STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
April 12, 1972
Honorable Joseph H. Barnett
State Representative
Brown County
Aberdeen, South Dakota 57401
OFFICIAL OPINION NO. 72-15
House Bill 552 relating to the new method of selcting juries.
Dear Honorable Barnett:
You have propounded the following question:
The past Legislature enacted House Bill 552, establishing a new jury selection in South Dakota. Under the present law SDCL 16-13-6, the Clerk of Courts of each county must requisition the jury selectors not earlier than May 15 and not later than June 1 of each year. However, House Bill 552 repeals SDCL 16-13-6 and if the Clerk of Courts would perform the requisition mandated by SDCL 16-13-6, after July 1, 1972, such action would be useless since the new act would then intervene.
Does the Clerk of Courts have to perform the acts provided by SDCL 16-13-6 in view of House Bill 552?
ANSWER: House Bill 552 was not enacted with an emergency clause and therefore will ordinarily take effect on July 1, 1972. Section 24 of the Act states as follows:
This Act shall go into effect in each county of the State for the first term of any court to be held in 1973, and nothing in this Act shall affect any jury chosen prior to that time.
It is patent that the Legislature intended House Bill 552 to become effective as a law on July 1, 1972, but that its provisions would apply to those juries that would serve in the first and succeeding terms of court in each county commencing in 1973. Therefore, the provisions of the Act would have to be followed this year in order to obtain the proper jury panel for the terms of court to be held next year.
House Bill 552 by repealing SDCL 16-13-6 transferred the duties of the clerk and the various jury selectors of the various districts in the county to the new board of jury selectors defined by the Act. All further acts mandated by the new Act are to be performed after July 1, 1972, and only the acts provided by SDCL 16-13-6 need be performed before the new Act goes into effect. The order of the Circuit Judge provided by SDCL 16-13-2 that has to be made before May 15th of each year is retained in the new Act in basically the same form as in the old law.
Since the acts mandated by SDCL 16-13-6 will cease to exist after July 1, 1972, it would be a useless act for the clerk of courts to make the annual requisition on the jury selectors as dictated by SDCL 16-13-6. Therefore, it is my opinion that the Clerk of Courts need not follow the provisions of SDCL 16-13-6. My opinion is based on an old principle of the common law known as LEX NON PRAECIPIT INUTILIA , QUIA INUTILIS LABOR STULTUS, "the law commands not useless things, because useless labor is foolish." (See Mowry's Case, 112 Mass. 400)
It is further my opinion that the other acts established by House Bill 552 will have to be followed in 1972 so that the jury panels selected for 1973 and thereafter will be in compliance with the new act. I have outlined them as follows:
Under the new Act the following timetable has to be followed in order that the jury panels to be selected for 1973 will be selected under the terms of the new Act.
(1) Pursuant to SDCL 16-13-2 and Section 4 of the new Act that does not change 16-13-2 to any great extent, the circuit judge shall, by order, determine the number of names to be placed on the master jury list. This number is twice the total that will eventually appear on the master jury list. This is unchanged in the new Act.
(2) The clerk of courts shall perform the functions required by SDCL 16-13-4 which is to compute the pro rata representation of each jury district upon the master jury list. For this year only this function of the clerk of courts will have to be done after July 1, 1972, since the jury districts are changed in the new Act.
(3) Before September 1, 1972, the board of jury selectors shall meet to prepare the master jury list and sign and file the same with the clerk of courts. Again, this function will have to be done after July 1, 1972, for this year only. In the future it may be done any time after step (1) and step (2) above have been accomplished and before September 1 of each year.
(4) Not later than December 1 the register of deeds, county treasurer and the sheriff, or their substitutes as designed by law, shall meet and make the drawing of the master jury list.
(5) Thereafter the actual jury panels shall be drawn after order of the court as is presently the case.
Respectfully submitted,
Gordon Mydland
Attorney General
