delivered the opinion of the court:
First—It is insisted by the relator that the act of 1887, providing for the appointment of official court reporters, is unconstitutional. The question as to the constitutionality of the act is hardly an open one, as it was held to be constitutional in certain respects in the case of People v. Raymond, 186 Ill. 407.
The act is said to be in contravention of sections 9, 10, and 13 of article 10 of the constitution of 1870, upon the alleged ground that it is an attempt by the legislature to authorize the judges to determine the compensation of the official court reporter, and thereby to take from the county board the privilege and constitutional prerogative of determining and fixing" the amount of compensation to be received by such reporter for his services. This precise point was passed upon by this court in People v. Raymond, supra, where, in referring to this feature of the act of 1887, we said: “The legislature has the power to appropriate the funds of a county, or to authorize the judges of the circuit courts to appoint shorthand reporters, and make their compensation a charge upon Cook county, without the action of the board of commissioners.”
It is further said, that the act does not comply with section 13 of article 10 of the constitution, which provides that “every person who is elected or appointed to any office in this State, who shall be paid in whole or in part by fees, shall be required by law to make a semi-annual report, under oath, to some officer to be designated by law, of all his fees and emoluments.” Neither section io, nor section 13, of article 10 of the constitution refers to an office created by the legislature. (Jimison v. Adams County, 130 Ill. 558; People v. Harper, 91 id. 357; People v. Loeffler, 175 id. 585; People v. Bollam, 182 id. 528). In People v. Loeffler, supra, we said (p. 604) : “When an office is created by a statute, it is wholly within the control of the legislature creating it. The length of term and mode of appointment may be altered at pleasure, and the office may be abolished, and the compensation taken away from the incumbent, unless forbidden by the constitution.” The compensation, which the county is authorized by the act of 1887 to pay to the official court reporter, is a per diem, not exceeding $5.00 per day. Such per diem allowance cannot be regarded as “fees” in the sense, in which that term is used in the constitution, but must be regarded as compensation. (Knox County v. Christianer, 68 Ill. 453; Board of Supervisors v. Johnson, 64 id. 149).
Second—The other questions involved in the case depend upon the construction to be given to the act of 1887, as applied to the facts in the case at bar. The petitioner herein presented to the respondent, as-judge of the Superior court, after the case referred to in the statement preceding this opinion was tried, a bill of exceptions to be signed and sealed, containing a transcript of the evidence, introduced upon the trial, which had been taken by a shorthand reporter, who was not the official reporter of the court. It is not claimed by the respondent in his answer that the bill of exceptions, presented to him, was in any respect incorrect or inaccurate. The sole ground, upon which he refused to sign and seal the same, was that the transcript of the evidence, embodied in it, had not been prepared by his official court reporter. The answer shows that the respondent did not examine the bill of exceptions, submitted to him for his signature and seal. The seventh paragraph of the agreed statement of facts is, “that the proposed bill of exceptions, presented to the trial judge by the petitioner herein, was not examined by the trial judge, nor was it found or believed by him to be inaccurate, incorrect or incomplete, but that the sole reason for his declining to sign and seal the same was, and is, that the transcript of evidence and proceedings of the trial therein contained were not made by said official court reporter.” We do not think that the answer of the respondent, as set forth in the statement preceding this opinion, presents any sufficient reason or valid excuse for refusing to sign the bill of exceptions presented to him.
The petitioner in the case, which was tried, had paid approximately $175.00 for the transcript of evidence, embodied in the bill of exceptions, which it presented to respondent, and it would have cost it an additional sum of $140.00 to obtain from the official court reporter another transcript of said evidence. Respondent states in his answer that he declined to pass upon or determine the correctness or incorrectness of the draft of the bill of exceptions, presented to him, unless he had the assistance of a transcript of the notes of said official reporter of such evidence. Respondent also says in his answer that he told the petitioner that he would require it to pay in the first instance for a transcript of the notes of the official court reporter.
The act of 1887 does not make it obligatory upon the party, preparing a bill of exceptions, to use the notes of the official court reporter only, but he may prepare and submit a bill of exceptions, containing evidence taken by any competent and reliable reporter, whom he chooses to employ.
