McAllister v. Hamlin

Foote, C. C. — This action is for a writ of mandate to compel Mr. E. W. Hamlin, the auditor for the county of Los Angeles, to draw a warrant on the treasurer of that county for the sum of $34.40, the same being the amount of compensation allowed the petitioner, and respondent here, for services rendered as a short-hand reporter, under an appointment made by a justice of the peace of that county, in taking down in short-hand the testimony of witnesses examined before the justice of the peace as a committing magistrate in a criminal action where the state of California was plaintiff and one J. J. Hedges was defendant. The court below granted the writ as prayed. From the judgment rendered in the premises this appeal is taken.

The point to be determined seems to be, in what way and at what rate a short-hand reporter performing such services is to be paid.

The petitioner’s contention is, that the method of his compensation, after being appointed to act, is fixed by section 869 of the Penal Code, subdivision 6, which is: “The reporter’s compensation shall be fixed by the magistrate before whom the examination is had, and shall [363]not exceed that now allowed reporters in the superior courts of this state, and shall be paid out of the treasury of the county or the city and county in which the examination is had, on the certificate and order of the said magistrate.”

Here the proper certificate and order were made.

The legislative intent to he gathered from the language of the statute was, that short-hand reporters appointed to perform such services as this were to be paid out of the county or city and county treasury by the magistrate exercising a sound discretion in fixing the compensation for the services after they were rendered, but such fixing to be within a certain prescribed limit; that is, not to “exceed that now allowed reporters in the superior courts of this state.” There is no question raised but what the auditor must draw the warrant if the magistrate had the power to fix the compensation and allow it under the subdivision of the section, supra, without any action by the board of supervisors. This law' went into effect on the fourteenth day of March, 1885. At that date section 274 of the Code of Civil Procedure upon that subject ran thus: “The official reporter shall receive as compensation for his services in civil actions and proceedings, for taking notes, a sum to be fixed by the court, or a judge thereof, not exceeding ten dollars per day, and for transcription a sum to be in like manner fixed, not exceeding twenty cents per hundred words; provided, that .... in criminal cases, when the testimony has been taken down or transcribed upon the order of the court, the fees of the reporter shall be certified by the court, and paid out of the treasury of the county or city and county in w'hich the case is tried, upon the order of the court.”