dissenting: It appears from tbe record in tbis case tbat at no time has there been any fund in court. At no time has one cent of tbe $1,000 which tbe plaintiffs ask tbe court to order tbe guardian to pay them been in tbe control of any court or in tbe custody of any of its agents. ’ Tbis appears by tbe records of tbe proceeding. Tbe very motion by which tbe plaintiffs ask tbat tbe court appropriate $1,000 of tbe ward’s money for tbe payment of tbeir fees specifies tbat it is in tbe custody of tbe guardian (bis mother), and asks tbat she “be ordered to pay the same into court.” Such order would not be necessary if tbe fund were already in court.
Tbe record shows tbat tbe defendant guardian, as administratrix of her deceased husband, received $10,500 on 10, November, 1915, by a compromise in an action against tbe Seaboard Air Line Bailroad Company for tbe wrongful death of her husband. Not one cent of that money has ever been a “fund in court” or subject to tbe control of any court. On 24 May, 1915, she applied for and was appointed guardian of her son, her only child, who resides with her, and gave bond 1 December, 1916, as directed, in tbe sum of $13,000 for tbe custody of tbe $6,500 belonging*to her son. That fund was invested in real estate and has been in her custody and control as guardian from tbat hour to tbis. Of tbe $10,500 collected as above, she paid out $750 counsel fees — i. e.,. $250 for collecting her one-third and $500 for collecting her son’s two-thirds, leaving in her hands $6,500 as guardian.
• On 2 July, 1916, more than a year after her appointment as guardian, tbe clerk, by a citation ex mero motu, notified her, as administratrix,, *341to render an account of tbis and tbe other funds in ber bands, and in passing upon sucb account directed ber to bold tbe $6,500 as guardian for ber son, being two-tbirds of tbe net fund after payment of counsel fees. In ber answer, under tbe advice of ber counsel, sbe pleaded, as appears in tbe record, tbat sbe did not claim to bold tbe money of ber son as ber own, but tbat sbe beld it as trustee for bim under tbe Federal Liability Act, and not as guardian, and appealed f-rom tbe order of tbe clerk, but tbe order was affirmed by tbe judge and by tbis Court and an attempted writ of error by ber counsel to tbe United States Supreme Court was dismissed summarily for want of jurisdiction and without bearing any argument from these plaintiffs. For tbis tbe estate of tbe boy is now asked to be taxed by tbe court in tbe sum of $1,000 for counsel fees; and by as much right, there may be tbe same motion to tax bis estate $1,000 for counsel fees for tbe guardian in resisting tbe motion. Tbe next friend was not appointed till 16 September, 1916, after tbe matter bad gotten into tbe Superior Court.
Tbis proceeding to assess and recover lawyers’ fees against tbe guardian, who has ber ward’s estates in band by a mere motion, is entirely without precedent in tbis State, and there is no statute to authorize tbis. Tbe motion seeks to recover out of tbe guardian legal fees for services rendered tbe ward when there is no fund in court, nor has been. It is in effect an action, though begun by a motion and not by a summons, alleging services rendered the ward when there has been no attempt to agree with the guardian as to tbe value of tbe services rendered, and without submitting it, as all questions as to tbe value of services rendered must be submitted, to a jury.
Tbe clerk can audit ber account, but could not, as here attempted, adjudge any indebtedness and order tbe guardian to pay it. Nor can tbe Superior Court do so except by judgment rendered in an action against her- regularly begun by summons; nor has tbis Court jurisdiction, for no fund is in tbis Court; nor have we jurisdiction by appeal of a matter of which tbe court below bad no jurisdiction. We are “No judges of sucb matters.” Acts xviii, 15. Tbe idea of tbe plaintiffs — or petitioners, whichever they may be, for tbe proceeding is anomalous — ■ seems to be tbat tbe clerk, or their brother lawyers on tbe bench, would be better informed as to tbe value of their services and would, therefore, be more liberal in fixing tbe amount of their compensation than a jury. But if sucb practice is to be begun now, it will be created by “judicial legislation,” for there is no statute and no precedent for tbe court to fix tbe value of a lawyer’s services and ordering a guardian or administrator to “pay tbe money into court” any more than for a doctor’s services or a grocer’s bill. If such practice is now to be inaugurated, it is apprehended tbat it will become a most serious embarrassment to the-judges *342to be called upon to fix tbe fees of counsel in every case where tbe party for whom tbe services were rendered happens to be a minor who has a guardian, or is an administrator or executor, with whom counsel fail to agree as to tbe value of tbe services rendered. If tbe fees of counsel can be adjusted by this short-band process of application to tbe court in this case it can be done in all such cases.