Section 2 of the act of 1887 provides as follows: “The said reporter shall cause full phonographic notes of the evidence in all trials in the court, for which he is so appointed, to be taken down, and one transcript of the same, if desired by either party to the suit, or by their attorney, or by the judge of the court, to be forthwith correctly made and furnished to the party so desiring it.” If either party desires a copy of the official court reporter’s notes, he may order the same; but the inference is clear that, if he does not desire such copy, he need not order the same. The official court reporter is entitled to his per diem compensation, and to be paid the same by the county treasurer, independently and outside of the cost of writing up his notes, after they have been taken. Section 2, in the first proviso thereto, provides that, “when the judge trying the cause, shall, of his own motion, order a transcript of said shorthand notes as hereinbefore provided, he may direct the payment of the charges therefor, and the taxation of the same as costs, in such manner as to him may seem just.” The words, “as hereinbefore provided,” refer back to the first part of the section, which states that the reporter shall cause his notes to be taken down, and one transcript of the same, if desired “by the judge of the court to be forthwith correctly made and furnished.” That is to say, if the judge desires a copy of the official reporter’s notes as an aid to his recollection, he may direct the payment of the charges therefor, or the taxation of the same as costs, in such manner as to him may seem just. In the present case, it appears affirmatively that the petitioner did not order a copy of the official court reporter’s notes to be written up. It also appears affirmatively that the respondent did not order a transcript of such notes to be written up, and presented to him. He did not direct the official court reporter to write up his notes, and furnish him a copy to be paid for, as he should direct, and to be taxed as costs. He simply told the petitioner, who presented to him a bill of exceptions, that he would not examine the same, or pass upon its correctness, unless the petitioner would procure a copy of the official shorthand reporter’s notes, and submit that copy to him to be used in connection with his examination of the bill of exceptions submitted to him. In our opinion this was not the correct course to be pursued.
It is the duty of the trial judge to examine the bill of exceptions, which is submitted to him, and to determine whether it is correct and accurate. In People v. Pearson, 2 Scam. 189, we said (p. 205) : “The person, who offers a bill of exceptions., ought to present such an one as the judge can sign. The course to be pursued is either to endeavor to draw up a bill, by agreement, which the judge can sign, or to prepare a bill to which there will be no objections, and present it to the judge. * * * The judge must determine its accuracy, and whether it correctly recites the points made, and opinions excepted to; that he must sign such an one as he believes to be correct, and none other; that he cannot refuse to sign a bill altogether, but must sign one if required, in a case where there have been exceptions taken, provided it is applied for at the proper time. * •* * The law makes him, and properly so, the judge of the propriety and accuracy of the act he is called on to solemnly verify the truth of, so that it shall become a part of the record in the cause; and it is not for other parties to determine the truth.” The trial judge cannot substitute the notes of the official court reporter for his own judgment, or his own recollection, as to what occurred upon the trial. He can only order a transcript of such notes, when such transcript becomes necessary in order to enable him to determine whether or not the bill of exceptions, submitted to him, is correct and accurate, after it has been so submitted.
In People ex rel. v. Williams, 91 Ill. 87, we said (p. 91) : “It is set up in the petition, and not denied in the answer, that a full phonographic report of all the evidence offered on the trial was made at the time by skilled reporters. If this be true, we cannot see how there can be much room for controversy in regard to the evidence. But if this was not the case, the judge, who tried the cause, with the aid of counsel on each side of the case, ought to be able, without unnecessary trouble, to determine what evidence was given on the trial, and incorporate the same in the certificate of evidence. If the judge cannot remember the evidence, he might send for the witnesses who testified before him and examine them again, and in this or some other mode determine the facts to be incorporated in the certificate.” The signing and sealing of a bill of exceptions is not merely a ministerial, but it is a judicial act. “The determination of what it shall contain is necessarily judicial in its character. (Hake v. Strubel, 121 Ill. 321). The judge must determine judicially, in the first instance, what the bill of exceptions shall contain, that it may truly and fairly present the facts and rulings occurring- on the trial of the cause; and may, in the first instance, resort to all available means to determine the facts, and to secure accuracy in making up the record.” (People v. Williams, 91 Ill. 87; People v. Gary, 105 id. 264). Inasmuch, therefore, as the determination of the correctness and accuracy of the bill of exceptions is a judicial act, such judicial function could not, under the constitution, be delegated to an official court reporter. The judge cannot accept the notes of such reporter, as determining what evidence was introduced and what rulings were made, independently of his own recollection and judgment. It is the duty of the court to use such notes, merely as an aid to his recollection, and not as a substitute for it. (People v. Anthony, 129 Ill. 218; People v. Chytraus, 183 id. 190; People v. Holdom, 193 id. 319).
