Commonwealth ex rel. Arrott Steam Power Mills Co. v. Arnold

Opinion by Mr. Justice Mitchell, The statute of Westminster has not been repealed, nor has it become obsolete. Bills of exception, even in the old form as established by it, may fill the same place in regard to trials that they always have, and to those who prefer accuracy to rapidity, even at the expense of some time and labor, they are still deserving of use and will receive recognition by this court. Changes of practice however have become necessary to accommodate the requirements of the statute to modern ways. In this there is nothing unprecedented. The statute contemplated the making up of the complete bill when the exception was taken, at the trial; but nearly two hundred years ago this practice had been modified, and it was held in Wright v. Sharp, Salkeld, 288, that the bill need not be drawn up in form until a reasonable time after the trial. See also Buller’s Nisi Prius, 316. And such has always been understood as the practice in this state. Morris v. Buckley, 8 S. & R. 211; Stewart v. Huntingdon Bank, 11 S. & R. 267. The more recent changes in practice consequent upon the introduction of stenographers under the statutes making them officers of court, have been fully set forth in Rosenthal v. Ehrlicher, 154 Pa. 396, and Connell v. O’Neil, Id. 582. In the latter case the distinction established by the recent statutes between exceptions to evidence etc. and exceptions to the charge, and the true limits of the decision in Janney v. Howard, 150 Pa. 339, were definitely pointed out. The generality of the language used in Janney v. Howard had led to much misapprehension in the professional mind as to the requirement of bills of exception in regard to evidence and other matters at the trial, and even as to the charge. These erroneous views were corrected in Rosenthal v. Ehrlicher and Connell v. O’Neil, in which it was held that the record must show affirmatively that the charge was filed by direction of the judge, and without such [327] affirmative showing no act of the stenographer in filing his notes etc. could supply the place of a bill of exceptions. In the last two cases however it was said, in deference to Chase v. Vandegrift, 88 Pa. 217, that if the judge’s direction to file the notes distinctly appeared, he need not personally sign the bill of exceptions or the notes of his charge. The judge is the constitutional head of his court, and no labor saving device can relieve him from the duties of that office, among which is that of seeing and certifying that the record is absolute verity according to the facts as they actually took place. The statute of Westminster of course contemplated the actual sealing of the bill with the judge’s own seal, which he was subsequently called upon to acknowledge or deny, unless the bill was tacked to the record and came up with it, in which ease the seal was assumed to be that of the judge. Buller’s Nisi Prius, 316; Withers v. Gillespy, 7 S. & R. 15. With the-changes of custom and the diffusion of education, the written signature has in practice taken the place of the seal, as the important element of the certification. The act of February 24, 1806, was the first statutory change that opened the entire charge to exceptions though not taken at the trial, but even under this act it was the judge himself who reduced his charge to writing and put it on the record. In Bassler v. Niesly, 1 S. & R. 431, Chief Justice Tilghman said, referring to the practice under this act, “ that a judge should write his own opinion is proper,” but he was not obliged to make a transcript of the evidence; When the act of May 24, 1887, P. L. 199, required the stenographer to take notes of the charge and file them of record, and put the charge, thus filed, on the same footing as a charge filed under the act of 1806, it did not intend, nor could it, even if intended, dispense with the necessity of the judge’s personal examination and certification of the correctness of the notes filed. The charge is his charge and the filing is his act, and the statute of Westminster, still in force, the act of 1806 and. the act of 1887 alike require that he should do it in person and certify his so doing by his own signature. This saves all dispute, and shows conclusively the performance of his duty. This view is not new, nor is it a departure from settled practice. In Taylor v. Preston, 79 Pa. 436, the judge below had refused to correct the stenographer’s notes on the ground that [328] the statute had made them the official and best authority, but this court held that he not only might but should do so, and Woowabd, J., said, “ The administration of the law has been committed to the courts by the constitution, and the same constitution has provided that judges, and not clerks, shall compose those courts. Responsibility for the conduct of legal business must rest where it' has been constitutionally lodged. The legislature would have no power, as they could have had no intention, to impose upon the clerk, who records the details of the trial, the duties of the judge who tries the cause.” This language was used with reference to the duty of the judge to make personal examination of the notes to be filed under the stenographer’s act of 1874, but we are of opinion that it is equally applicable to the subsequent acts on the same subject, and that under the law as it is now, the duty to examine the exceptions when they are merely noted by the stenographer, and the charge filed of record, and to certify them by his own proper signature, is a personal duty of the judge which cannot constitutionally be