Opinion
Hearing Granted by Supreme Court Sept. 13, 1934.
Appeal from Superior Court, Los Angeles County; J. T. B. Warne, Judge.
Proceedings by Stanley Fraser and Marie Keller, respectively, for writs of mandate requiring the Superior Court in and for the County of Los Angeles to order H. A. Payne, as auditor of such county, to issue his warrant to H. L. Byram, as treasurer of such county, to pay the cost of a daily transcript of the proceedings in a criminal case. From judgments or orders granting the writs, respondents auditor, treasurer, and county appeal.
Reversed.
COUNSEL
Everett W. Mattoon, Co. Counsel, and S. V. O. Prichard and Fred M. Cross, Deputies Co. Counsel, all of Los Angeles, for appellants.
McAdoo & Neblett, of Los Angeles, for respondents.
Buron Fitts, Dist. Atty., and A. H. Van Cott, Deputy Dist. Atty., both of Los Angeles, amici curiæ.
OPINION
HOUSER, Justice.
The issue involved in this appeal from each of three orders or writs of mandate relates to the asserted right of the superior court in and for the county of Los Angeles, on the trial of a criminal action therein, to order and to require the county auditor to issue his warrant on the county treasury in payment of the cost of a daily transcript of the "voir dire" examination of both prospective and retained jurors, and the proceedings generally, including the oral testimony of witnesses and the exhibits, if any, introduced on the trial of the action. Or, as stated by appellants in a more restricted form, but as applied more particularly to the facts in the instant matter, the question is "whether the superior court may order a daily transcript in a criminal case at the expense of the county, the transcript being for use solely during the trial and there being no appeal in the case."
It is a rule of universal application that a county treasurer, as such, legally may be required to pay out moneys that are the property of the county when authorized so to do by the provisions of statute only. In the case of Irwin v. County of Yuba, 119 Cal. 686, 690, 52 P. 35, 37, claim was made by a supervisor of a county for expenses incurred by him in his attendance upon a conference with representatives of other counties of the state for the purpose of considering the subject of flood protection. In terms, no statute expressly authorized such expenditure. With reference thereto, in part, the court said: "It may be safely stated as a rule that one who demands payment of a claim against a county must show some statute authorizing it, or that it arises from some contract, express or implied, which itself finds authority of law. It is not sufficient that the services performed, for which payment is claimed, were beneficial."
To the same effect, see Gibson v. County of Sacramento, 37 Cal.App. 523, 525, 174 P. 935; Woods v. Potter, 8 Cal.App. 41, 45, 95 P. 1125.
From the fact that the attention of this court has been directed to no statute by the provisions of which either the preparation of a daily transcript of the testimony and proceedings in a criminal action on trial, or the payment of the cost thereof, is expressly authorized, it safely may be assumed that no statute so provides. If statutory authority exists for the outlay of county moneys in that behalf, it must arise from powers impliedly conferred. In that connection, the only statutes which appear to have any direct bearing upon the situation are sections 269 and 274 of the Code of Civil Procedure. Both of such statutes are a part of title 4 of part 1 of said Code, suitably arranged under chapter 3 thereof which purportedly deals with the general subject of phonographic reporters. Section 269 is entitled "Phonographic reporters for superior courts, their appointment, and duties." Following a provision therein whereby a judge of the superior court is authorized to appoint such a reporter, the duties of the reporter are stated in detail, including the direction that, "if directed by the court, or requested by either party, (he) must, within such reasonable time after the trial of such case as the court may designate, write out" his phonographic notes, etc. Section 274 is entitled "Fees"; and concerns the compensation to which the reporter shall become entitled for performing each of his several duties. As far as any provision of such statute is claimed to be pertinent to the instant matter, it is that "in criminal cases * * * the fees for reporting and for transcripts ordered by the court to be made must be paid out of the county treasury upon the order of the court. * * *"
Appellants point to the language of section 269 by which, "if directed by the court," the reporter is required, within a reasonable time "after the trial," to transcribe his phonographic notes; and contend that nothing therein contained authorizes an order by the court to the reporter to make a daily transcript of such notes. On the other hand, by respondents herein, as well as by the district attorney of Los Angeles county, who appears on this appeal as "a friend of the court," it is conceded that the language of said section 269 imports no statutory authorization to the judge, or to the court, to order that a daily transcript of the proceedings generally on the trial of an action be made. Indeed, it is freely admitted by such counsel that the provisions of section 269 relate solely to the duties of the reporter, and that the purported authority of the court in the premises is not derived therefrom. But it is urged that the language of section 274 of the Code of Civil Procedure to which attention hereinbefore has been directed, although containing no express authorization to the trial court to order a daily transcript of the trial proceedings, carries with it an implied authorization so to do. In that connection (perhaps outside the record, but nevertheless an undisputed fact), appellants direct attention to the condition, that during the fiscal year last past, the cost to the county of Los Angeles for having criminal cases reported and the testimony therein transcribed was more than $141,000, and that a large portion of such cost represented daily transcripts (such as those in the instant case), in which no appeal was taken from the judgment rendered in the respective actions, and which transcripts (again like those herein) served no use or purpose other than as a convenience to respective counsel during the course of the trial. Without meaning either to charge, to insinuate, or even to suggest the possibility of the existence of any sinister intention, or lack of good faith, on the part of any one, either in the instant case, or in either or any of those in which daily transcripts were so ordered, nevertheless it should be apparent that a recognized legal practice in that regard would open the door to future "raids on the treasury" that might become unduly burdensome, if not intolerable.
Reverting to the language of section 274 of the Code of Civil Procedure, it will be noted that it contains no direct, or any, authorization to the trial court to order a daily transcript in any action or proceeding. It relates solely to compensation to which "in criminal cases," etc., a reporter may become entitled for "transcripts" ordered by the court. By the terms of the following section (274a) of the same Code, "judges of the superior court" specifically are authorized to have various and sundry actions and proceedings "taken down in shorthand and transcribed by the official reporter of such court"; which work includes the furnishing by the reporter of a transcript of the testimony received in an insanity proceeding, a proceeding relative to an alleged feeble-minded person, or a proceeding in which the custody or the support of minor children is involved. But, with reference to appeals in criminal cases, section 1246 of the Penal Code provides that: "The record on appeal shall be made up and filed in such time and manner as shall be prescribed in rules to be promulgated by the judicial council. * * *" And in that regard only, the rule promulgated by the judicial council (section 7 of Rules of the Supreme Court and of the District Courts of Appeal) makes provision for an order by the trial court by which the reporter is directed "to transcribe such portion of his notes as in the opinion of the court may be necessary, * * *" etc. And it may be that there are statutes which specifically provide that, after the trial of an action, "transcripts" be made of the phonographic notes taken in such proceedings; but no direct mention is made, either in section 274 or elsewhere, of "daily transcripts"; nor is any particular reason apparent, either in the language of any statute to which attention has been directed, or otherwise, for assuming that "daily transcripts" were intended to be included in those transcripts which the trial court is expressly authorized to have made.
As hereinbefore has been indicated, public funds properly may be disbursed only on statutory authorization so to do.
In the case of Mattingly v. Nichols, 133 Cal. 332, 65 P. 748, it appears that by means of a writ of mandate the petitioner sought to compel a county auditor to issue a warrant in pursuance of an order made by a justice of the peace for the payment of the transcription of phonographic notes taken at a preliminary examination of a defendant in a criminal action then pending in the court over which such justice of the peace presided, and at which preliminary examination the defendant therein was ordered discharged from custody. Other facts therein analogous to those herein are that no appeal was (or could have been) taken from the judgment, and the transcript of the phonographic notes served no useful purpose other than possibly for convenience of respective counsel at the hearing, or for the purpose of keeping a record of the proceedings. The writ was denied and the applicant therefor appealed from the ensuing order to the Supreme Court. On such appeal the appellant contended that as section 871 of the Penal Code made it the duty of the magistrate to indorse, in writing, his order of discharge upon the "depositions" taken, authenticated, and certified in the manner prescribed in section 869 of the Penal Code, and as section 883 of the Penal Code required that the "depositions" so taken should be filed with the county clerk in all cases, whether the defendant was discharged or held to answer, it necessarily followed that the shorthand notes of the testimony received at the preliminary examination should have been transcribed, as otherwise the order of discharge of the defendant could not have been indorsed upon the "depositions." With reference thereto, in part the court said: "This contention is, we think, erroneous. * * * If it was the intention of the legislature to require the reporter’s notes to be transcribed and filed with the original notes in cases where the accused is discharged, as well as in cases where he is held to answer, it would have been easy to say so. No distinction whatever would have been made. It is not material to inquire whether the transcribed notes could or would have been of any use. The question * * * is whether appellant is entitled to pay, having performed the service upon the demand of the accused and under the order of the examining magistrate. But neither the state nor the county can be charged with a liability unless it is authorized by law. No discretion is vested in the justice of the peace in the matter. His authority must be found in the statute, if he has it, and we do not find any."
In the case of Richards v. Superior Court, 145 Cal. 38, 78 P. 244, 245, based upon the provisions of section 269 of the Code of Civil Procedure, on behalf of a defendant in a criminal action a writ of mandate was sought to compel a judge of the superior court to order a transcription of certain testimony received at the trial of such action. After reciting law to the effect that in a criminal action the defendant therein is "exempted from bearing all or any part of the costs of his trial," in part the court said: "But each and all of these exemptions are matters of express statutory enactment. Where the Codes are silent, the costs are still thrown upon a defendant in a criminal case, as well as upon a defendant in a civil case. * * * The construction contended for by petitioner would lead to unbearable abuses and untold extravagance. It would result that in every criminal case in which a conviction was had, by the mere request of the defendant, he could cause every word of the proceedings to be transcribed, and the cost of the transcription made a burden upon the county. * * *"
The case of Fox v. Lindley, 57 Cal. 650, was an appeal from a judgment made on application for a writ of mandate to compel the treasurer of the county of Los Angeles to pay to the respondent reporter "certain fees for taking down the testimony and proceedings in a criminal proceeding before a justice of the peace, pursuant to the provisions of section 869 of the Penal Code as amended March 3rd, 1881." In reversing the judgment the court discussed the lack of express statutory authority for the payment of the services rendered by the reporter, and closed its observations with the following statement: "In the absence of any law prescribing the fees which the respondent was entitled to charge for his services, the certificate of the magistrate that the services were rendered did not constitute a demand upon the county treasury which the treasurer was bound in law to pay."
Gallagher v. Boyle, 58 Cal.App. 571, 209 P. 82, was an appeal from a judgment rendered by a superior court, by which an application for a writ of mandate was denied. By his application for such writ, the petitioner therein sought to compel a county auditor to issue his warrant upon the county treasurer for the payment to the petitioner of a sum of money claimed to be due to him for the transcription of certain testimony taken by him as a reporter at a preliminary examination of a defendant in a criminal action then pending in a police court; and in which action the defendant therein was ordered to be discharged from custody. The transcription of said testimony was made upon an order of the superior court, entered in another criminal case in which the defendant in the action in the police court did not appear to have been a party. On the appeal, the Supreme Court held that, in the absence of statutory provision therefor, the judge of the superior court was without authority to order payment for the transcription of the testimony.
In the instant case, in accord with the principle announced in the foregoing authorities, it is concluded that by neither express, nor by implied, statutory provision was the order here in question authorized.
However, by the respondents, as well as by the "friend of the court," it is contended that for the making of such order no statutory authority was required; but that the order was made in pursuance of the inherent power of the court. Concretely, the question of what is inherent in or to the court is often difficult of determination. The dictionary definition of the word is general, abstract, and of little assistance; but in each of several different cases on appeal where the question has been involved in a determination of the respective issues, the court of last resort has given its interpretation of the word.
The case entitled In re Waugh (1903) 32 Wash. 50, 72 P. 710, was an original disbarment proceeding in the Supreme Court of the state of Washington, in which the respondent therein was charged with having perpetrated a fraud upon the court in the matter of his admission to practice law. By his demurrer to the petition, the respondent raised the question of the jurisdiction of the court to try the action. Relative to the inherent power of the court in the premises, the Supreme Court of the state of Washington said: "It is contended by the relator that this court has inherent power to protect itself from fraud, and will exercise summary jurisdiction over its attorneys, who are in a sense officers of the court. The inherent power of a court is an unexpressed quantity and an undefinable term, and courts have indulged in more or less loose explanations concerning it. It must necessarily be that the court has inherent power to preserve its existence and to fully protect itself in the orderly administration of its business. Its inherent power will not carry it beyond this."
In Fuller v. State (1912) 100 Miss. 811, 57 So. 806, 807, 39 L. R. A. (N. S.) 242, Ann. Cas. 1914A, 98, the question involved was whether, after a defendant in a criminal action had been sentenced, the trial court had power to suspend execution of such sentence. With reference thereto, in part the court said: "Power to suspend the execution of its sentence has not been conferred upon any court in this state by our Constitution or statutes, and consequently, if such power exists at all, it must be one of the inherent powers of courts, or be derived from the common law. The inherent powers of a court are such as result from the very nature of its organization, and are essential to its existence and protection, and to the due administration of justice. Watson v. Williams, 36 Miss. 331; In re Waugh, 32 Wash. 50, 72 P. 710; S Am. & Eng. Ency. Law, 28; 4 Words and Phrases [First Series], 3605. It cannot be said that power to suspend the execution of a sentence is essential to the existence or protection of a court, or that it is essential to the due administration of justice, and consequently it has no such inherent power."
