State Reporter's Case

Opinion by

Me. Chief Justice Paxson,

On May 24, 1892, James Monaghan, Esq., was duly qualified as reporter of the decisions of the Supreme Court, vice Boyd Crumrine, Esq., whose term of office had expired on May 21st of the same,.month. At the time Mr. Monaghan was qualified there were over three hundred cases which had been decided during his predecessor’s term of office, and not yet reported. A dispute having arisen between Mr. Crumrine and Mr. Monaghan as to who should report these cases, they have mutually agreed to submit the matter to the judgment of the justices of this court, or a majority of them. In view of the fact that a delay in the publication of the State Reports would be of serious inconvenience to the profession, we have considered the question as presented in the “ agreement of submission.”

So far as we are aware, this is the first time ' any difficulty has arisen. Under the system as it existed prior to the Act of June 12, 1878, the reporter was not a salaried officer. His compensation was the profit arising upon the sales of his reports, for which he was given the copyright, as well as a fee of fifty cents to be taxed as a part of the costs in each case. Under this system it was the practice of each reporter to report all of the cases which had been decided and marked “ to be reported” during his term. He claimed the right to report all such cases, inasmuch as his compensation depended upon the sales of the reports. As no question ever arose as to the correctness of this practice, we are not called upon to express an opinion in regard to it. We refer to it only as a matter of history.

The system of reporting as it had existed under the Act of April 11, 1845, P. L. 874, and its supplements, was changed by the Act of June 12, 1878, P. L. 201, and its supplements of May 19, 1887, P. L. 127, and of March 28, 1889, P. L. 22.

The Act of 1878 makes the reporter a salaried officer, defines his duties, and fixes his compensation. He is appointed by the governor for a term of five years, and may be removed by him at any time for “ incompetency, or a failure to discharge his official duties,” on the address of the judges of this court. •The sixth section of the said act is as follows : “The reporter shall receive for his services under this act a salary of three thousand dollars for each year, payable out of tbe state treasury, in quarterly instalments, the last quarter not to be paid, however, until the decisions for that year shall have been reported and prepared for publication.” Under this act the reporter had no pecuniary interest in the reports; was prohibited from obtaining any copyright thereof, and from receiving any other compensation whatever. The second section of said act, as amended by the Act of May 19, 1887, provides, inter alia, that the “failure of the said reporter to report, prepare for publication and place in the hands of the publishers, the decisions of said court, marked or designated to be reported, for a period of twenty days after a sufficient number of such decisions have been delivered to him to make a printed volume such as required by this act, shall be deemed a failure to discharge his official duties within the meaning of this act; and it-shall be the duty of the governor, upon the complaiut of any one showing such delay in the performance of his duties, to remove said reporter, and fill the vacancy by appointment as hereinbefore provided; and the certificate of the several prothonotaries of said court, stating the number of unreported cases in the hands of said reporter, shall be deemed sufficient evidence of the unreported cases in the hands of said reporter to require the governor to act on such removal; and the said prothonotaries, and each of them, are hereby required to furnish a list stating the number of cases placed in his hands, and the number of pages of manuscript covered by said eases, upon the application of any attorney of said court, upon paying the legal fees therefor.”

Up to this time only such cases were reported as were marked “ to be reported ” by the justices of the court. The Act of March 28, 1889, made a radical change in this respect. It required all of the cases to be reported, making a distinction, however, in the manner of the report between cases marked “to be reported” and those which were not so marked. For this additional labor the reporter was allowed an additional compensation of $3,000 per year for “ stationery, clerk hire and assistance.” The third section repeals “ all acts and parts of acts inconsistent herewith.” It is almost needless to say that this change increased the labors of the reporter. Instead of one or two volumes of reports per year, we now have seven or eight. It moreover rendered it impossible to comply with some of the provisions of the previous acts. As an illustration, we may refer to the one requiring all reports to be placed in the hands of the publisher within twenty days after the decisions have been handed down, under penalty of removal from office. When but a few of our decisions were reported'—only those ordered to be so by the court—the legislature may have supposed that a report of them within twenty days was possible. It was never so in fact. But when the legislature ordered all cases to be reported, the physical impossibility of doing so within the time limited by the second section of the Act of 1878, as amended, is so apparent that we must assume they intended that portion of the said section to be repealed by the Act of 1889. It sometimes happens that enough decisions are handed down in one day to make three volumes of reports. It is absurd to suppose that these can be reported in twenty days. As we cannot assume the legislature intended to impose duties upon the reporter impossible to be performed, we must hold this provision to be repealed for the reason that it is “ inconsistent ” with the Act of 1889.

We come now to the question, who is to report the cases left unreported when Mr. Crumrine’s term of office expired and Mr. Monaghan’s commenced? We might answer this question briefly by saying, the state reporter, Mr. Crumrine, is no longer reporter. His term has expired, and he is functus officio. He can do no official act. Mr. Monaghan fills the office, and is in the enjoyment of its fees and emoluments. He is charged with the performance of all its duties. Moreover, if it were an object for him to report the cases in question, he would have no difficulty in preventing Mr. Crumrine from interfering with him. That it is a burden instead of a benefit does not alter the law of the case. We are not aware of any law which compels Mr. Crumrine to continue reporting after his term of office has expired. It is true, our attention has been called to the sixth section of the-Act of June 12, 1878, before quoted, which provides that the salary of the reporter for the last quarter shall not be paid “ until the decisions of that year shall have been reported and prepared for publication.” We regard this section, however, as being only intended to apply to the reporter who is in office, and not to a reporter whose term of office has expired. Its effect is to prod the incumbent and keep him up to his work. It would be straining the law to apply it to a reporter who has gone out of office, and who is in no default. The fact that Mr. Crumrine has left a number of unreported cases is not to the purpose. This was unavoidable, and will necessarily occur with his successor. Without more, it does not show neglect of duty. Mr. Crumrine has been commendably prompt during his entire term of office, and if his successor shall prove equally so we shall be well satisfied in this respect.

Having faithfully performed his duty, and kept up with the business of the court as far as practicable, we think he is entitled to the last quarter’s salary, and that the Act of 1878 does not and was not intended to interfere with it.

This view works no injustice to either party. But for the unusual meeting of the court on the 13th of July, Mr. Monaghan would have had no duties to perform until the commencement of the October term in Pittsburgh. In the mean time, he would draw the salary and allowance for clerk hire, while Mr. Crumrine, if compelled to report the cases in question, would be doing so, not only without compensation, but at his own expense for the needed assistance. The chances are that Mr. Monaghan will leave his successor quite as much work as Mr. Crumrine has left him. In this way matters will be fairly equalized.

It has been suggested that this view makes it an object for the reporter to neglect his duties, and thus throw an undue burden upon his successor. We will take care of that. The act of assembly authorizes his removal by the governor for neglect of duty upon the address of the justices of this court. The reporter is an officer of this court, and to some extent under ohr control. We are quite sure the incumbent will not need prodding. If he does, we know how to do it.

Our conclusion is that it is the duty of Mr. Monaghan, the present reporter, to report all the cases left unreported by Mr. Crumrine. The latter will, of course, complete any unfinished volume he may have on hand. We are further of opinion that he is entitled to draw his salary for the last quarter.

The prothonotary is directed to file this opinion with the original copy of the submission, and furnish each of the parties witb a copy thereof.