County Commissioners v. State ex rel. McAliley

Shackleford, J., (After stating the facts.)—The plaintiffs in error state in their brief their contention as follows: “Plaintiffs in error contend that the position of Court Stenographer is an office of fees, and payable only for services actually rendered; that no per diem is allowable, in the home county of the Reporter, for attendance upon the court -unless actually engaged in reporting a case. The appointment, duties and compensation of the Court Stenographer are covered'in Chapter VII, Section 1844 to 1851, inclusive, General Statutes 1906.” ^ The only sections with which we are concerned in this case are Sections 1844, 1845, 1846 and 1847, which read as follows: “1844. Official reporter, qualifications and appointment. There shall be in each judicial circuit of this State a reporter of testimony and proceedings in trials at law in the circuit court. He shall be an expert stenographer and typewriter, and shall be appointed by the Governor, upon the recommendation of the circuit judge, and hold during the pleasure of the Governor. “1845. His- duties.—He shall, upon the discretion of the said judge, report the testimony and proceedings in the trial of any criminal case in the circuit court, and shall report the testimony and proceedings in the trial of any civil case in said court upon the demand, in writing, filed in the cause, of the attorney for either party. He shall not, however, be required'to attend at any trial out of the county in which he may reside, upon the demand of any attorney, unless such attorney shall deposit or secure his mileage and at least one day’s per diem as hereinafter fixed. “1846. Compensation.—He shall be entitled to receive for each day or fraction of a day in which he shall be engaged in the county in which he resides, in reporting such testimony and proceedings, a per diem of five dollars, [97] and for each day or fraction of a day in which he shall be engaged in any county other than that in which he resides, in reporting such testimony and proceedings or in wait-' ing upon the order of the judge or demand of an attorney to the cause, the beginning of the trial,,a per diem of six-dollars, and mileage at the rate of five cents each way, going and returning from his residence; and for each typewritten transcript of his notes of such testimony and proceedings taken on such trial and furnished on demand as hereinafter provided, the sum of twelve and ope-half cents per folio of 100 words, and for each carbon copy thereof, six cents per 'folio. . “1847. (1399-) How paid in criminal cases. His account for his -per diem and mileage for attendance in criminal cases shall be certified to by the judge, and paid as other criminal costs are paid in the county in which the trial is had; his account for attendance and mileage in civil cases shall be taxed as costs in the cause. Upon the demand of the State Attorney, or the defendant in* any criminal case, or upon demand of either party in any civil case, he shall, upon payment of his Jees therefor, as hereinbefore fixed, furnish with reasonable diligence a typewritten transcript of such testimony and proceedings, and his fees therefor shall be taxed as costs in the cause.” We are of the opinion that this contention of the plaintiffs in error cannot be sustained. Under the quoted sections, we think that the Circuit Judge, within his discretion, is to determine when the official reporter shall attend the sessions of the court for the purpose of reporting the testimony in criminal cases, and, as the two respective Circuit Judges have certified that the two accounts of the relator are true and correct, that the Board of County Commissioners cannot be permitted to question the validity of such certificates. See the reasoning in Gill v. State, 72 Ind. 266, and Waushara County v. Port [98] age County, 83 Wis. 5, 52 N. W. Rep. 1135, which would seem to support the conclusion which we have-reached. As to whether or not the relator was actually engaged in reporting the testimony and proceedings in criminal cases for the number of days claimed is not for the County Commissioners to determine, but is beyond their province, as Section 1847, quoted above, especially provides that the account of the official reporter “for his per diem and mileage for attendance in criminal cases shall be certified to by the judge, and paid as other criminal costs are paid, in the county in which the trial is had.” The certificate of the judge is conclusive, and there is no auditing for the County Commissioners to do, but it becomes their duty to cause a warrant to be issued to the reporter upon the Fine and Forfeiture Fund of the county in payment of the bills so certified to be true and correct. We fail to see wherein Sections 970, ,971, 972 and 973 of the General Statutes of 1906, cited and relied upon by the plaintiffs in error have any applicability. We have examined all the authorities cited to us by the plaintiffs in error and are of the opinion that they do not support their contention. The judgment will be affirmed. Browne, C. J., and Taylor, Whitfield and Ellis, JJ., concur. '