, 1892-03-14
JUDGE SMITHS STOP !.
THE SUPREME COURT HALTS HIM
In STENOGRAPHIC WORK.

"
TO the Expense OF Paying 9ol
stenographic Report OF q Friai
ENotiee-All decisions of the suprem,
court Will appear In THE DAILY AM
WEEKLY TRIBUNE.
State ex rel J. A. Rockford, Prosecuting
Attorney Of Yakima County, VS.. the Su
perior Court of Yakima County and Sol
Smith, Judge. No. 506; filed March Il
1892.
The relator IS the prosecuting attorney d
Yakima county; the respondent, Hon. Sol
omon Smith, is the superior Judge ot
Kliekitat county, and, by reason Of the dis
qualification Of Hon. Carroll B. Graves, su.
perior Judge of Yakima county, to try a
certain cause, entitled Benton ct al. VS.
Johncox ct all, Judge Smith was in De
cember last called to preside at the trial Ol
that cause The cause thus on trial is a
civil action to which neither the state mol
Yakima county is a party. On the 18th
day of December the the court made an or
der directing A. l.. Slemmons, .'court stem
ographer, TO make two copies of his notes
Of the testimony allowing twenty cents
per folio to him therefor. On the 18th day
of February, 1884, Slemmons presented a
claim against Yakima county for $27.60 for
1873 follos 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 warrant upon the county treasury
for the amount. On the same day (Feb-
ruary 12) the court, apparently for the pur-
pose Of having upon the records its rea-
sons for ordering the payment of the stem
ographer's fees, caused second order to be
made, and dated back to the time of the
time of the original order, December Is, as
as follows:
disappearing to the court in this cause
that this is an equity cause involving the
rights of 123 persons to use the waters OF a
certain stream of water in Yakima county.
and that each of said persons claim separ-
ale and equitable relief and that 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 takenby a stenographeru under
the control and supervision of the court: /:
Therefore be it ordered, that A. L. Slem-
mons, a stenographer, be and he is hereby
appointed by the court to make a steno-
graphic report of the evidence and proceed
ings in this case, and Cranscribe the same
for the use of the court
The auditor under the advice Of the re-
lator and the county commissioners re-
fused to issue the warrant, and was on
February 18th 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 adiudged to be guilty
but judgment was suspended because he
answered that he had acted under the ad
vice of the relator. But by the same order
special counsel were directed to inquire in
to the conduct of the relator and the COM
mlssloners with view to melting punish
ment to them for their alleged contumacy
IN Il
the pressure of the proceedings against him
issued the required warrant. On February
10th one Lesh, a citizen taxpayer of Yaki-
ma county, commenced an action in the SUI
perior court to restrain the auditor from
issuing his warrant for this sum Of $27.6O.
and another similar allowance made to til g
stenographer, and applied to the court for
restraining order, which was refused,
1t appears that at the time the petition
was filed here the case of Benton VS.. John
cox had been on trial for twenty-one davs /;
that its trial would consume from twenty
to thirty days more; arrd that the fees Of
the stenographer will foot up to nearly or
quite two thousand dollars. And it is all
legged, without contradiction chat from
time to time orders will be made requiring
the auditor to draw and issue to the stem
Qgrapher warrants for partial payments to
him, which will be followed up bv con-
tempt proceedings: as in the instance al
ready mentioned or, that if the auditor
snail yield and issue warrants as ordered
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 civil action the court has no
power to charge the county with the ex-
pense of stenographeris notes of the tes-
tlmony. 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 civil action the pro
ductlon OF their proofs rests with the re-
spectlye parties. The state and its instru-
ment, the county, furnish the courts and
their necessary officers and records. but
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 ac-
tlons, or between long or short cases. All
stand upon the same footing.
The second order in Benton VS.. Johnoox
was based upon the assumed impossibility
that the court could properly try case
involving so many parties and conflicting
rights without the aid of a stenegrapher:
but it certainly has not heretofore occurred
that parties to so complicated q case would
omit to furnish, at their own cost, the
means by which the courts action could
be guided with certainty, and we are not
convinced that it would be SO in this in
stance.
Appeal is made by the respondents to
the code of procedure, sec 40, 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 gen
eral jurisdiction before its enactment into
statute. This court might as well say
that because the prime necessity to its ex-
ercise Of any Jurisdiction at all in causes
appealed to it is the record, the county OF
the state should, therefore, furnish these
in civil cases, or that, inasmuch as we can
not, 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 StoWeH VS.. Jackson Co., Su-
pervisors (Mich, J % N. w. 557, which sup.
port court orders against county treasu-
ries, were both made in capital criminal
cases, where the state was party, and the
the purpose served was the susfenance of
ju1ies and can have no analogy to this
matter.
ITO be continued.