With all due deference to the opinion of the majority in this case, I cannot bring myself to agree to the views therein expressed, for the reason that in my opinion it destroys the act of the Legislature under consideration, which is act 386 of 1921, and section 1 thereof is as follows: "That hereafter in all suits in any of the courts of this State for partition of lands, when a judgment is rendered for partition, it shall be lawful for the court rendering such judgment or decree to allow a reasonable fee to the attorney bringing such suit, which attorney's fee shall be taxed as part of the *Page 1017 costs in said cause, and shall be paid pro rata as the other costs are paid according to the respective interests of the parties to said suit in said lands so partitioned."
While the opinion of the majority does not in terms hold this act unconstitutional, yet the effect of the decision is that, if it be construed in accordance with its plain provisions, making it lawful for the court to allow a fee in all suits for partition, where judgment therefor is rendered, whether litigated or not, and taxing the amount thereof against the respective interests pro rata, it is unconstitutional. There is no exception contained in the act making it lawful for the court to allow a fee in such cases, but the opinion of the majority, in my judgment, writes such an exception into the act in contradiction of its plain terms.
It will be noticed that the act provides "that hereafter in all suits * * * for partition of lands when a judgment is rendered for partition, it shall be lawful," etc. It is not provided in the act that it shall be lawful for the court to fix a fee only in uncontested cases, but the language of the act is in all cases it shall be lawful for the court to fix a fee. It will be noticed from the language of the act that it is lawful for the court to grant a fee only in case "judgment is rendered for partition." Therefore, when a partition suit is brought, although the defendants may appear and make defense to the action, yet, under the plain language of the statute, "when a judgment is rendered for partition," it shall be lawful for the court to fix a fee for the attorney for plaintiff.
If, according to the opinion of the majority, it shall be lawful for the court to fix a fee only in uncontested cases, there most probably will hereafter be no uncontested cases.
Our statute is not unlike those in a number of other states which I have examined. In a well considered case in the court of chancery of New Jersey, McMullen v. Doughty, 68 N.J. Eq. 776, 55 A. 115, the court had under consideration a statute making it lawful to include in the *Page 1018 plaintiff's costs a counsel fee to be fixed by the chancellor in partition cases. The court used this language: "Some question has been raised as to the practice in allowing a counsel fee to the solicitor of the complainant out of the whole estate in cases where the defendant is represented by counsel. The decision of the chancellor in the recent case of Kellar v. Kellar (no opinion filed) is cited, where he refused to allow a counsel fee to the complainant's counsel in a partition suit in which the defendant had employed counsel and the case had been litigated. That decision was made before the chancery act of 1902 (P. L. p. 540) No. 91, provided that it should be lawful to include in the complainant's costs a counsel fee to be fixed by the chancellor on final decree. The chancellor, since the passage of the act of 1902, has indicated that the practice should recognize the change made by that statute, and that, in cases in which the complainant is equitably entitled to a decree for costs, the vice chancellor to whom the cause has been referred should hear the parties on the question of the allowance of a counsel fee to the complainant, and, in advising the final decree, should report to the chancellor what is a reasonable fee to be allowed. If either party is dissatisfied with the vice chancellor's allowance, he may on notice to the other party apply to the chancellor to fix a proper sum."
This case was again followed and will be found reported in the 68 N.J. Eq. 776, 55 Atl., page 284, between the same parties, where the constitutionality of the act was brought in question, and the court there said: "The objection is first put on the ground that the legislation in question is obnoxious to constitutional restrictions, either that of the Constitution of the United States forbidding any State to deny to any person in its jurisdiction the equal protection of the laws, or that of our Constitution forbidding any general law to include any provision of a private, special, or local character, or that forbidding the passage of any private, local or special law granting to any individual any exclusive *Page 1019 benefit. His contention is that, by section 91, a benefit is conferred on successful complainants in chancery suits which is not conferred upon successful defendants. He supports his contention by numerous cases in the State and Federal courts in which legislation conferring power to award allowances to parties in actions against certain corporations, such as railroad companies, or in actions against such corporations for certain tortious acts, have been pronounced invalid. But the legislation under consideration is capable of being distinguished from that dealt with in the cases cited. It affects a whole class of litigants, viz., complainants. It does not distinguish among them by reason of the nature of the action or the character or conduct of the defendants. Why defendants who might be successful in equitable suits are not included in the benefit of this legislation cannot be considered, if complainants in such suits form a proper class for such legislation. That they are improperly classified by this act does not seem to me to be so clear that a court of primary jurisdiction would be justified in pronouncing the legislation for their benefit wholly invalid."
In the case of Pate v. Maples, Chancery Court of Appeals of Tenn., reported in 43 S.W. 740, the court held, quoting the first syllabus, as follows: "Under Shannon's Code, 5035, which provides in substance that in partition cases the court may order fees for attorneys for both parties paid out of the common fund, it is not an abuse of discretion to refuse to tax the fund with the attorney's fees of adult defendants whose interests are not assailed by the complainants."
In the case of Padgette v. Smith (Mo.), 103 S.W. 943, the court said: "There is no reversible error in the proceedings of the court subsequent to our mandate. An attorney's fee was allowed, and (as partition was decreed) the statute permits a reasonable fee to be taxed as costs for the attorneys bringing the suit." And the allowance of the fee was approved under section 4422 of the Revised Statutes of Mo., 1899. *Page 1020
I do not think the statute should be so construed as to make it lawful for the court to fix a fee for the plaintiff's attorney in uncontested cases only, but if it could be said that this is the correct interpretation of the statute, I would still say, in this particular case, that, although an answer was filed, no defense was alleged or set up therein, and that therefore it was in fact an uncontested case. This court has not gone into the question of the reasonableness of the fee allowed in this particular case, hence I make no comment thereon. But in about 99 partition cases out of every 100, there is and can be no legitimate defense offered thereto. I am therefore of the opinion that the judgment of the chancery court should be affirmed, and if there were any contest about the reasonableness of the fee allows it should be determined by this court. I am authorized to say that Mr. Justice WOOD and Mr. Justice HUMPHREYS agree to the views herein expressed.