Roberts v. Holden, State Auditor

This is an original proceeding in this court for a writ of mandate requiring defendants to draw a warrant upon the state treasurer in favor of the plaintiff, in payment of certain claims for traveling expenses incurred by plaintiff while acting as assistant court reporter of the Sixth judicial district.

The facts upon which the matter is submitted are that the judge of the Sixth judicial district, pursuant to the statute to be hereinafter referred to, entered into a written contract with the plaintiff, who then resided in Salt Lake City, by which the plaintiff was employed as assistant court reporter for the Sixth district. The contract specified the duties and compensation of the plaintiff, and with respect to his traveling expenses recited that the plaintiff resided at Salt Lake City, Utah, and stipulated that his "traveling expenses between Salt Lake City and the court room of the Sixth judicial district at Richfield were to be paid by the state auditor." Salt Lake City is not in the Sixth judicial district, but is some 169 miles distant. The plaintiff, after rendering services and incurring expenses under the contract, in due time presented to the defendants his duly itemized and verified claims for traveling expenses, amounting to the total sum of $137.60, for expenses actually and necessarily incurred in traveling on numerous trips from Salt Lake City to Richfield and return in the performance of his official duties as assistant court reporter in the Sixth district. The district judge certified that the claims were true and correct, and the amounts justly due from the state. Deeming the claims to be improper state charges, the defendants declined and refused to issue warrants upon the state treasurer for the payment thereof, and this proceeding was thereupon instituted.

The claim of plaintiff is not for expenses incurred while traveling in the Sixth judicial district, but wholly for expenses incurred in traveling from Salt Lake City, where he resided, to Richfield, where he was to serve, and return. That the contract provides for the payment of the traveling expenses claimed is plain and is not denied. The question to be decided is whether authority for the contract is contained within the statute. Comp. Laws Utah 1917, §§ 1875, 1876, 1877, as amended by chapter 36, Laws of Utah 1919. The statute (section 1875), expressly provides that:

"The judge of a district court may employ and contract with a shorthand reporter to report the proceedings of such court, in the manner and under the limitations hereinafter provided."

The statute thus marks the limitations beyond which the contract may not go. The question is thus narrowed to the interpretation of the statute. If, as contended by plaintiff, the statute authorizes the district judge to contract for the payment of the traveling expenses in dispute, it was the plain duty of defendants to approve and pay the plaintiff's claims. On the other hand, if the statute does not authorize the district judge to contract for the payment of the expenses of traveling from a point outside the district where the reporter resides to and from the district where he is employed, the contract is invalid in that respect, and the plaintiff's claims should not be paid.

The particular words of the statute the meaning and interpretation of which are in dispute are found in section 1876, supra. The section contains much matter not pertinent to the question under consideration, and its quotation in full is unnecessary. A condensed statement of its contents, with a full quotation of pertinent parts, is sufficient. The section provides that the judge of the district court may make a written contract with "a competent person qualified to report stenographically the proceedings of the court." It prescribes what the contract shall provide concerning the duties, annual salary (which must be $2,400), fees for transcribing notes, and tenure of employment of the reporter, and that the contract "shall also provide that said reporter shall be paid his traveling expenses actually and necessarily incurred in the performance of his part of said contract outside of the county in which he resides, and such expenses shall be certified by the court to the state auditor, who shall draw his warrant upon the state treasurer for the amount so certified, and the same shall be paid out of the state treasury." The section further provides that the contract may contain such other stipulations and conditions as may be agreed upon by the parties. Section 1877, supra, provides for the appointment of an assistant reporter in certain specified cases, whose duties and compensation shall be the same as prescribed for the regular reporter, provided that his compensation shall only be paid for the time he is actually engaged in such work.

