The Judge, the Stenographer, and the $2,000 Bill the County Refused to Pay

State ex rel. J. A. Rochford, Prosecuting Attorney of Yakima County, vs. the Superior Court of Yakima County and Sol. Smith, Judge. No. 506; filed March 11, 1892.

The relator is the prosecuting attorney of Yakima county; the respondent, Hon. Solomon Smith, is the superior judge of Klickitat county, and, by reason of the disqualification of Hon. Carroll B. Graves, superior judge of Yakima county, to try a certain cause, entitled Benton et al. vs. Johncox et al., Judge Smith was in December last called to preside at the trial of that cause. The cause thus on trial is a civil action to which neither the state nor Yakima county is a party.

On the 18th day of December the court made an order directing A. L. Slemmons, "court stenographer," to make two copies of his notes of the testimony, allowing twenty cents per folio to him therefor. On the 12th day of February, 1892, Slemmons presented a claim against Yakima county for $27.60 for 138 folios of testimony transcribed by him, which was on the same day allowed by the court, and the auditor of the county was, in the order of allowance, commanded to issue a warrant upon the county treasury for the amount. On the same day (February 12) the court, apparently for the purpose of having upon the records its reasons for ordering the payment of the stenographer's fees, caused a second order to be made, and dated back to the time of the original order, December 18, as follows:

"It appearing to the court in this cause that this is an equity cause involving the rights of 128 persons to use the waters of a certain stream of water in Yakima county, and that each of said persons claim separate and equitable relief, and that a great amount of testimony must be taken in order to determine these rights, and the court being of the opinion that it cannot properly discharge the duties devolved upon it in trying this cause, without the testimony is taken by a stenographer under the control and supervision of the court: Therefore be it ordered, that A. L. Slemmons, a stenographer, be and he is hereby appointed by the court to make a stenographic report of the evidence and proceedings in this case, and transcribe the same for the use of the court."

The auditor, under the advice of the relator and the county commissioners, refused to issue the warrant, and was on February 15th cited to appear and show cause why he should not be punished for a contempt, special counsel being assigned by the court to prosecute the delinquent. He was forthwith adjudged to be guilty, but judgment was suspended because he answered that he had acted under the advice of the relator. But by the same order special counsel were directed to inquire into the conduct of the relator and the commissioners with a view to meting punishment to them for their alleged contumacy in advising the auditor. The auditor, under the pressure of the proceedings against him, issued the required warrant.

On February 16th one Lesh, a citizen taxpayer of Yakima county, commenced an action in the superior court to restrain the auditor from issuing his warrant for this sum of $27.60 and another similar allowance made to the stenographer, and applied to the court for a restraining order, which was refused. It appears that at the time the petition was filed here the case of Benton vs. Johncox had been on trial for twenty-one days; that its trial would consume from twenty to thirty days more; and that the fees of the stenographer will foot up to nearly or quite two thousand dollars. And it is alleged, without contradiction, that from time to time orders will be made requiring the auditor to draw and issue to the stenographer warrants for partial payments to him, which will be followed up by contempt proceedings, as in the instance already mentioned; or, that if the auditor shall yield and issue warrants as ordered, a number of such warrants will be uttered which will pass into the hands of third parties, rendering much litigation necessary to prevent their collection from the county.

The main contention is that upon the trial of a civil action the court has no power to charge the county with the expense of a stenographer's notes of the testimony. That it can do so is certainly a novel proposition, and it is one for which the able counsel for the respondents cite us to no precedent. In a civil action the production of their proofs rests with the respective parties. The state and its instrument, the county, furnish the courts and their necessary officers and records, but every service, except that of judge, is compensated in money fees exacted from the parties. The witnesses are heard, and unless the parties otherwise provide their testimony rests only in the memory of the judge who hears it. In this there is no difference between legal and equitable actions, or between long or short cases. All stand upon the same footing.

The second order in Benton vs. Johncox was based upon the assumed impossibility that the court could properly try a case involving so many parties and conflicting rights without the aid of a stenographer; but it certainly has not heretofore occurred that parties to so complicated a case would omit to furnish, at their own cost, the means by which the court's action could be guided with certainty, and we are not convinced that it would be so in this instance.

Appeal is made by the respondents to the code of procedure, sec. 49, for support in this juncture. But what we find there is scarcely anything, if it be anything, more than was the common law of courts of general jurisdiction before its enactment into a statute. This court might as well say that because the prime necessity to its exercise of any jurisdiction at all in causes appealed to it is the record, the county or the state should therefore furnish these in civil cases, or that, inasmuch as we cannot, with any degree of convenience, transact the business of the court without printed briefs, the state printer should be at our service in that particular.

State ex rel. Cooper vs. Auditor, etc., 19 Ohio 116, and Stowell vs. Jackson Co. Supervisors (Mich.), 23 N. W. 557, which support court orders against county treasuries, were both made in capital criminal cases, where the state was a party, and the purpose served was the sustenance of juries, and can have no analogy to this matter.

[To be continued]