This case was first argued November 18, 1948, and assigned for an opinion. The judge to whom the case was assigned failed to write the opinion, and it was assigned to me in December, 1948. I wrote an opinion which did not prevail. The cause was then heardEn Banc March 10, 1949, and assigned to another judge, who wrote an opinion to which I dissented. That judge then wrote another opinion, to which I dissented. The case was then, for a reason unknown to me, assigned June 18, 1949, to the present writer of the majority opinion.
The majority opinion seems to hold that because the appellant asked the court to fix the fees of Mr. Tonkoff that she cannot now contend that the trial court was in error in entering judgment against her. It must be pointed out that appellant never asked or consented that a judgment be entered against her. All she asked was that she be advised *Page 363 of the amount due her attorney. That was a far cry from consenting to the entry of a judgment.
We should ascertain whether or not the statute which governs here is constitutional, and, if so, its intent and purpose, and then apply it to the facts of the case before us.
Clearly, the statute does not give valid authority to the court to render summary judgment such as entered in the present action. In order to express my views, I feel it necessary to set out Rem. Rev. Stat., §§ 133, 134, 136 and 138 [P.P.C. §§ 273-55, -57, -61, -65], all contained in the Laws of 1863, pp. 405-406:
"§ 133. Change of attorneys. The attorney in an action or special proceeding may be changed at any time before judgment or final determination as follows: — . . . .
"(2) Upon the order of the court, or a judge thereof, on the application of the client, or for other sufficient cause; but no such change can be made until the charges of such attorney have been paid by the party asking such change to be made."
"§ 134. Notice of change and substitution. When an attorney is changed, as provided in the last section, written notice of the change, and of the substitution of a new attorney, or of the appearance of the party in person, must be given to the adverse party; until then, he shall be bound to recognize the former attorney."
"§ 136. Lien of attorneys. An attorney has a lien for his compensation, whether specially agreed upon or implied, as hereinafter provided, —
"1. Upon the papers of his client, which have come into his possession in the course of his professional employment;
"2. Upon money in his hands belonging to his client;
"3. Upon money in the hands of the adverse party in an action or proceeding, in which the attorney was employed, from the time of giving notice of the lien to that party;
"4. Upon a judgment to the extent of the value of any services performed by him in the action, or if the services were rendered under a special agreement, for the sum due under such agreement, from the time of filing notice of such lien or claim with the clerk of the court in which such judgment is entered, which notice must be filed with the papers in the action in which such judgment was rendered, and an entry made in the execution docket, showing name of claimant, amount claimed, and date of filing notice." *Page 364
"§ 138. Proceedings where lien exists. If, however, the attorney claim a lien upon the money or papers, under the provisions of this chapter, the court or judge may, —
"1. Impose as a condition of making the order that the client give security, in the form and amount to be directed, to satisfy the lien, when determined in an action;
"2. Summarily to inquire into the facts on which the claim of a lien is founded, and determine the same; or
"3. To refer it, and upon the report determine the same as in other cases."
In any event, the statute is not sufficient to authorize the court to do other than foreclose a lien upon the papers of an attorney's client which have come into his possession in the course of his employment, money in his hands belonging to his client, money in the hands of the adverse party in an action or proceeding in which the attorney was employed, or upon a judgment to the extent of any services performed by him in the action. I reiterate, the act does not provide for the entry of a summary judgment such as rendered in the present action.
Art. II, § 19 of our constitution provides:
"BILL TO CONTAIN ONE SUBJECT. — No bill shall embrace more than one subject, and that shall be expressed in the title."
"CONSTITUTION MANDATORY. — The provisions of this constitution are mandatory, unless by express words they are declared to be otherwise." Art. I, § 29, Washington Constitution.
The title of the act (Laws of 1863, p. 403), in so far as it is applicable here, reads:
"Section 9. Attorney, how changed. " 10. Notice of change. " 11. Notice to appoint attorneys. " 12. Lien of attorneys. " 13. Proceedings to compel delivery of papers. " 14. Proceedings when attorney claims lien."
Nowhere in the title does the legislature indicate that summary judgment may be entered in what is clearly an action at law for the recovery of attorney's fees. All the statute permits is "summarily to inquire into the facts on *Page 365 which the claim of a lien is founded, and determine the same."
The restricted title of the act is not sufficient to authorize the procedure followed in this case. That is, it does not mention procedure such as was had here. Two recent pronouncements of this court applying Art. II, § 19 of our state constitution bear out my contention.
The first is State ex rel. Washington Toll Bridge Authority v.Yelle, 32 Wash. 2d 13, 200 P.2d 467. In that case it was decided that the restricted title to chapter 173, p. 654, Laws of 1937 (Rem. Rev. Stat., Vol. 7A, § 6524-1 [P.P.C. § 632-1] etseq.), reading as follows:
"An Act relating to toll bridges; creating the Washington Toll Bridge Authority and providing for certain officers as members thereof; relating to the powers and duties of the Washington Toll Bridge Authority and certain officers; providing for the investigation, examination, survey, recognizance [reconnaissance], construction and operation of toll bridges; providing for the examination, survey, reconnaissance, construction and operation of toll tunnels; providing for the acquisition of property for toll tunnels, their approaches, and establishment; providing for the issuance and sale of bonds and the conditions, terms and redemption thereof; providing for the deposit and use of certain funds and revenues; defining terms; repealing acts and parts of acts in conflict; providing for constitutionality; and declaring an emergency",
was insufficient to allow the toll bridge authority to purchase, build, or operate ferries. In passing, it was stated:
"We are further of the opinion that the term `ferry connections,' as used in the title of the 1945 act, is not sufficient to put a reasonably intelligent person on notice that the powers of the Washington toll bridge authority have purportedly become so enlarged, beyond the limited powers which it formerly possessed, under the 1937 act, that it can now acquire and operate a general water transportation system of the magnitude outlined in its recent resolution."
The second case is that of Gilman v. State Tax Commission,32 Wash. 2d 480, 202 P.2d 443. In passing upon the issues in that case, this court held that the title to Initiative No. 169, reading as follows: *Page 366
"An Act providing for the payment of additional compensation to veterans of World War II; establishing administrative procedures; authorizing the issuance and sale of state bonds and allocating the revenues thereof to a compensation fund; providing for the retirement of the bonds through the proceeds of a tobacco tax; making an appropriation and providing penalties",
was not sufficiently broad to make the bonds provided for in the act a general obligation of the state of Washington.
In view of these holdings, how can it be said that either the title or the body of the act of 1863 (Rem. Rev. Stat., §§ 133, 134, 136, and 138) are sufficient to authorize the trial court to enter a summary judgment for attorney's fees.
The act, as construed by the majority, violates our constitutional provision, Art. I, § 21, which states that "the right of trial by jury shall remain inviolate . . ."
The majority opinion gives to attorneys rights and privileges accorded to no other body of our people, whether they be farmers, laborers, merchants, bankers, manufacturers, doctors, or clergymen. *Page 367