The fourth paragraph in the agreed statement of facts states that “the transcript of evidence and proceedings of the trial hereinbefore mentioned were prepared by competent,' skilled and experienced court reporters, other than the said official court reporter, under the orders, and at the request of the petitioner, by and through its counsel. And said bill of exceptions was objected to by counsel for the plaintiff on the ground that the transcript of evidence therein contained was not made up by the official stenographer, James E. Ford; and the attorney for the plaintiff declined to accept any other.” It thus appears that the bill of exceptions, prepared by the petitioner, was submitted to the counsel on the other side, and no objection was made to its accuracy or correctness, but merely that the transcript of the evidence therein contained had not been made up by the official court reporter. If the opposing counsel made no other objection to the bill of exceptions than the fact that the transcript of evidence therein was not made up by the official court reporter, then the respondent would have been justified in accepting the bill of exceptions presented to him as correct, and in signing and sealing the same. It has been said, in reference to the draft of a bill of exceptions, that “the draft so prepared, or a copy thereof, should be submitted, within the time required by law, to the adverse party for his examination and suggestion of amendments.” (2 Ency. of PI. & Pr. pp. 442, 443). It has also been said that “where the parties do not agree, the trial judge must decide as to the proper contents of the bill and proceed to settle and sign it accordingly. * * * In the settlement of a bill of exceptions, the trial judge exercises a wide discretionary power. He may refer to the reporter’s notes of the evidence, or to his own minutes, and may recall and examine the witnesses as to their testimony on the trial.” (3 Ency. of Pl. & Pr. pp. 448, 449). It has always been the practice in this State for the party who has prepared his bill of exceptions to submit it to the counsel upon the other side for examination. In Weatherford v. Wilson, 2 Scam. 253, we said (p. 256) : “It was no doubt the duty of the judge below to have signed a bill of exceptions containing the testimony; and if the judge, as stated by him, had not preserved minutes of the testimony, he should have permitted the party to have made out a statement of the evidence, and required it to be submitted to the opposite party for correction; and if the parties could not agree what the evidence was, the judge should then have corrected the bill with the best lights he possessed.”
So, in the case at bar, one of the objects of the act of 1887, in empowering the judge to cause a copy of the official reporter’s notes to be prepared for him, is to enable him to settle questions in regard to the accuracy and correctness of the bill of exceptions submitted to him, which the counsel in the case disagree about. He is not invested with the arbitrary power of ordering such a transcript of the evidence to be made by the official reporter, simply because he desires to use such transcript in his examination of the- bill of exceptions, submitted to him, before he has examined the latter to see whether it is correct or not, and before any disagreement of counsel as to its correctness has been called to his attention. Such transcript of the official reporter’s notes is to be used as an aid to the recollection of the judge, and in the determination of disputed points. In the present case, the respondent refused to sign the bill of exceptions, presented to him, upon the ground that the transcript of the evidence, taken by the official reporter, had not been made by the latter, and without any examination at all on his part of the bill of exceptions prepared by petitioner, and without any knowledge on his part that such bill of exceptions was inaccurate or incorrect, and without any complaint on the part of the opposing counsel that the same was incorrect or inaccurate.
“A return to the alternative writ, which alleges that the relator had no authority to compel the respondent to sign the bill, since he himself must be the judge of the correctness of the exceptions, is insufficient, if it fails to show that the bill, as presented, did not state the facts truly, or that the exceptions were not taken in the proper manner and at the proper time. But the writ may direct the judge to sign the bill, as tendered, if it fairly presents the facts.” (High on Ex. Legal Rem.—2d ed.—p. 180.) The return of respondent in the case at bar fails to show that the bill of exceptions, presented to him, did not state the facts truly. The language, used in the case of People v. Holdom, 193 Ill. 319, is precisely applicable here, to-wit: “We do not desire to be understood as requiring respondent to approve the particular bill of exceptions presented to him in the exact condition as presented, .but it was and is his duty to examine it, and to point out where the inaccuracies are, and what corrections should be made; and when the bill in his judgment, truly sets forth the proceedings and the evidence, it is his duty to sign and seal the same.”
Peremptory writ of mandamus is granted.
Writ awarded.