The only qualification prescribed respecting the reporter authorized to be employed is that he be "a competent person qualified to report stenographically the proceedings of the court." There is no hint of any requirement that he must reside in the judical district where he is to serve. The well known fact that in many of the judicial districts of the state there are not always available competent reporters residing in the district is a valid reason why the Legislature purposely omitted to limit the employment of reporters to persons residing in the district. If it follows, as I think it must, that the statute plainly authorizes the employment of a reporter residing outside as well as within the district, the interpretation of that portion of the statute relating to the payment of traveling expenses is made less difficult. With relation to the expenses of the reporter, the statute enacts that the contract shall "provide that said reporter shall be paid his traveling expenses actually and necessarily incurred in the performance of his part of said contract outside of the county in which he resides." This is the only provision upon the subject, and necessarily must be a part of every contract whether made with a resident or nonresident of the district. There is nothing in the statute to indicate that the Legislature intended a discrimination between residents and nonresidents in the payment of their traveling expenses. In this respect the statute is not only plain but is fair and reasonable. In the practical administration of the statute the Legislature very probably assumed that the district judges would in most cases employ reporters residing in their respective districts. Such has been and is the general practice. Considerations and influences, independent of law, will generally induce district judges to prefer residents of the district for this employment, if competent persons are available. And ordinarily it is to be assumed that district judges, even when employing regular reporters who reside out of the district, will, for their own convenience as well as for public economy, stipulate in the contract that the reporter shall reside in the district during the term of his employment. This could not be expected, however, in cases where it becomes necessary to employ assistants on short notice, and for limited periods of service. But where no competent reporter can be had who does or will reside in the district (a situation which has occurred and must again occur in some of the districts), must the sessions of the court be suspended for lack of a reporter until one can be trained at home or persuaded to come at his own cost from elsewhere? This inquiry suggests the important public interest involved in this controversy.

The statute is a general provision conferring power upon the district judges to organize their courts so they may operate and perform their functions. This is the principal object sought to be accomplished, and the statute ought to be given a construction which will promote and not defeat this purpose. The words of the statute, when given their ordinary meaning and significance, clearly include the authority exerted by the district judge in making the contract in question, and such authority is necessary to accomplish the purpose of the statute.

It is no objection to this interpretation that possible abuses may arise, such as reporters removing from their districts to enhance their traveling expenses, or district judges unnecessarily employing reporters at long distances and remote places from their districts, thereby subjecting the state to increased and unnecessary charges. In most cases the power conferred by law upon public officers is capable of abuse. This is unavoidable. It is impossible to construct a statutory straight-jacket for every public agent. In order to provide for emergencies or unusual situations it is common for general laws to confer larger powers upon public officers than is expected to be ordinarily exercised. This is such a 1 statute, and the power is conferred, as many other powers are and must be conferred, in the confidence that it will not be abused. It may be safely assumed that the district judges will exercise the authority of the statute in the public interest, and that no unnecessary traveling expenses will be authorized under their contracts with reporters.

Taking into consideration the subject-matter of the statute, the language employed, the known conditions under which it must be applied, the necessary consequences of its application, the purposes sought to be accomplished, the better reasons favor the conclusion that the statute was intended to authorize the contract entered into between the district judge and the plaintiff.

A further question remains to be considered: The plaintiff's claim is for expenses incurred in traveling from Salt Lake City to Richfield and return. A portion of the distance traveled is necessarily in Salt Lake county, the county where the plaintiff resided. It is contended that in no event is the plaintiff entitled to any expenses incurred in the county wherein he resided, and that his claim is excessive to the extent of his expenses incurred in Salt Lake county. This contention cannot be sustained. Although the words of the statute, "shall be paid his traveling expenses actually and necessarily incurred in the performance of his part of the contract outside of 2 the county in which he reides," may be somewhat ambiguous from a grammatical standpoint, when the context and the reasonable intent and purpose of the statute is considered, it seems a necessary conclusion that it was meant that the reporter shall be paid his traveling expenses actually and necessarily incurred in order to enable him to perform his duty outside of the county, even though a portion of the expenses may be incurred in the county in which he resides.

It is ordered that the writ issue as prayed for.

GIDEON, C.J., and THURMAN, J., concur.