(concurring in part and dissenting in part). I concur in the conclusion reached by the majority members in this case, but am not prepared to concur in all that is sáid in the majority opinion. That opinion holds in effect that a contract between an attorney and client whereby the former agrees, in consideration of having a part of the money or thing recovered, to pay the costs and expense of the litigation, is champertous and void. This is directly contrary to the ruling of this court in Woods v. Walsh, 7 N. D. 376, 75 N. W. 767. That decision was rendered in 1898. The court therein pointed out that the legislature had defined champerty, and in so doing had singled out certain agreements which were champertous at common law and declared them to be misdemeanors; but that the legislature had not declared a contingent fee contract between attorney and client to be champertous even though the attorney agreed to pay the costs and expenses of the litigation. No subsequent legislature has seen fit to declare such contracts to be void. The law upon the subject remains as it was. See §§ 9412-9418, Comp. Laws 1913. The declaration of the public policy of the state is primarily a matter for the lawmaking body. It is for the legislature, to determine what is best for the public good, and to provide for it by legislative enactments. The province of the courts is to expound the law as it is, and to enforce the public policy as therein expressed. 6 R. C. L. 109.
Nor do I concur in what is said with respect to appellants being estopped from asserting that the claim of Stark county • against the surety company was one of doubtful validity. As a matter of fact this court knows not only that the claim was of doubtful validity, but that under the ruling of this court in Dickinson v. White, 25 N. D. 523, 49 L.R.A.(N.S.) 362, 143 N. W. 754, more than two thirds thereof was without any validity whatsoever. If the litigation between *346the county and the surety company and the different claimants had not been determined or adjusted before that decision was handed down, there can be no question but that the county would have received not to exceed one third of the amount of money which it did. Are suits never brought except where the right of recovery is certain and un•debatable? The question requires no answer. An examination of the decisions of this court-, and of other courts of last resort, will disclose that in many of the cases the members of the court disagreed upon the question of liability. The very fact that a lawsuit is brought by one able and reputable attorney and defended by another equally able and reputable indicates that there is a difference of opinion and some doubt as to liability. While it is true the major portion of the claim upon which Stark county recovered did not constitute a valid claim against the surety company and the adverse claimants this could not .affect the validity of the arrangement between the county commissioners and Murtha, although it does have some bearing upon the actual good faith of the parties thereto. But if that arrangement was void as a matter of law from its inception, it was not validated by the fact that the adverse parties permitted Stark county to receive more than was legally coming to it.