(dissenting). I do not think In re Janitor of Supreme Court, 35 Wis. 410, 419, should cut any figure in the decision of this case. No provision was made by the written law for an attendant upon this court, so resort was had to the inherent power mentioned, the necessity being unquestionable. Neither do I think sec. 2431, Stats. (1898), as amended by ch. 224, Laws of 1903, should cut any figure, except in so far as it recognizes an inherent power of appointment to be exercised in case of necessity, considering, the written law making quite remote any such event.
As to circuit courts the power of appointment of court attendants in the ordinary is in abeyance because the legislature, manifestly, has so willed. It has provided for such attendants and their compensation and manner of payment. Subd. 3, see. 725, Stats. (1898), provides that the sheriff of each county shall attend the sessions of the court therein with his deputies to the number of not to exceed three, who shall receive a per diem for each attendant, and that, by special *22order, tbe court may authorize a greater number of deputies when it shall be engaged in the trial of any person charged with a crime. Subd. 22, sec. 731, Stats. (1898), provides that a deputy, in attending court, shall receive compensation at the rate of $2 per day for each day, to be paid out of the county treasury. Sec. 733, Stats. (1898), provides that all such fees shall be paid out of the county treasury of the county wherein such service shall have been rendered in the same manner as fees of jurors attending such court are to be paid. Sec. 2560, Stats. (1898), provides that at the end of every term of a circuit court or within ten days thereafter the clerk of the court shall give to each juror a certificate of the number of days attended by him upon the court; that the-juror shall receipt therefor before delivery thereof to him, and that the county treasurer shall pay the amount due to him.
Thus it will be seen, the written law amply provides for circuit court attendants, except in emergency cases of a temporary character, the appointing power being lodged in the sheriff; also amply provides for payment of such attendants at a specified amount for each day’s actual attendance upon a session of court, and provides for an auditing officer, to wit, the clerk of the court, as regards the number of such days’ attendance, and makes it mandatory on the county treasurer to recognize such audit by paying every holder of the required evidence of attendance $2 per day. Neither the circuit judge nor the county board has any duty whatever in respect to the matter, except, doubtless, the former should supervise the clerk in respect to performance of his duty.
Can there be any doubt but that, in view of the situation stated, the legislative idea is that the matter of court attendants and payment thereof shall be governed by the written law so far as possible. It may well be that courts are not obliged to bow to the legislative will in such matters, but they ought to in all cases where their constitutional authority is *23not prejudicially interfered witb. The written law does not leave any occasion for use of the court’s inherent power, except in purely emergency cases, and it is manifest thát no such case existed in the instance before us. "When the legislature, without prejudicially trenching upon judicial power,, has lodged jurisdiction over a particular matter completely elsewhere than where it has commonly been exercised, with reasonable expectation that the new instrumentality will adequately deal with such matter, though srxch power, if lodged in the court by the organic law, could not be prejudicially taken away, if there is no good reason why the court should not regard itself substantially superseded in such matter, it should do that, and its failure in that respect should be viewed as jurisdictional error. Burnham v. Norton, 100 Wis. 8, 75 N. W. 304.
The opinion of the court goes upon the ground that the appointment in question was made to meet a necessity, but it seems the conception of necessity fails to give due significance to the ample provision for court attendants in the written law, and to appreciate that there cannot well be any necessity for a judicial appointment except in case of the number of deputies competent for the sheriff to appoint being insufficient, or refusal on his part to appoint competent persons. I understand there was nothing of the kind in this case. The learned circuit judge evidently supposed that since court attendants generally are needed, that was all the necessity required to enable him to make such appointment, while, in fact, the further element of refusal or inability of the sheriff to furnish the necessary attendants was required. In my judgment,’ the appointment in this case, since the sheriff stood ready to furnish a proper attendant, was akin to usurpation.
I, of course, agree that, in any event, the appointee is only entitled to compensation at the rate of $2 per day. However,, the opinion of the court fails to make plain that, assuming the respondent to he entitled to pay at the rate of $2 per day for *24the numbers of days he actually attended sessions of the court, the county board has nothing to do with the matter. The whole proceeding of presenting the claim to such board for allowance was wrong and the reversal and remand for a new trial, as it is liable to be understood, i. e. that respondent can recover on such trial for such days’ attendance as may be certified under sec. 2560, Stats. (1898), in my opinion is wrong. No action of this nature is necessary or proper. The county board has no jurisdiction of the subject matter, therefore the circuit court did not obtain any. The cause should be remanded with directions to dismiss with costs, but without prejudice to respondent’s obtaining a certificate from the clerk of the circuit court of the number of days he actually attended upon sessions of the court, as shown by the court journals, and obtaining thereon of the county treasurer $2 for each such day. Under the decision it is the duty of such clerk to give such certificate, and mandamus is the remedy for refusal. Upon presentation of such certificate to the county treasurer it will be his duty to pay as aforesaid, and mandamus is the remedy for refusal. The written law, as we have shown, in unmistakable terms, provides for payment of court attendants in that manner and such manner is exclusive. That is the effect of Oneida Co. v. Tibbits, 125 Wis. 9, 102 N. W. 897, and Philler v. Waukesha Co. 139 Wis. 211, 120 N. W. 829, if there is any ambiguity in the matter. The county board has no more to do with the subject than it has with the payment of jurors, state witnesses, court reporter, or the judge himself.