stenographic notes during the preparation of written opinions by the different members of the court, but after they have been prepared, he must reduce them to suitable form in type to become a part of the permanent records of the court. In doing this it is often the case, because of his fitness and knowledge, that he must verify citations by inserting the proper page, title and volume. It is also often the case that he must take stenographic notes of oral testimony of witnesses upon hearings had in this court. He must be, then, not only a skillful mechanic, but an intelligent helper. During the progress of his work he occupies toward the members of the court not only close personal relations, but enjoys, in connection with his work, their utmost confidence, because of necessity he must know beforehand the result in every decision often many days or weeks before it is made public. It is therefore within his power, either from corrupt motives or by inadvertence or lack of discretion, to betray this confidence, and thus become the source of great public disorder and mischief. This intimate relation cannot be avoided. Hence the particular person who is the depositary of the court's confidence must not only be honest and trustworthy, but also careful, industrious and discreet. His personal habits, associates and mode of life must also be taken into account; for, though one may be ever so skillful and honest, daily contact with him might be objectionable, because his standard in these respects might be too low. The people are entitled to the best service the court can afford, not only in the work done by its members individually and collectively, but also by the employees under its control. They are entitled to have its business conducted with dispatch; hence attentive and effective industry in its employees is indispensable. For the accomplishment of this end the court is entirely and solely responsible, and, if there be shortcoming or failure, either in the intellectual or mechanical quality of its work, it alone is to blame.

In view of these considerations, it is manifest that the power to select the proper employees could not with propriety, be vested elsewhere than in the court itself; and it is equally mani

fest that the power to say whether it may or may not be necessary to have assistance, and what the qualifications of the assistants shall be, may not be vested elsewhere. If the power of appointment exists at all, it is a necessary power of the court, and, since the qualifications of the individual desired is determined in a measure by the amount of compensation paid for his services, the power to fix the compensation is also a necessary power. In short, the court has the inherent power to select and appoint its own necessary assistants and make the compensation due for their services a charge against the state as a liquidated claim. Any other conclusion would be to put the court in the attitude of a petitioner to the board of examiners from time to time, and thus reduce it from its position as a co-ordinate branch of the government to the level of the ordinary citizen who deserves or claims payment for services rendered. But, fortunately, we are not compelled to resort to the assertion of our inherent power. The legislature, recognizing the fact that the court has the power by which it may supply its own necessities, enacted section 6248 of the Revised Codes. It provides: If proper rooms in which to hold the court, and for the accommodation of the officers thereof, are not provided by the state, together with attendants, furniture, fuel, lights and stationery, suitable and sufficient for the transaction of business, the court, or any two justices thereof, may direct the clerk of the supreme court to provide such rooms, attendants, furniture, lights, fuel and stationery; and the expenses thereof, certified by any two justices to be correct, must be paid out of the state treasury, out of any funds in the state treasury not otherwise appropriated." In case no provision had been made for a stenographer, there would have been furnished by this section a mode by which one could have been secured, as well as the power to fix and order his compensation paid. This provision indicates recognition on the part of the legislature of the necessity that this court should be free from any control in the selection of its assistants in case it should itself have failed to make suitable provision for them. Can it properly be said that,

66

since it has made provision, the situation is different? Whatever application section 262, supra, may have to the help employed in the executive department, it cannot have, and was not intended to have, any application to the necessary employees attached to this court. This court, viewed as a department of the state government, is neither an officer nor a board, and therefore does not fall within the terms of this provision. It may well be said that in enacting it the legislature, prompted by motives of economy, deemed it wise to lodge in the board of examiners the discretionary power to determine when an officer of the executive department needs clerical assistance, as well as the amount that shall be expended for it, thus leaving it to the board to say whether any part of an amount appropriated in that behalf shall or shall not be expended. This may not in any way encroach upon the powers of the officers of that department, for the board belongs to that department. But the legislature could with no more propriety lodge in that department the power to appoint the employees of this court than it could empower this court to appoint the employees of the various executive officers.

