Ex parte Reis

McKinstry, J. — 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.) The first act authorized the district judges of San Francisco to appoint short-hand reporters, and provided that, in criminal cases, the compensation of the reporter [234] “ shall be fixed by the court, and paid out of the treasury of the county — on the order of the court.” The Act of 1868 provided for the appointment of a reporter by the county judge of San Francisco, and the payment of his compensation in like manner. Sections 269-271 of the Code of Civil Procedure as they read originally—since amended in particulars which do not effect the question we are considering—authorized each district and county judge in the State to appoint a short-hand reporter, and provided that “in criminal cases, .... the compensation of the reporter must be fixed by the court, and paid out of the treasury of the county in which the case is tried, upon the order of the court.” The statutes of 1866 and 1868, above referred to, were not “ expressly continued in force” by the Code of Civil Procedure. They were therefore “repealed and abrogated” (Code Civ. Proc. § 18), unless kept alive by section 19 of the Political Code. That section reads: “Eothing in either of the four Codes affects any of the provisions of the following statutes, but such statutes are recognized as continuing in force, notwithstanding the provisions of the Codes, except so far as they have been repealed or affected by subsequent laws : — “1. All acts incorporating or chartering municipal corporations, and acts amending or supplementing such acts. “2. All acts consolidating cities and counties, and acts amending or supplementing such acts.” .... 'It is not necessary to decide whether the Acts of 1866 and 1868 were acts “affecting” or “amending or supplementing” the consolidation act or charter of the city and county of San Francisco. If, by virtue of section 19 of the Political Code, the Acts of 1866 and 1868 were continued in force, the district judges and the county judge, in San Francisco, had power under those acts to appoint reporters, and to fix their compensation in criminal cases, to be paid by the treasurer “ upon the order of the court.” If, on the other hand, the Acts of 1866 and 1868 were repealed by the Code of Civil Procedure, sections 269-271 of that Code conferred like powers upon the district judges and courts and county judge and court. In either case, just before the adoption of the present Constitution, the District Courts and County Court could legally employ the power of appointing [235] a short-hand reporter, fix his compensation in criminal cases, and order such compensation to be paid, and it ivas the duty of the treasurer to pay the same “upon the order of the court-.” Section 11 of article 22 of the present Constitution reads: — “All laws relative to the present judicial system of the State shall be applicable to the judicial system created by this Constitution until changed by legislation.” Of course the former “judicial system” was not made applicable to the judicial] system, or series of courts, created by the Constitution of 1879, for the latter was substituted for the former. By “laws relative to the present judicial system” was intended laws passed to render the working of the system harmonious and effective, which would include the laws passed to secure the preservation of evidence, and the payment of compensation to the officers through whose agency it was preserved. Either the Acts of 1866 and 1868 (if not repealed by the Code of Civil Procedure), or the sections of the Code of Civil Procedure relating to the same subject, were therefore made applicable to the judicial system created by the Constitution now in force; the powers previously conferred upon the district judges and courts and county judge and court, with respect to the appointment and compensation of reporters, were transferred to the superior judges and courts. It follows, the Superior Courts in San Francisco have power to fix and order paid the compensation, of the phonographic reporter in criminal cases, and the corresponding duty is imposed upon the treasurer to pay the same upon the order of the court. The petitioner is remanded. Sharpsteix, J., and Ross, J., concurred.