This is an application for a writ of habeas corpus by I. J. Truman, treasurer of the city and county of San Francisco.
The superior court of the city and county of San Francisco, anJ Hon. Carroll Cook, judge thereof, had made its order[*388] directing the treasurer to pay certain moneys to the stenographic reporter of the judge’s court. The order was based upon section 274 of the Code of Civil Procedure as it stood before the unconstitutional amendment of 1885. It reads: “In criminal cases, when the testimony has been taken down or transcribed upon the order of the court, the fees of the reporter shall be certified by the court and paid out by the treasury of the county or city and county in which the case is tried upon the order of the court.” Upon the treasurer’s refusal to comply with the order and pay the moneys as directed therein, he was cited before the presiding judge of the court in contempt proceedings, and, after hearing, was for his refusal adjudged to be in contempt, and ordered to be imprisoned by the sheriff until he complied with the order of court. Upon being taken into custody by the sheriff he sued out this writ of habeas corpus.
By this proceeding there is sought to be determined the validity of that portion of section 274 of the Code of Civil Procedure above quoted. But that question is not justly presented for determination upon this hearing. It is the duty of the treasurer not only to refuse to pay any and all demands which he believes to be illegal, but also to refuse to pay a legal demand unless it shall have been presented to him for payment after compliance with all the forms and requirements of the law touching the presentment of such a demand upon the treasury. If the demand in question was a legal and collectible demand, the stenographic reporter had his remedy in mandate, and, upon the other hand, the treasurer, called regularly before the court in that action, could make such defenses to the enforcement of the claim as he deemed meritorious. But he was not a party to the proceedings which resulted in the order of the court directing the payment, and contempt proceedings, therefore, could not lie against him for his refusal to comply with the order. (Ex parte Widber, 91 Cal. 367.)
Let the prisoner be discharged.