In this instance, tbe plaintiffs, or petitioners (whichever they should be styled) ask tbe approval of a fee of $1,000 and its payment by tbe guardian for representing tbe interest of tbe ward. She is tbe mother as well as tbe guardian of her son’s estate and is seeking to protect that fund in her bands from what she deems an excessive charge. If allowed, there will be equal ground for tbe counsel of the guardian to apply for $1,000 to be allowed him for tbe same service, for tbe court cannot adjudge that there was not equal ability and service on each side.' If tbe guardian shall be ordered to pay $1,000 fee out of tbe ward’s fund to plaintiffs for seeking to have tbe $10,500 fund (received for bis father’s death) apportioned in a certain way, tbe counsel on tbe other side is equally entitled to $1,000 for aiding tbe guardian to resist tbe apportionment. Then there will come, with as much reason, an application to allow fees to counsel on either side for making and opposing this motion to allow tbe $1,000 fees to each side.
What has been said so far is in reply to tbe claim made that there has been a fund in court, when tbe record shows that at no time has there been any fund in tbe custody of tbe court. But taking it to be true that there was such fund in court, this motion is contrary to all tbe precedents in this Court, which are that tbe Court cannot fix tbe fees of counsel if there is objection. Tbe duty of tbe Court is to conserve any fund ip. its bands, and not to divide it out among counsel whose views in regard to tbe value of their services may, as in this case, be in excess of what tbe guardian or trustee may think just. In such cases counsel must come to an agreement with tbe guardian, subject, of course, to tbe power of tbe clerk to cut down tbe amount, though agreed on, in passing upon tbe account of the guardian or administrator.
Tbe guardian alleges: (1) That tbe court bad no jurisdiction because tbe fund is not in tbe bands of tbe court. (2) Thát tbe counsel should adjust tbe amount of tbe fee by agreement with tbe guardian, subject to exception and review by tbe court in passing upon her accounts as guardian. (3) And that if tbe guardian does not allow counsel what they deem a sufficient sum, their remedy is by action on a quantum meruit, in which action tbe amount will be settled as in all other disputes between client and counsel when no sum has been agreed upon, by tbe verdict of a jury. (4) She further urges that tbe amount allowed, *343botb by tbe clerk, and still more by tbe judge, is excessive for services rendered in merely having tbe ward’s share in tbe fund adjudged.
According to tbe precedents in our Courts, tbe judgment of tbe court was without jurisdiction. Tbe fund is not in tbe bands of tbe court, and, therefore, on that ground, of itself, tbe proceeding should be dismissed. But even bad there been a fund in court, tbe judge bad no power to fix tbe fees of counsel when tbe guardian charged by bis oath and bond with tbe custody and safe-keeping of tbe ward’s estate objects to tbe amount.
In Mordecai v. Devereux, 74 N. C., 673, this Court said: “Tbe question is decided. Patterson v. Miller, 72 N. C., 516. This Court has never interfered between attorney and client in making allowances for professional services, and we are not inclined at this late day to assume tbe power to do so. We make allowances to tbe clerk for stating an account, or to a commissioner for making a sale, on tbe ground that tbe work is done by order of tbe Court. We have never supposed that we could be called on to settle fees between client and attorney, although there be a fund in tbe keeping of tbe Court.”
In that case a large fund was in court, and tbe trustees and commissioner, one of whom was this writer, applied to tbe court to fix tbe fees of counsel, there being a very large number of creditors whom it was impossible to consult, many of them being minors and married women, and some of them might be dissatisfied with tbe allowance to counsel.
In tbe present ease, tbe guardian having an adversary interest, it was proper and indeed according to tbe practice of tbe Courts and necessary that tbe ward should be represented by a next friend, who bad no authority to make a special contract as to tbe amount of tbe fee. But none tbe less, tbe services were rendered for tbe ward’s estate and tbe guardian should allow a reasonable and just fee for such services. This would be a proper charge against tbe estate of tbe ward in her bands, and she has no pecuniary interest herself against- tbe allowance of a proper fee. If she refuses reasonable compensation, counsel must proceed by action against tbe guardian as custodian of tbe ward’s estate.
