The King v. Kahele , 7 Haw. 388 ( 1888 )

Opinion of the Court, by

Judd, C.J.

The Attorney-General moves to quash the array or panel of jurors for the term, on the ground that the Act approved on the 21st 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, (theretofore performed by the Governor in concert with a Judge of a 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 Foster, Esq.”

The Act of 29 August, 1884 (Chapter XLII. of the Session Laws of that year), enacted that the Deputy Clerk and the Second Deputy Clerk shall have “all other powers and duties pertaining to the office of the Clerk of the Supreme Court, or necessary for the transaction of the business of said Court, subject to the direction of the Clerk of the Supreme Court and the approval of the Justices thereof.” Under this statute the two Deputy Clerks can perform any duty which the law imposes upon the 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, indicates that the Legislature did not intend that this function should be executed by the other clerks concurrently with the Clerk. This being inconsistent with the Act of 1884, is a repeal of it to this extent. But the Civil Code, Section 867, prescribes that in case of the absence or death of the Clerk, his deputy shall act as Clerk, etc. It was not necessary to re-enact this provision of law in the Act of 1888, for it was not repealed by the Act of 1884, although it was made unnecessary, for if the deputies can perform any duty which devolves upon the Clerk, when he is present, they can perform these duties when he is absent.

C. W. Ashford (Attorney-General), for the Crown. Messrs. Hartwell, Smith and Brown, per contra.

But although the use of the title, “ Chief Clerk,” indicates that he and not his deputies is to perform this particular duty when a 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 designating the person by whom these duties could be performed if such contingencies should arise.

If the Legislature intended that only the Clerk of the Supreme Court and not the Deputy Clerks, in case of his death, or absence from whatever cause, could legally discharge the duty of preparing the list of jurors, it could have expressed this intention in words admitting of no doubt. But it has not done so.

No statute other than that of 1888 names the Clerk as the “ Chief” Clerk. This statute, however, does, and we are bound to give effect to every word of a statute if it is possible so to do. We give force and effect to the word “ Chief” by the interpretation thus put upon it.

The list of jurors under consideration having been prepared by the Deputy Clerk, in the absence of the Clerk, in concert with a Justice of a Court of Record, it is according to law, and

The motion is overruled.