In the case of State v. Superior Court (1931) 39 Ariz. 242, 5 P.2d 192, 194, it appeared that certain attorneys who then represented a person who theretofore had been arrested, and who thereafter became a defendant in a criminal action, procured an order from a judge of a court of record in which said action thereafter was filed, and by which order leave was given to inspect the premises in and about which the crime of which the defendant was charged was alleged to have been committed. Through the medium of a writ of certiorari, the prosecuting attorney raised the question of the power of the court to make such order. In considering the question of the inherent power of the court in the premises, the court said:
"We consider next whether the order can be justified under the inherent powers of the court. * * * These inherent powers may be defined as such powers as are necessary to the ordinary and efficient exercise of jurisdiction. Hale v. State, 55 Ohio St. 210, 45 N.E. 199, 36 L. R. A. 254, 60 Am. St. Rep. 691. These powers do not depend upon constitutional grant or in any sense upon the legislative will, and are undefined and probably undefinable as to their exact extent. For instance, the power to maintain order; to secure the attendance of witnesses; to enforce process; the arrangement for a proper place and conveniences for the meeting of the court-all these powers must inhere in every court, or the purpose of its creation fails, and such being the case, they need not be given expressly by the Constitution or statute, and cannot be taken away by the latter. There is, however, one important and indeed vital limitation on these powers. They must be such as are necessary for the ordinary and efficient exercise of jurisdiction, and therefore exist only when the jurisdiction to maintain which they are necessary is first established.
"In considering, therefore, whether the court has the inherent power to do any particular thing, we must first ask: ‘Has it jurisdiction over a certain matter or question?’ If that be answered in the affirmative, then, and not until then, the second question may be asked: ‘Is the power invoked necessary for the ordinary and efficient exercise of that jurisdiction?’ * * *"
Other cases contain similar declarations concerning the inherent, or what may be termed the natural, power of the court; but from the excerpts of those which have been cited herein and which appear fairly to reflect the meaning which should attach to the term "inherent," it may be deduced therefrom that unless the questioned act be of such character that, if the court be divested of its power to exercise it, or without its exercise, the court will, or may be restricted in its right to function in a constitutional manner or degree, or, in the administration of justice, by reason of such deprivation of power the efficiency of the court will, or may, be seriously impaired, such act may not be said to be of or within the inherent powers of the court. Thus tested, in the instant matter the practical question arises as to whether, in a criminal action, should the trial court be dispossessed of its assumed power to order a daily transcript of the testimony, etc., taken or received therein, and to require the payment by the county treasurer of the cost of such daily transcript, the existence of such court, or the exercise of any of its proper functions would be threatened; or, if not entailing such dire consequences, would the administration of justice materially suffer by reason thereof? In response to such question one need consider only the operation of trial courts as ordinarily conducted. For many generations last past courts not only have responsively functioned under their constitutional powers, but ordinarily have done so most efficiently, without either a daily or any transcript having been made of the phonographic notes of their procedure. Indeed, in a large percentage of civil cases no phonographic notes are taken of testimony received on the trial thereof; and in the absence of statutory or other requirement so to do, in criminal cases undoubtedly the same situation might prevail. At most, a daily transcript of the testimony is for convenience only. That it may be of great assistance to respective counsel may not be denied; but ordinarily its usefulness to the judge of the trial court is negligible. It is even questionable whether the existence of a daily transcript on the trial of an action tends to the efficiency of the court. It may well be that, in a majority of the cases, its presence therein retards, rather than aids, in the dispatch of business. Used as a reference to the testimony given by witnesses, for the purpose either of cross-examination or of impeachment, although frequently beneficial, in the aggregate and considered as an entirety, its usual effect is but to prolong the trial of the action, without any adequately compensating result. At any rate, it is the opinion of this court that on the trial of an action the lack to the respective counsel therein of such an assumed convenience as a daily transcript of the testimony of witnesses, etc., does not present such a situation that therefrom it will necessarily follow either that in any respect the existence of the court. as such, will be seriously, or at all, threatened; or that the efficiency of the court, as an institution of government, in the exercise of any of its several lawful functions, will be even adversely affected, much less essentially impaired.
Counsel who represent the "friend of the court" urge the point that the act of the court in ordering a daily transcript of the testimony, etc., was judicial in its nature. However, they fail to argue, or to present any authority to show what, assuming the correctness of that position, should be the consequence thereof. To this court, as far as concerns a determination of the issue herein involved, it seems immaterial whether it was a judicial act, or whether it was ministerial, or even legislative in character. No matter how it may be denominated or classified, if it was an act which was unauthorized in law, and consequently one whch neither the county auditor nor the county treasurer in his official capacity was legally required to respect, the fact that in legal nomenclature it properly may bear a fancy or high-sounding designation or name, will not place it in a category where it will be "lese majeste" either to criticize it, or lawfully to test its binding force and effect. And since, as hereinbefore has been made to appear, the order in question was justified neither by the express, the implied, nor the inherent powers of the court, the suggested point relative to the nature of the act becomes unnecessary of discussion or determination by this court.
It is ordered that the judgments or orders which are the foundation for the instant appeal be, and each of them is, reversed.
We concur: CONREY, P. J.; YORK, J.