The Daily bulletin. [volume] (Honolulu [Hawaii]) 1882-1895, 1888-10-16
Court of Record, 1t is according to
law and the motion is overruled.
A. F. JUDI,
r. f. BIcKERToN,
S. b. DOLE.


S. b. DOLE.
OPINION OF MR.. JUSTICE M'CULLY.
II must be considered that the
phrase "the Chief Clerk of the Su-
preme Court" designates the officer
who is elsewhere in the statutes
named the Clerk of the Supreme
Court. This office was established
and the duties of the officer pre-
scribed, by Article xxxiv of the
Civil Code-"Of the Clerk of the
Supreme Court" including sections
$50 to 500, Compiled Laws, page
245. Section $50 provides that "if
necessary the Justices may employ
a deputy clerk to assist said clerk in
keeping up his records and in the
discharge of his other Duties" and
section SCI provides that Sin case
of the death or absence of the clerk
his deputy shall act as clerk"
In the earlier years of the Court,
the clerk requiring assistance, Il
person was employed on the footing
above prescribed, and business in
creasing he was retained as per-
manency. His duties were confined
to attending judges in probate and
keeping probate records. He signed
his name as Assistant Clerk" He
was at a later period directed
to sign as deputy Clerk" He
was appointed by the Justices of
the Court and not by the Clerk and
f, did not sign the Clerks name. In
the course of time it grew to be the
practice that he should administer
oaths and perform some other duties
Of the clerk without regard to the
lease of absence A few years
ago q second assistant OF deputy
was required and was appointed and
commissioned as such by the JUS
tices, and he exercised many of the
functions of clerk. Without in
tending to throw doubt upon the
validity of acts done by these de-
putty clerks, it may be said that it
seemed quite desirable to place
their appointment and their powers
upon explicit statute. Chapter AZ
of the Acts of 1874 is can Act to
provide for the appointment of q
Deputy Clerk and Second Deputy
Clerk of the Supreme Court and to
prescribe the powers and duties of
said clerks" BY this Act the
clerks so appointed are empowered
to issue process, administer oaths,
take dispositions, assess damages on
defaults, etc., and to have all other
powers and perform the duties per-
tanning to the office of the Clerk of
the Supreme Court or necessary for
the transaction of the business of
said Court. The exercise of these
powers is not made dependent on
the absence of the clerk.
In my view the statute of 1884
supersedes the provisions relating
to deputy clerk of the Civil Code
in the sections cited above. One
effect of it is to repeal the provision
requiring the absence of the Clerk
in order to empower the deputy to
perform the Clerks statute duties.
The deputy clerks, "subject to the
direction of the Clerk and the APP.
proval of the Justices" as matter
of order and subordination, are
legally competent at all times to
execute the duties of the Clerk. II
is an original power not depnted to
them by the Clerk.
The statute under consideration
now imposes new duty upon the
Clerk of the Court, styling him the
Chief Clerk. The contention of the
Acknowledgement is that the use Of
the word chief limits the function tc
the officer who is designated, in or
der that the word have some effect
, Il am of opinion that the Legis'
lature did intend to vest this power
in the Clerk and not in the deputies
, but in my view the intention has no
been expressed in words which con
troll, and exclude the operation O
Z the statute of 1884. There are nc
words of Limitation to the Clerk and
prohibiting the deputies, for calling
the Clerk the Chief Clerk does not
exclude the deputies from any
, powers they possessed by a genera
statute, and they are therefore EN-
r powered to perform this duty of thu
( Clerk.
Holding with the opinion of the
Court that the list was legally draw
, by the first deputy and overrulinI
, the challenge to the array, onl,
5 differ, very respectfully, in the vie,
that the legality of the act depend
, upon the absence of the Clerk, an,
d that there is any legal obligation
s that he alone must perform thi
n function when he is present.
4 l.. MoCULLY.
v 1 concur in the foregoing opinion
n EDWARD PRESTON.
# Attorney-General Ashford for tn
d Crown, A. S. Hartwell, w. c
!, Smith ond ~ Rromn NOR noafra