*390Concurring Opinion op
Mr. Justice McCully.It must be considered that the phrase “ The Chief Clerk of the Supreme 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 prescribed by Article XXXIV. of the Civil Code, “Of the Clerk of the Supreme Court,” including Sections 860 to 869, Compiled Laws, page 245. Section 865 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 867 provides that “ in case of the absence or death of the Clerk his deputy shall act as Clerk.”
In the earlier years of the Court, the Clerk requiring assistance, a person was employed on the footing above prescribed, and business increasing, he was retained as a permanency. 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 did not sign the Clerk’s 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 “ case of absence.” A few years ago a second assistant or deputy was required and was appointed and commissioned as such by the Justices, and he exercised many of the functions of a Clerk. Without intending to throw doubt upon the validity of acts done by these Deputy Clerks, it may be said that it seemed quite desirable to place their appointment and their powers upon explicit statute. Chapter XLII. of the Acts of 1884 is “ An Act to provide for the appointment of a 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 depositions, assess damages on defaults, etc., and to have all other powers and perform the duties pertaining *391to 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 a 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 Clerk’s statute duties. The deputy clerks, “ subject to the direction of the Clerk and the approval of the Justices,” as a matter of order and subordination, are legally competent at all times to execute the duties of the Clerk. It is an original power not deputed to them by the Clerk.
The statute under consideration now imposes a new duty upon the Clerk of the Court, styling him the Chief Clerk. The contention of the Attorney-General is that the use of the word, Chief, limits the function to the officer who is so designated, in order that the word have some effect.
I am of opinion that the Legislature did intend to vest this power in the Clerk and not in the deputies, but in my view the intention has not been expressed in words which control, and exclude the operation of the statute of 1884. There are no 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 general statute, and they are therefore duly empowered to perform this duty of the Clerk.
Holding the opinion of the Court that the list was legally drawn by the first deputy, and overruling the challenge to the array, I only differ, very respectfully, in the view that the legality of the act depends upon the absence of the Clerk, and that there is any legal obligation that he alone must perform this function when he is present.
I concur in the foregoing opinion.
Edward Preston.