, 91 Am. Dec. 349. Messrs. Rufus E. Brown and Theodore E. Hopkins, for defendant: The carrier is not bound to deliver to the consignee personally, nor to give notice to him of the arrival of the goods. Blumenthal v. Brainerd, 38 Vt. 402, 91 Am. Dec. 349. Defendant was justified in delivering the goods to M. J. Solomon, as the apparently authorized agent of the consignee. Tier v. Lampson, 35 Vt. 179, 82 Am. Dec. 634; Bradish v. Belknap, 41 Vt. 172; 4 R. C. L. Carriers, § 283; Farmers' & M. Bank v. Champlain Transp. Co. 18 Vt. 131, 23 Vt. 186, 56 Am. Dec. 68; Lakeshore & M. S. R. Co. v. Luce, 11 Ohio C. C. 543, 5 Ohio Ç. D. 225; Wilson v. Adams Exp. Co. 27 Mo. App. 360; Dunbar v. Boston & P. R. Corp. 110 Mass. 26, 14 Am. Rep. 576; Winslow v. Vermont & M. R. Co. 42 Vt. 700, 1 Am. Rep. 365; Mattson This is an action against the defendant for failure to deliver goods consigned by the plaintiff to B. J. Fayette. The case was tried by the municipal court of the city of Burlington, Vermont, and from the facts found by that court it appears that the plaintiff, on April 26, 1912, shipped from New York, via the Hudson Navigation Company, two cases of dry goods, consigned to B. J. Fayette, 77 North street, Burlington, Vermont, which in due course of transportation were received by the defendant and transported to its dock in Burlington, for delivery to the consignee. While doing business at 77 North street, Fayette conducted a mercantile business, having a telephone in his store for general use, and employing several assistants in his business, among whom was M. J. Solomon, a brother-in-law of Fayette. During the time he was in trade, all freight consigned to him, coming over the defendant's transportation line, was taken from defendant's dock warehouse and hauled by Fayette's own teams, and by Fayette's direction notice was to be given to him by telephone when freight was received at such dock warehouse, and Fayette would send his teams and remove such freight. Fayette sometimes went after the goods himself, and at other times he would send some of his employees. Fayette's instructions to the defendant were to deliver such freight to any one of his employees |