Smith v. Strother

ROSS, J. The last legislature passed an act, approved March 21, 1885, entitled “An act to amend section 274 of an act entitled ‘An, act to establish a Civil Code of Procedure,’ relative to the compensation of court reporters,’’ by which it is provided that 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, "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, with a proviso to the effect that such salary shall not exceed three hundred dollars per month in counties having a population of one hundred thousand and over, and shall not exceed two hundred and seventy-five dollars per month in counties having a population less than one hundred thousand and exceeding fifty thousand and so on to and including counties having a population less than five thousand, in which the maximum is fixed at seventy-five dollars per month. The act contains other provisions not important to mention, and further provides that “in civil cases, in which the testimony is taken down by the official reporter, each party shall pay a per diem of two dollars and fifty cents before judgment [526]or verdict therein is entered, and where the testimony is transcribed, the party or parties ordering it shall pay ten cents per folio for such transcription on delivery thereof; said per diem and transcription fees to be paid to the clerk of the court, and by him paid into the treasury of the county, and such portion as shall be paid by the prevailing party may be taxed as costs in the case. ’ ’

The act is claimed to be violative of the constitution in three respects: First, as “a delegation of legislative power to the judiciary”; second, “in violation of the constitutional provision requiring a uniform system of county governments”; and, third, “because it imposes a new set of officials upon the people, in contravention of section 6 of article 11 of the constitution.” Of course, we have nothing to do with the policy of the law, and it is our duty to sustain it, unless we can see clearly that it is in conflict with the paramount law of the state. And this we cannot do. In so far as the right to confer upon the judges the power and duty of fixing the compensation of reporters is concerned, the provisions of the act in question are similar to those of all of the former statutes upon the subject, commencing with the act of May 17, 1861: Stats. 1861, p. 497. Immediately prior to the adoption of the codes, the law with respect to phonographic reporters of the courts in San Francisco was contained in the act of March 13, 1866 (Stats. 1865-66, p. 232), and in the act of March 28, 1868 (Stats. 1867-68, p. 425). Each of those statutes, as well as the provisions of the Code of Civil Procedure, authorized the judge to fix the compensation of the reporter in certain cases. And in Ex parte Reis, 64 Cal. 234, 30 Pac. 806, it was. said that whether the acts of 1866 and 1868 or the provisions of the code were to control, the determination of that case was immaterial, as “in either case, just before the adoption of the present constitution, the district court and county court could legally exercise the power of appointing a shorthand reporter, fix his compensation in criminal cases, and order such compensation to be paid, and it was the duty of the treasurer to pay the same upon the order of the court.” It is true that the point now made was not made in Ex parte Reis, nor does the constitutionality of the various statutory provisions conferring upon the courts the power of fixing the compensation of reporters seem ever before to have been raised