#### Haynie *v.*Camden Gas Corporation.

4-2807

Opinion delivered January 23, 1933.

*Haynie, Parhs & Westfall*and *Gaughan,' Sifford, Godwin*& *Gaughan,*for appellant.

McHaNey, J.

This appeal is prosecuted from an order of the circuit court denying the petition of appellants for an attorney’s lien under § 628-, Crawford & Moses’ Digest. The petition was filed in a proceeding tried in the circuit court, wherein the Camden Gas Corporation was plaintiff and the city of Camden, the mayor, and members of the city council were defendants, in which plaintiff sought to enjoin the enforcement of a city ordinance lowering gas rates in said city to domestic consumers of gas. In that case the mayor, by authority of the council, employed appellants to represent the city and the domestic consumers of gas as attorneys in that litigation. The ordinance fixing the maximum rates to be charged domestic consumers was adopted April 1, 1929. The Camden Gas Corporation refused to accept the new rates fixed by said ordinance, and brought suit attacking its validity. An injunction was issued suspending the new rates, and a bond was given by the gas corporation guaranteeing a refund of the difference to domestic consumers between the old rates and the new, in the event it was finally determined the ordinance of April 1 was valid. The ordinance was sustained. See *Camden Gas Corporation*v. *843*Camden,*184 Ark. 34, 41 S. W. (2d) 979. Tke result was tkat during tke pendency of tkat litigation tkere was a fund accumulated in tke kands of tke Camden G-as Corporation in tke sum of $17,819.17, for wkick amount judgment was rendered. Tke judgment reads: “Tkat tke defendant, city of Camden, Arkansas, do kave and recover of and from tke plaintiff tke sum of $17,819.17 for tke use and benefit of tke domestic consumers of gas witkin tke city of Camden, Arkansas.”

At a mass meeting of tke domestic consumers of gas, an agreement in writing was reacked between appellants, and nearly all tke domestic consumers, wkereby appellants were allowed a fee of 20 per cent, of tke money due tke consumers as a refund from tke gas company. However, tkis petition for a lien was filed. Tke Camden G-as Corporation is ready, willing and able to pay, but one consumer, for kimself and others, filed objection to tke claim of lien on tke ground tkat appellants kad no contract witk tke consumers, either express or implied, but their contract was witk tke city, and not for or on behalf of tke consumers; tkat, if tke city employed them on behalf of tke consumers, its act was *ultra vires,*null and void and not binding on tke consumers. It was admitted by tke intervener tkat appellants were employed by a large number of tke domestic consumers, but says said employment was a voluntary arrangement between them, wkick did not affect tke rights of those consumers who did not employ them. Tke court held appellants were not entitled to a lien on tke fund due interveners, and dismissed its petition.

Every act of tke mayor and members of tke council in tke defense of tke action to nullify tke ordinance, including tke employment of attorneys, was on tke behalf and for tke benefit of the domestic consumers of gas in tke city of Camden. Not a single cent of benefit did accrue or could kave accrued to tke city of Camden, as a corporation. If tke new rates fixed in tke ordinance of April 1, 1929, were sustained, all tke benefit therefrom would accrue to the domestic consumers. The bond given was *844for their benefit, and tbe final judgment rendered was one in favor of tbe city “for tbe use and benefit of tbe domestic consumers of g’as.” Tbe city employed counsel to defend an action, not for its benefit, but for tbe benefit of these consumers, with their knowledge, and, if not with their actual consent, with their implied consent. In other words, tbe action of tbe city was as tbe representative or agent of tbe consumers who stood by and, without objection' accepted tbe service and its beneficial result. Under such circumstances the law implies an agreement, or that tbe agreement made by tbe city in employing counsel bad been ratified. In either case tbe domestic consumers would be liable to pay counsel for their services a reasonable fee, and, if any should refuse to do so, tbe court should declare a lien on tbe fruits of tbe litigation. Compare *Board of Education of Lonoke Comity*v. *Lonoke County,*181 Ark. 1046, 29 S. W. (2d) 268.

Tbe judgment will be- reversed, and tbe cause remanded with directions to declare a lien in appellant’s favor to tbe extent of 20 per cent, on tbe fund in tbe bands of tbe Camden G-as Corporation.