Smith v. Strother

Thornton, J. — Reporters are, by virtue of statute, appointed by the several judges of the Superior Courts, and in the matter of their compensation the legislature passed an act for its regulation, which was approved on the 21st of March, 1885. (Stat. of 1885, p. 218.) The act referred to is an amendment of section 274, Code of Civil Procedure. By the provisions' of this act the counties of the state are divided into ten classes,' according to population, and the compensation of the official reporter for his services is to be by a monthly salary to be fixed by the judge, by an order duly entered on the minutes of the court, which salary is to be paid out of the treasury of the county, in the same manner and at the same time as the salary of county officers. The act further provides that the monthly salary to be fixed as above shall not exceed a certain amount specified for each class; as, for instance, in counties having a population of one hundred thousand and over, which constitute the first class, the monthly salary shall not exceed $300; in counties having a population of less than one hundred thousand and exceeding fifty thousand, said salary is not to exceed $275. The sum which the salary shall not exceed becomes smaller in proportion to the smaller population of each class. The city and county of San Francisco is of the first class, and the monthly salary of the official reporter in such city and county is not to exceed $300.

The language of the act on which the question for decision depends is as follows:—

“The official reporter shall receive, as compensation for his services, a monthly salary to be fixed by the judge, by an order duly entered on the minutes of the court, [196]which salary shall be paid out of the treasury of the county, in the same manner and at the same time as the salaries of county officers.”

It is urged that this act provides a mode of fixing a salary of an officer which is violative of the constitution, in this: that the fixing of the salary in the mode provided would be the exercise of a legislative power.

Now, what is the judge empowered by the words above quoted to do? As we understand it, it is to fix a salary in advance of service by the officer, not exceeding a certain sum per month, to be paid monthly, the salary so fixed to continue until the court shall make an order changing it, and be paid every month during its continuance, though in consequence of a vacation of the court no service is rendered.