The Supreme Court Stops a Judge From Sending Yakima County the Stenographer’s Bill

The Supreme Court has halted Judge Smith in his stenographic work. A decision holds that a superior judge has no right to put the county to the expense of paying for a stenographic report of a trial.

[Concluded from yesterday’s edition.]

A county is a somewhat peculiar institution, against which claims are not enforced unless they are warranted by some plain provision of law. — Am. and Eng. Enc. of Law, p. 359; Rasmuson v. Clay Co., 41 Minn. 283; Turner v. Wardberry Co., 57 Iowa 440; Foster v. Clinton Co., 51 Iowa 541; Union Co. v. Slocum (Ohio), 17 Pac. R. 876.

In the last cited case the claimant took down testimony in a criminal case under the order of a judge of a court of record, sitting as a committing magistrate, but his bill was disallowed because no statute authorized it.

It is said, however, that the fees of a stenographer could not be taxed as costs against the losing party. If it be so (which we do not presume to decide, as it is not in this case), the conclusion that the county must pay it hardly follows. The case cited from Idaho, McDonald v. Burke, 28 Pac. R. 440, merely held, in substance, that under the statute of that state only fees paid to an official stenographer could be allowed.

Passing now to objections raised to the issuance of the writ asked by petitioner, it is urged, in the first place, that the prosecuting attorney of the county is not the proper relator. But we think it would be a strained construction of the proprieties to hold that the officer whose duty it is made by statute to represent the state and county in all civil actions and proceedings in which they are parties should not, upon his own oath, state the facts which constitute the basis of this proceeding. In Northern Pacific R.R. Co. v. Territory, 3 Wash. Ter. 303, the prosecuting attorney’s relation for a mandamus was sustained, because it was held that the establishment of a railroad depot at Yakima City was a matter of public interest, and certainly the direct payment of money out of the county treasury is of far greater moment. Prohibition is said to be the converse of mandamus, but the same degree of strictness as to parties is not maintained. High, Extraordinary Legal Rem., §§ 764, 779.

The respondents, in response to the alternative writ, file the affidavit of the auditor of Yakima County, in which he says that he does not apprehend any further proceedings for contempt against himself, and knows of none that are threatened. This, it is claimed, shows that there is no necessity for the further interference of this court upon the principle that writs of prohibition are only issued to prevent threatened judicial acts in excess of jurisdiction. But it may be easily supposed that the auditor, having been once disciplined, and being now under a suspended judgment for contempt, will not again take any chance of like treatment, but will quietly obey each order for the issuance of a warrant, and thus be able to say that he does not apprehend further proceedings against him, with perfect truthfulness. We do not suppose, however, that this proceeding was commenced to protect the auditor, who is abundantly able to take care of himself by appeal or habeas corpus, or some other appropriate remedy. The real object of it is to protect the credit and the treasury of Yakima County against what are deemed to be unauthorized demands upon them, made in such a manner, and with such an appearance of authority, that such mischief and litigation will be caused unless they can be anticipated and prevented.

Lastly, it is strongly urged that this is not a case for the prohibition of a superior court or the judge thereof, even admitting that the stenographer’s fees are not a proper county charge, and that more of the threatened orders will be made and warrants issued thereon. Were it not for the pronounced attitude of the court in the proceedings had before it, and its apparent intention to overwhelm all opposition by contempt proceedings, the case might not have been placed in such an attitude as to require or justify the issuance of this writ. Had the court gone no further than to allow the claim of the stenographer, and then left him to the usual remedies of holding an allowed claim against a county for which the auditor refuses to issue a warrant because of the alleged illegality of the demand, a suit of some kind would have followed from which an appeal on the merits could have been taken, and no warrant would have issued until its determination. But as is apparent from the record here, the new orders will certainly be enforced with all the vigor which characterized the first one, and long before any appeal could be heard—if, indeed, an appeal would lie from such an order—numerous warrants would be issued and take their place among the recognized liabilities of the county, and perhaps be paid by the treasurer.

In State v. Superior Court, 2 Wash., we laid down the jurisdictional requisites for a prohibition of a superior court, viz.: First, that it is about to take jurisdiction of a matter of which, by law, it has no jurisdiction. Second, that there is still something which it is about to do. Third, that an application to it for a decision that it has not jurisdiction has been refused. Fourth, that there is no other proper remedy. To substantially the same effect is State ex rel. Reed v. Jones, 2 Wash. 662. In the former case the writ was refused because the thing complained of had already been done; in the latter, there was the same result because it was held that the superior court had general jurisdiction to issue injunctions, and that there was an adequate remedy by appeal.

Counsel insist that the county has an adequate ultimate remedy when it shall be sued for the amount of the warrants, or by injunction against the treasurer forbidding their payment, if they are unauthorized evidences of its indebtedness. But it would be apparent that any resort to such relief must be at great cost, and through much litigation, besides the probability that innocent parties would be defrauded by the acquisition of these numerous warrants for value. For, while both parties agree that the infirmity of their illegality would follow these warrants into whosoever hands they might come, it remains that they do not express upon their face any statement of the purpose for which they were issued, and that they are well calculated to deceive the ordinary buyer.

We are of opinion that, under all the circumstances, the respondents should be inhibited from doing the acts complained of, and it is so ordered. STILES, J.

We concur: Scott, J.; Dunbar, J.; Hoyt, J. Anders, C.J., did not sit at the hearing.