The provision of the Constitution, supra, cited as a justification of the action of the board, has no application to a claim. such as the one here involved. Nor has section 226, Revised Codes, which declares, in the form of a statute, the prohibition embodied in the Constitution. Both apply to unliquidated claims, and not to those the amounts of which have been fixed specifically by contract or by any department of the government having authority to fix them. In this case relator's claim was fixed by the legislature by appropriation of the amount named in the general appropriation bill. The relator was retained in his position because of this fact. His claim is therefore not an unliquidated claim within the class which must be approved by the board of examiners. The relator is pro hac vice during his employment an officer of the court, and as such his compensation has been fixed by law-not, indeed, in the sense that there is a particular statute declaring in terms what his

compensation shall be, but by virtue of his continued employment under appointment by this court. He is therefore entitled to the amount so fixed.

Nor is it to the point that the general appropriation bill declares that the sums named therein, or "so much thereof as may be necessary," are appropriated for the purposes named. The expression "so much thereof as may be necessary" is not appropriate to any sum mentioned, if such sum has been fixed by law, but, if the expression is addressed to any department of the government, it must be held to be addressed to that department which has the disbursement of the particular sum; so that, so far as it must control the disbursement of the sum appropriated for the employment of a stenographer by this court, the expression is addressed to this court. For illustration: At its last session the legislature, among others, made an appropriation of $10,000, or so much thereof as might be necessary, to pay the incidental expenses of the session. The various claims provided for were properly not regarded by the board of examiners as claims against the state, which it should audit and allow; nor did the auditor hesitate to draw his warrant upon the certificate of the proper disbursing officers of the legislature. These views are so clearly just that it would seem unnecessary to cite any authority in support of them. They have been expressed by the courts generally whenever the same or similar questions have arisen. (White v. Hughes County, 9 S. D. 12, 67 N. W. 855; In re Appointment etc., 35 Wis. 410; In re Day, 181 Ill. 73, 54 N. E. 646, 50 L. R. A. 519; Rogers v. Brown et al. (D. C.), 136 Fed. 813.)

Let the writ issue as prayed for.

MR. JUSTICE SMITH and MR. JUSTICE HOLLOWAY concur.

STATE, RESPONDENT, v. CROWE, 'APPELLANT.

(No. 2,658.)

(Submitted May 8, 1909. Decided May 25, 1909.)

[102 Pac. 579.]

Criminal Law-Assault in First Degree-Insanity-Erroneous Instructions-Burden of Proof- Verdict-Witnesses-Crossexamination-Degrading Character-Hypothetical Questions.

Criminal

Law-Cross-examination-Witnesses-Degrading Character.

1. The court erred in overruling objections of defendant, charged with crime, to questions asked his (defendant's) brother by the county attorney, on cross-examination, whether he was the same Pat Crowe who had been connected with the Cudahy kidnaping, and whether he had not been more or less directly implicated in other offenses of like character. The questions had a tendency to degrade and discredit the witness. (MR. JUSTICE SMITH dissenting.)

Same.

2. It was also error to permit the witness above referred to, to be asked on cross-examination whether he knew of his brother, the defendant, ever having been involved in difficulty or been defendant in a criminal proceeding before.

Same-Insanity Preceding Offense-Evidence-Discretion.

3.

Where the defense relied on by one charged with crime is insanity, the length of time preceding the offense to which inquiry relative to defendant's mental condition may be directed is a matter addressed to the sound legal discretion of the trial judge, subject to review for abuse of such discretion only.

Same-Insanity-Evidence-Admissibility.

4. A lay witness having testified that in his opinion defendant was of unsound mind at the time the offense charged was committed, it was proper to ask him on cross-examination whether he thought defendant had sufficient mental capacity to distinguish between right and wrong and would know that it was wrong to shoot a man, or steal or commit burglary.

Same.

5. The witness mentioned in paragraph 4, above, having answered the question in the affirmative, he should have been allowed on redirect examination to give his opinion as to whether defendant, if he knew it was wrong to do the things enumerated, had sufficient mental capacity to do right and avoid wrong; since defendant could not have anticipated the extent of the cross-examination, and therefore could not, in his direct examination, cover every possible phase of insanity which might be opened to inquiry.

Same-Insanity-Irresistible Impulse.

6. Where defendant on trial for crime relies on the defense of insanity, the question of irresistible impulse is a proper subject of inquiry.