The opinion
WELCH, J.
(dissenting). I agree with the rules of law stated in the syllabus, and with the various statements in the majority opinion as to the general authority of the Governor to employ counsel to represent the interest of the state in proper cases. I also agree that generally the Legislature may appropriate money to pay for such services.
I think, however, that the Governor must have and does have the authority in employing attorneys, to contract with them, limiting the amount of fee to be collected, and that the Legislature does not have power to appropriate money and pay an attorney’s fee over and above the fee properly provided for in such a contract of employment. The majority opinion pays scant attention to the contract in this case which limits the fee to be collected. The majority opinion does this upon a conclusion that there was “mutual misunderstanding on the part of the contracting parties. . . .” There is no pleading by either party, and of course no evidence, of any such “mutual misunderstanding,” or of any misunderstanding by either party. The contract is plain and unambiguous and I am not able to understand how the majority can either assume or conclude that there was any such “mutual misunderstanding,” or any misunderstanding at all by either one of these two original contracting parties. I think the payment of this attorney’s fee should be based upon the contract of appointment and employment or more nearly in line with the provision set out in the contract.
The majority opinion implies that the fee contracted to be received would not *238 even be binding as a limitation upon the power of the Legislature, and that in any event and regardless of the employment contract the Legislature might fix a fee even in excess of the amount contracted to be received and accepted as satisfactory compensation. Perhaps the majority opinion does not intend to so hold, but insofar as it implies such a legal philosophy I must disagree, and express these dissenting views. Pertinent parts of the contract which I construe to be a legal limitation on the amount of attorney’s fee which may be constitutionally paid are cited at 192 Okla. 204 , 134 P. 2d 337 .
To the extent that any legislative appropriation would pay any fee in excess of the sum the attorney had solemnly agreed to accept as ample and full compensation, that legislation and appropriation would constitute a gift of public funds. Such a gift would be prohibited by the Constitution and the several decisions of this court on the point.
I am authorized to say that GIBSON and O’NEAL, JJ., concur in these views.