In Gay v. Davis, 107 N. C., 269, it was held that tbe Court “Has no authority to determine what compensation counsel shall demand or ought to have.” To same effect, R. R. v. Goodwin, 110 N. C., 175.
In Loven v. Parsons, 127 N. C., 302, tbe Court says: “Certainly all just and proper disbursements for counsel fees by tbe collector can be proved against tbe estate and recovered against tbe administrator if be refuses to pay; but this must be done in tbe proper legal method and forum, tbe administrator having bis day in court and an opportunity to contest tbe necessity or validity or tbe amount of such disbursements.”
It is true that when a trustee finds it necessary to employ counsel in *344the management of an estate under the control of the court, his reasonable disbursements for counsel are allowed out of the trust fund upon the settlement of his account, but this is to be done just in the same way that reasonable counsel fees paid by a guardian, administrator or executor are allowed in the settlement of the estate. Whitford v. Foy, 65 N. C., 276; Young v. Kennedy, 15 N. C., 267. In such cases, as was said by the Court in Mordecai v. Devereux, supra, the trustee must make the allowance, subject to have the amount surcharged in his settlement if, on objection, it is found to be excessive. But this does not authorize a court to make such allowance when it is opposed by the guardian or personal representative. The court cannot create a debt against the estate.-
In Lindsey v. Darden, 124 N. C., 308, the Court says: “If an administrator employ counsel to assist him in his administration, the contract is personal and is not a debt against the intestate’s estate. The administrator must pay it, and if the disbursement is proper it will be allowed him in the settlement of his account with his estate.”
The court allows fees to reférees, to surveyors, to experts, to commissioners as a part of the costs, both because such services are rendered by them as agents of the court and there are statutes expressly authorizing it; but counsel are the agents and representatives of the parties and must be paid if, as in this case, there is (and could be) no special contract upon a quantum, meruit to be agreed upon with the guardian or ascertained as in all other cases by an. action for services rendered. When services have been rendered an executor, administrator, guardian, or trustee, and he pays for the same, he is allowed for the disbursement upon the settlement of his account if not found to be excessive, but the court cannot intervene and by a short-hand process fix the fees for legal services and require a personal representative or guardian to pay counsel, upon motion, any more than it could fix the fees of a doctor or a mechanic, or for any other service to the estate, and direct payment.
In some jurisdictions, where the statute, unlike ours, allows the courts to fix the fees for counsel in certain specified eases without the intervention of a jury, the resulting scandal and charges of favoritism on the part of judges to counsel alleged to be favorites have not been edifying. In this State our statutes have left no opening for such charges. It would be a most unenviable duty if the judges were charged with fixing the amount of fees for their brethren of the bar in cases of difference between them and their clients, and if they can do so between a guardian and counsel they have the same power and duty between counsel and any other client.
In England, where the legal profession is divided into barristers who address the juries and courts and attorneys who prepare the briefs of *345facts and of tbe law, draw and file tbe pleadings, and perform similar services, tbe fees of attorneys are prescribed for every act, as are those of our clerks and -sheriffs, and taxed in tbe costs. On tbe other band, tbe barrister’s compensation is considered an honorarium, and is usually paid in advance, and when it is not be cannot recover by action for bis services. Tbe attorney’s fees thus taxed as a part of tbe costs subjected tbe losing party to imprisonment for nonpayment; and if not then paid, tbe winning party was liable to imprisonment for nonpayment of bis ■own costs. Tbe result was tbe encouragement of much litigation “on spec” (as it was called), and sometimes tbe imprisonment of clients on both sides, as graphically depicted by Charles Dickens in bis memorable •description of tbe Fleet Prison and tbe imprisonment of both suitors in ’“Pickwick Papers.”
