The Daily bulletin. [volume] (Honolulu [Hawaii]) 1882-1895, 1888-10-16

The King VS.. Kahele.
Opinion Of tile Court 6y Judd CD.
The Attorney General moves to
quash the array or panel of jurors
for the term on the ground that the
Act approved on the 10Th day of
August, 1888, devolved the duty of
selecting the list of fifty persons to
serve as jurors and from which the
panel is drawn( theretofere perform, d
by the governor in concert with
judge Of u court of record) upon the
"chief clerk of the Supreme Court"
The Clerk of the Supreme Court was
absent from the kingdom on the 8th
September last, the date when the
list was by law to be made up, and
this work was done by the deputy
clerk who signed himself "Henry
Smith, deputy clerk, acting chief
clerk in the absence of William Fos-
ter Esq"
The Act of goth August, 1884,
| (Chapter IL of the Session Laws of
that Year, enacted that the Deputy
Clerk and the Second Deputy Clerk
shall have call other powers and
duties pertaining to the office of the
Clerk of the Supreme Court or ne
cessary for the transaction of the
business of said Court, subject to
the direction of the Clerk of the Su-
preme Court and the approval of
the Justices thereof" Under this
statute the two deputy clerks can
perform any duty which the law i'm
poses upon tue clerk, concurrently
with the clerk. But the Act of 1888
in distinguishing the clerk who is to
perform the duty of selecting the
list of jurors as the chief clerk indi-
Gates that the Legislature did not
intend that this function should be
executed by the other clerks con-
currently with the Clerk. This be-
ing inconsistent with the Act of
1884 is repeal of it to this extent.
But the Civil Code, Section 867,
prescribes that in case of the alb
sence or death of the Clerk his de-
putty shall act as clerk, etc. 1t was
not necessary to re-enact this pro-
vision of law in the Act of 1888, for
it was not repealed by the Act of
1884, although it was made unne-
cessary, for if the deputies can per-
form any duty which devolves upon
the Clerk when he is present, they
can perform these duties when he is
absent.
But although the use of the title
"Chief Clerk" indicates that he and
not his deputies is to perform this
particular duty when clerk is in
commission and present for duty, it
is too violent an assumption to say
that the Legislature did not have in
view the very necessary statute of
long standing which contemplated
the probable contingencies of death
or absence of this important officer
and provided for them by designat-
ing the person by whom these du-
ties could be performed if such con-
tingencies should arise.
If the Legislature intended that
only the Clerk of the Supreme
Court and not the deputy clerks il
case of his death or absence from
whatever cause could legally dis,
charge the duty of preparing the
list of jurors, it could have express
] ed this intention in words admitting
of no doubt. But il has not done
so.
: No statute other than that o.
1888 names the clerk as the "Chief
Clerk. This statute however does
/ and we are bound to give effect to
every word of statute if it is pos
sible so to do. We give force and
effect :! the word "chief'' by the
interpretation thus put upon it.
The list of jurors under consider
alton having beeen prepared by the
Deputy Clerk in the absence of th,
: Clerk, in concert with Justice of I