Fox v. Lindley

57 Cal. 650

• Court: California Supreme Court
• Decided: July 1, 1881
• Docket: No. 7,750
• Status: Published

Opinion

McKee, J.:

This is an appeal from an order for a peremptory writ of mandamus to compel the treasurer of Los Angeles County to pay the respondent certain fees for taking down the testimony and proceedings in a criminal proceeding before a justice of the peace, pursuant to the provisions of § 869 of the Penal Code as amended March 3rd, 1881.

It is admitted that the respondent was regularly appointed by the justice of the peace to perform the services required; that the services were rendered; and that the committing magistrate certified them according to the provisions of the law. But when the respondent presented his demand, certified according to law, to the county treasurer and demanded payment, the treasurer refused to pay, not because for want of funds in the treasury, but because the demand itself was not authorized by law.

To this it is answered that subdivision 2 of § 869, Penal Code, provides that “ the reporter’s fees shall be paid out of the treasury of the county, or the city and county, on the certificate of the committing magistrate.” But are any fees allowed by law to short-hand reporters appointed under the provisions of § 869 of the Penal Code ? If not, the treasurer cannot be compelled to pay the demand of the respondent; for it is made his duty to “ disburse the county moneys only on county warrants issued by the county auditor, based on orders of the Board of Supervisors, or as otherwise provided bylaw.” (Subdivision 6, § 4144, Pol. Code.) Now the law under which the respondent was appointed did not, in any of its provisions, prescribe any fees to reporters for services rendered under it, nor did it authorize the magistrate who appointed the reporter to fix the fees or compensation to which he might be entitled for his services. In fact, there is no law at all which allows salary or fees to shorthand reporters, except it be § 739 of the Political Code, which provides a salary for the phonographic reporter of the Supreme Court; and § 274 of the Code of Civil Procedure, which prescribes the compensation or fees to which reporters are entitled for services rendered in the trial of civil actions and proceedings, and criminal cases, in courts of record. But those sections have no application to short-hand reporters generally. Section 274 of the Code of Civil Procedure applies only to official reporters appointed by Superior Courts, and acting under their oath of office, in accordance with the provisions of §§ 272 and 273 of that Code. There is nothing in § 869 of the Penal Code which authorizes a reporter appointed under it to charge for his services the same fees as are allowed by law to official reporters of courts of record. Nor is there anything which authorizes a committing magistrate to fix his fees or compensation according to any standard, or at all.

In the absence of any law prescribing the fees which the respondent was entitled to charge for his services, the certificate of the magistrate that the services were rendered did not constitute a demand upon the county treasury which the treasurer was bound in law to pay.

Judgment and order for a peremptory mandamus reversed.

Morrison, C. J., Mtrick, J., Boss, J., Sharpstein, J,, and Thornton, J., concurred.