delegated by him or transferred by the legislature to any subordinate. In Chase v. Vandegrift, 88 Pa. 217, it was held that the judge need not sign the bills of exceptions, but the case did not intend to decide that the judge himself was relieved from the necessity of personal supervision and certification, nor could we under the constitution have so held. The decision in that case must not be carried beyond what was intended to be decided by it, which as read by a majority of my colleagues is only that the judge need' not duplicate by formal bills of exceptions the notes of the stenographer and formally affix his seal to the bills. So understood, it is going beyond the scope of that decision, to claim that it is no longer necessary for the judge to examine and certify the verity of the stenographer’s notes. We are not disposed to stand on mere forms. That the record is true and the judge so declares, is the substance, the form is not very material. He may so declare by formal bills with his seal, or he may adopt the notes of the stenographer,as verity, and so declare by his ‘ certificate at the end of the stenographic report certifying to its correctness as a whole. If he chooses to multiply his certificates by affixing one with his seal appended to every exception to the admission or re [329] jection of evidence, that certainty will not affect the verity of the record. But the distinct assent of the judicial mind to the truth of that part of the record made up by the stenographer must appear of record, by the certificate of the judge under his own hand. He may make as many certificates as he pleases, but he must make at least one which discloses his belief that the stenographic notes are verity and that he so declares. The necessity for such supervision is demonstrated by the present case. We have before us two copies of the charge, one furnished to counsel by the stenographer under the provisions of the statute, and the other filed in the court below and sent up with the record. Both are certified by the stenographer in exactly the same terms, yet they do not agree and the certificate that “ the charge of the court has been approved by the judge who delivered the same ; and that the interlineations were made by me, and marked with my initials,” is plainly incorrect as to both. In the first type written copy there are more than forty corrections and additions in manuscript, not a single one of which is attested by initials, and most if not all of which are in the handwriting of the judge and not of the stenographer as the certificate incorrectly sets forth. The second copy is manifestly re-type written with greatly increased care, but even it fails to observe more than twenty of the judge’s corrections in the first. Most of them it is true are what may be called printer’s errors which do not seriously affect the sense, but some of them, such as “ that damage being incurred by the water in the mill having become let loose, and running over the machinery,” for “ being increased bjr the water,” etc., or “ the items of damage, the rebuilding of the roof and floors,” instead of “ the rebuilding of the tvall, roof and floors,” etc. may be material. Should they become so how are we to know which is correct? The stenographer’s certificate is that both are correct, which is impossible; and if we are to be guided by the fact of the judge’s handwriting, it is the copy filed of record and sent up on the certiorari, that is wrong. It is plain that the judge did personalty examine one of the copies, and correct it. If he had then put his name to it he would have ended all doubt or question on the matter. In making this detailed criticism we desire only to say that the art of stenography is not yet perfect and to illustrate the tendency of mere [330] ly clerical certificates to become formal and perfunctory, and the necessity that the judge should perform this duty in person under the responsibility of his office. The officer of the court below is well known to the profession as an intelligent, competent and experienced stenographer, but even his notes have not escaped the necessity of personal examination and correction by the judge. Upon the general question therefore we are of opinion that the stenographer’s notes of evidence, exceptions, and the charge when filed of record, should be certified by the signature of the judge, and have no doubt the practice thus indicated wül be conformed to by the learned judge below without any necessity for further action on our part. The petition in the present case however goes a step farther, and seeks to have the judge mark certain parts of the charge as specifically excepted to, by inclosing them in brackets or similar device. This was the correct practice formerly, to show the exceptions when they were required to be made specifically in the court below at the time of the trial. But since the change introduced by the recent acts making the whole charge when filed by the judge open to the assignment of errors, that practice though still convenient and commendable is not obligatory, and the judge below is entitled to use his own discretion about it. Nor is the judge after having certified and filed of record in his court the transcript of the evidence showing the exceptions, and the charge, under any obligation to sign a second or separate bill for the party. The purposes which these things formerly served are no longer necessary, having been supplied or rendered superfluous by the recent statutory changes. As these are practically the only matters of relief sought by the petition in the present case, the rule must be discharged.