Petitioner was granted a writ of mandamus compelling respondent Duffy to transcribe her notes of all the proceedings taken at the trial of petitioner, when as defendant in a criminal action he was convicted of failing to support his minor child, and also compelling respondent McCallum to transcribe his notes of the proceedings of the court on the motion of petitioner, defendant in the action, in arrest of judgment and for a new trial, it appearing that in said action respondent Duffy was acting as the official reporter at the trial and respondent McCallum was acting as official reporter at the hearing of said motion; and it further appearing that said transcripts were regularly demanded by the defendant in aid of his appeal from the judgment and the order denying his motion for a new trial.
In the present matter petitioner seeks a rehearing for the purpose alone of having the judgment so amended as to allow him his costs herein. It is understood that if costs are not legally allowable, the petition should be denied; and if allowable *Page 150 and allowed by the court, that the judgment be amended accordingly.
Costs are allowable by statutory authority only. They are allowed to the plaintiff, of course, in the following cases: ". . . 4. In a special proceeding." (Code Civ. Proc., sec. 1022) "In other actions than those mentioned in section ten hundred and twenty-two, costs may be allowed or not, . . . in the discretion of the court. . . ." (Code Civ. Proc., sec. 1025.) In an application for mandate, "if judgment be given for the applicant, he may recover the damages which he has sustained, . . . together with costs; and for such damages and costs an execution may issue. . . ." (Code Civ. Proc., sec. 1095)
In the case of Platnauer v. Superior Court, 33 Cal.App. 394, [165 P. 41], relied on by respondents, we held that costs were not allowable for the reasons there stated at some length. The application there, however, was for a writ of review, running against the court. The prevailing party relied upon sections 1027 and 1032 of the Code of Civil Procedure, but these sections were held to be inapplicable, and it was also held that costs could be recovered neither against the judge nor the county.
The statute as to writs of review makes no mention of costs, leaving the question to be determined under the general provisions as to costs. The reasons given for the decision in the Platnauer case are not applicable here. Besides, inmandamus proceedings there is express authority given for recovering costs. The argument of respondents that "shorthand reporters are governmental agencies of the superior court, which is a governmental agency of the state," and hence should enjoy the immunity given the court in the matter of costs, does not strongly appeal to us. The court in the case cited was exercising a judicial function in a matter wherein it had jurisdiction of the person and subject matter and could decide wrongly or rightly. Here respondents had no judicial function to perform; the duty which the defendant in the criminal action (petitioner here) called upon them to perform was ministerial and its performance was made mandatory by the statute. If it be conceded (and we make no such concession) that section 1095 of the Code of Civil Procedure does not "take away, as is contended, the discretion of the court in allowing or denying costs," we should *Page 151 hesitate to exercise such discretion against petitioner, for the reason that the policy and letter of the law give to the defendant in a criminal action the services of the courts and their officials free of expense at all stages of the proceedings, and in harmony with that policy he should have his costs when driven to the court to compel a court stenographer to perform a mere ministerial duty placed upon him by the statute, especially where the performance of this duty is indispensably necessary to enable the defendant in the action to perfect his appeal.
In Power v. May, 123 Cal. 147, 152, [55 P. 796], the supreme court held that sections 1022 and1095 of the Code of Civil Procedure applied where the writ of mandate was against a county treasurer, and that costs of the mandamus proceeding were chargeable against the defendant personally. It was held in Gould v. Moss,158 Cal. 548, [111 P. 925], that section 1095 of the Code of Civil Procedure applies "to original proceedings of that character, whether begun in the superior court, in the supreme court, or in a district court of appeal. The point that this court is without power to award costs in such cases is without merit." Our conclusion is that petitioner is entitled to his costs.
It is ordered that the judgment be amended to read that the petitioner have the writ prayed for and that he have judgment for his costs.
Hart, J., and Burnett, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 5, 1918. Angellotti, C. J., dissented from the order denying a hearing in the supreme court and rendered the following opinion thereon: