7 S.C. 21 | S.C. | 1876
The opinion of the Court was delivered by
We have accorded to this case full and deliberate consideration, not because of the difficulty of the legal proposition on which the appellant relies, but of the serious consequences which its decision involves.
While it is not to be disputed that all the features which give to the jury system its symmetry and beauty must be preserved, and that its value as a protecting shield to the citizen shall not be impaired by weakening any of the elements which have contributed to its effect as an institution prized by the people as their best
The single question made involves the validity of the acts of the Jury Commissioner who participated in drawing the juries. It is claimed that Mr. Lesley, who acted with the County Auditor and the Chairman of the County Commissioners for Pickens County, was not at the time Jury Commissioner for the said County; that, therefore, the Board of Jury Commissioners, which, by the first Section of Chapter 141 of the General Statutes, is to consist of the said three officers, was not properly constituted at the time of the drawing both of the grand and petit jurors summoned to the term of the Court at which the bill was found and the prisoner tried, and that, consequently, the challenge to the array should have prevailed. By the Chapter and Section already referred to, the Jury Commissioner is to be appointed by the Governor and confirmed by the Senate. Lesley had been such Commissioner for two years previous to the drawing of the said juries. His first term expired on 10th January, 1875, and he was not recommissioned until 11th February of th'e same year. When he was reappointed did not appear, though he continued to act during the intervening space of thirty-one days within which the juries were drawn.
The duties of the Jury Commissioner are entirely of a ministerial character. They are defined and prescribed by statutory regulations, and involve no exercise of right beyond that which is comprehended within the specific powers conferred. The title to the office is not brought into question by any direct proceeding to that end, but it is sought to affect it in a collateral way, and not through an issue by the only process under which his right to hold and enjoy it could be determined. Neither is his original appointment to and induction into the office denied, or his continuance in the exercise of its duties. He was recognized as such Commissioner by the Sheriff of the County, who, by virtue of the eleventh Section of the forty-first Chapter of the General Statutes, is to deliver the venire issued by the Clerk, and also by the Board of Commissioners, on the members of which the Sheriff is required to serve it. He was acknowledged and accepted by the Board as one of its duly-constituted and acting members, and, to all intents and purposes, occupied the position, if not of an officer de jure, certainly of one de facto. The acts of such an officer during his continuance of their
A very different question would arise, as was said by Sutherland, J., in Wilcox vs. Smith, (5 Wend., 235,) referring to the case of Rex vs. Vivelet, (3 Comp., 432,) in the following language: “ When the act of the officer was made the foundation of a criminal proceeding, instead of being used as a defense or protection, and it may well be that a strict legal title to the office, under such circumstances, may be inquired into.”
In the case before us there is no charge of bias or prejudice on