In North Carolina, tbe fees of attorneys were taxed as part of tbe costs, ranging from $2 to $20 in each case — i. e., $20 in a suit in equity, $10 in tbe Supreme Court, $10 in tbe Superior Court where tbe title of land came in question, and in all other cases in that court $4, and tbe county court $2. Revised Code (1854), cb. 202, sec. 16; Revised Statutes (1836), cb. 105, see. 16; Modified Batt. Rev. (1815), cb. 105, sec. 29. And, of course, suitors could be imprisoned for nonpayment thereof till 1868, when imprisonment for debt was abolished. On tbe other band, lawyers were subjected to payment of all costs when an action was dismissed for failure to file the complaint in time, and to double damages for all injuries caused by fraudulent practices. Rev. Code, eh. 9, secs. 5 and 6; Batt. Rev., cb. 7, secs. 5 and 6. Lawyers’ fees had no other recognition in this State or priority over any other debt beyond this, and this was expressly repealed by cb. 41, Laws 1879, which provided: “Clerks of the Supreme and Superior courts shall not include or charge in any bill of costs any attorney’s fees in any civil suit hereafter determined in any court of tbe State, and all laws or parts of laws -coming in conflict and within tbe meaning and purview of this act be and they are hereby repealed.” Clifton v. Wynne, 81 N. C., 160. Since then tbe fees of counsel are on tbe same basis as any other indebtedness, ‘ without lien and without official recognition beyond tbe fact that when rendered to a personal representative, guardian or trustee, tbe amount of such.fee is subject to review by tbe clerk of tbe Superior Court, or tbe court having charge of the fund, in passing upon tbe accounts of tbe personal representative, guardian or trustee, especially if objection is made by tbe parties in interest. There is no lien or other preference given a lawyer’s fee even when the fee is charged for collection of that very fund, in tbe absence of an agreement by tbe client for payment out of tbe fund. Bank v. O’Brien, 175 N. C., 338.
In tbe action to recover tbe $10,500 for tbe wrongful death, tbe ad*346ministrator paid counsel $750, of wbicb $500 bas already been deducted from tbe two-tbirds of tbe fund ($7,000), wbicb was tbe child’s two-thirds, leaving it $6,500. It is now sought to take another $1,000 out of this child’s $6,500, wbicb is held by tbe guardian under an oath and with tbe security of a bond for its safe-keeping, without its being allowed by tbe guardian and without tbe constitutional guarantee, both by tbe State and Federal Constitutions, of trial by jury to fix tbe value of the services for wbicb the debt is claimed. Besides, fees must then be allowed counsel on tbe other side; and tbe ward’s estate must be taxed by tbe same right for counsel fees on this motion.
This little child, 11 years old, could make no contract for lawyer’s services any more than it could with a doctor for saving its life and nursing it back to health, or for necessary clothing from a merchant, nor for a board bill, nor for groceries to live upon. In such cases, if it bas property, a guardian is appointed for its safe-keeping and tbe bill should be presented to that guardian for all services for tbe benefit of tbe ward,, and is paid, subject to tbe approval of tbe clerk in passing upon tbe guardian’s accounts. If not allowed by tbe guardian, tbe amount must be settled in an action between tbe claimant and tbe guardian.
A lawyer is not in a privileged class that exempts him from tbe requirement that like tbe doctor, or merchant, or grocer, be must prove tbe value of bis claim to tbe satisfaction of a jury. Tbe fact that tbe judge is a lawyer gives tbe claimant for legal services no short-band process to have tbe value of bis services assessed in' any other way than is required for tbe doctor, tbe grocer, or any other creditor. Doubtless, in practice, jüdges may have sometimes fixed such fees, but not when,, as here, tbe guardian bas demanded a jury trial.
Tbe sole, solitary case in our Reports wbicb is relied on as a precedent that tbe courts in this State ba-ve allowed counsel fees is Outland v. Outland, 118 N. C., 131, where the land of an idiot was sold and, be having no guardian, tbe money was paid into court. Tbe court allowed $200 lawyers’ fees, and though tbe idiot could not object, this Court cut it down to $100 and cited as authority for allowing even that amount Moore v. Shields, 69 N. C., 50, wbicb held that a guardian could be allowed by tbe clerk, in approving bis accounts, a reasonable fee ($50) paid by him to bis counsel for defending an action brought by tbe ward against him for a final settlement of bis accounts.
In this case there bas been no fund in court, and tbe ward bas a guardian who is seeking to protect bis estate from what she deems an excessive charge for legal services. She is tbe child’s mother as well as guardian, and is asking that tbe value of tbe legal services rendered shall be submitted to a jury, and not to a judge. It does not matter whether tbe child bad any guardian at tbe time services were rendered, or that *347they were rendered at tbe request of a former guardian, or, as in tbis. ease, of a next friend, for the indebtedness is against the estate and to-be allowed or disallowed by the guardian, who has the ward’s property in hand at the time, the claim is presented for payment.
The courts, since it was first held in Marbury v. Madison in 1803 that they could do so, have set aside acts of Congress and of the legislatures as unconstitutional, though the members of those bodies have been men of ability and under the same duty to observe the Constitution as the courts. The courts have also held unconstitutional acts of the Executive Department. They have not only held that the other two departments of the government have often acted in violation of the' Constitution, but they have held that the courts themselves have acted unconstitutionally, not only when a higher Court reverses a lower upon a constitutional question, but by overruling their own decisions. For instance, the United States Supreme Court for a long series of years-held that a corporation was not a- citizen entitled to the removal of a cause on the ground of citizenship, and then reversed that ruling and held that it was. The same high Court held that the Legal Tender Act was constitutional, and then that it was not. It held, for a hundred-years, that the income tax was constitutional, and then that it was not, which last ruling was reversed by the people (after twenty years delay by the plutocracy) by prohibiting the Court from following the latter decision, which action alone of the people has made it possible for this country to carry on the present great war. Then the Court held in the Lockner case- that it was unconstitutional to restrict the hours of labor working in 120 degrees temperature to ten hours, and they have reversed .this by holding valid the Adamson Law, which limits to eight hours the labor of railroad employees; and there are-many other cases. In our own State, in 1833, it was held by a very able Court, in Hoke v. Henderson, 15 N. C., 1, that an incumbent had a right of property in his office, and that though it had been created by the Legislature, that body could not change the term of an office .from life tenure to a term of years, and from being appointive to be elective-by the people. That opinion, though approved by the Court in more than sixty cases, was at last overruled and set aside as unconstitutional in Mial v. Ellington, 134 N. C., 131. In each of these, and in other-cases, the Court in the later opinions necessarily held (when the first decision ruled an act was unconstitutional) that the prior decision was unconstitutional. Therefore, with the most respectful regard for the-opinion of my brethren, but in compliance with my duty as I see it, I believe that the “judicial legislation” by which the Court now for the first time, and without statute and contrary to the precedents above-cited, has conferred the power on the clerk, or the Superior Court judge,, *348and on this Court, to fix tbe value of tbe services of counsel is in violation of tbe Constitution — and tbis on two grounds:
1. Tbe “right of trial by jury” is guaranteed without any exceptions wherever a recovery is sought which will transfer money or property of ■one person to another by order of a court, and the amount thus sought to be recovered depends upon issues of fact, as in this case, the value of the services rendered, which is denied by the defendant guardian. Cons., Art. I, sec. 19.
2. It is “class legislation,” which is forbidden by Cons., Art. I, sec. 7, which provides that “No man or set of men _are entitled to exclusive •emoluments or privileges from the community but in consideration of public services.”
This action of the Court gives to lawyers an exclusive and valuable privilege, for when the value of their services is to be fixed and they cannot get the guardian, administrator or trustee to agree to the estimate of counsel as to the value of their services, instead of being relegated to an impartial jury of twelve men, like the doctor, the grocer, ■or the merchant, and all others having claims against the estate, they are now held by this decision entitled to have their compensation fixed by one of their own profession upon the bench, who naturally may have a higher estimate of the value of legal services than a jury, and will be indisposed to antagonize members of the profession who have been their friends and comrades of the bar, and who may become such again upon retirement from the bench.
Though trial by jury was not provided for in Magna Carta (for at that time there were neither juries nor lawyers in England), juries and lawyers were evolved in the development of judicial proceedings long after Magna Carta and at about the same period of time. From that time to this, lawyers have been the foremost advocates and most uncompromising supporters of “trial by jury” in the ascertainment of all disputed matters of fact, and opposed to leaving them to the decisions of judges, who, in this State, have been forbidden since 1796 even to ■express an opinion upon the facts. Laws 1796, ch. 452; Revisal, 585.
Having spent my life in the ranks of the legal profession, I view with alarm this innovation which it seems to me likely to revive much ■of the-hostility to the profession on account of the privilege thus given it by judicial, and not by statutory, enactment. In the first Constitution for this State (Locke’s Fundamental Constitutions, sec. 70, to be found 2 Revised Statutes of 1839, p. 459) it was provided: “It shall be a base and vile thing to plead for money or reward,” and further provided that no one except a near kinsman, not further off than cousin germane to the party concerned, shall be permitted to plead another man’s cause, .and unless he first should take an oath in each case that he has not *349received, and will not receive, directly or indirectly, money or other reward for pleading the canse.
Laws 1801, ch. 12, sec. 3, continuing in force the act creating our first court of appeals, the “Court of Conference,” which was the original of the present Supreme Court, provided: “No attorney shall be allowed to speak, or be admitted as counsel, in the aforesaid Court.” . And a later act, known as “Potter’s Act,” restricted to a small sum the amount which a lawyer could agree upon to be paid by any client. Happily,, we have outlived those days of unreasoning prejudice against the profession, and such acts have long -since been repealed, lawyers being left free to fix their compensation for their services by agreement, like any one else; and, like any one else, to have them valued by a jury in cases of disagreement. By chapter 41, Laws 1879, was repealed the sole remnant of the interference of the courts which had authorized tax fees for lawyers to be assessed in the bill of costs against the losing party.
If, by this action of the Court, the right is now created that the fees of lawyers can, on their application, be fixed by the courts and judgment shall be rendered for the payment thereof, with denial of the constitutional privilege to the party who must pay them of having a jury to assess the value of the services rendered, it is to be apprehended that the special privilege thus given to them as a class will revive the feeling so quickly aroused in all free countries against “special privileges” to any one class that is denied to all others. I do not believe that my brethren of the bar will desire this. Therefore, with profound respect for the opinion of my associates, as already stated, I must enter my earnest dissent to a decision which I deem is in violation of the Constitution.
Having deemed it proper- and necessary to present earnestly, though unavailingly, my opposition to this innovation in view of the troubles that will come to the judges and the public criticism of them if, without statute and without precedent, they are vested by this decision with the invidious power of fixing fees of counsel whenever a guardian or admin-r istrator is unwilling to pay the. amount charged, and counsel are unwilling to submit the value of their services to be fixed by a jury, I have-not thought it necessary to discuss the amount of fees which the Court «ball see fit to allow in this ease. But as the matter of the fee is the sole origin and motive of this proceeding, and is the only point before us, if the Court 'holds it has jurisdiction, I am in accord with the Court that the $1,000 allowed below is excessive for the service rendered, but I am further of the opinion that the $500 allowed here is more than such fair and reasonable sum which the ward’s estate should pay, and in my judgment is an excessive tax upon the child’s estate, which has already , paid a fee of $500. There is no disputed fact and only one single simple question of law, with no complication. See the opinion In re Stone, 173 N. C., 210, 212.
*350As to the adjudication of costs against tbe guardian personally for resisting tbis motion to order tbe guardian to pay $1,000 fees claimed by plaintiffs, it would seem tbat it was clearly ber duty as guardian to oppose tbe allowance of a fee against ber ward’s estate in ber bands of '$1,000 or any other amount wbicb sbe might deem excessive; and as tbis Court bas adjudged tbat sucb sum is double wbat ought to have been ■allowed, tbe costs of dhe appeal should be paid by tbe plaintiffs. Rev., 1279; McLean v. Breece, 13 N. C., 393.
Even if tbe costs, or any part, were adjudged against tbe defendant, it should be adjudged against tbe ward’s estate in ber bands, for whose protection sbe took tbis appeal. Sbe was not acting for herself, but for ber ward (and ber only child) in endeavoring to protect bis estate from wbat sbe deemed an excessive charge. Tbe Court bas adjudged ber ■contention correct. Tbe $500 wbicb sbe is ordered to “pay into court” will be paid solely out of tbe ward’s estate, as tbe whole $1,000 would have been but for ber provident action in appealing to tbis Court. Why should sbe be punished for tbe faithful discharge of ber duty as guardian by being taxed personally with tbe costs? Sbe is not a defendant individually, but as guardian. Tbe costs should be taxed against tbe plaintiffs, who have bad their “recovery” reduced one-balf.