The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1894-05-25
OPINION OF THE COURT BY JUDD, CD

OPINION OF THE COURT BY JUDD, CD.
On the 18th of April last defend
ant was brought before the District
Magistrate of North Hilo, Hawaii,
by warrant sworn out by the Laupa-
hoehoe Sugar Company, charging
him with having deserted work.
The defendant is laborer in the
employ of the plaintiff corporation
under a written contract duly made
and executed, according to the Stat
utes applicable, on the 9th Septem-
Der, 1893, by which the defendant
agreed to work for plaintiff for the
term of twenty four months at stipu-
lated wages The defendant moved
for dismissal of the case son the
ground that according to the con-
tract if he stayed off day he was
bound to work two, therefore as the
punishment was prescribed in the
contract the Court could not impose
a punishment in the case"
The contract contained the follow
ing clause. Section "III. The party
of the second part further agrees to
work at night and rest during the
day, whenever directed to do so, and
if absent from work without the con-
sent of the party of the first part or
its agents, that he will perform two
days service for every working day
so absent"
The District Magistrate granted
the motion and dismissed the case.
The plaintiff then appealed to this
Court on the point of law involved
and the parties stipulated in writing
that the Justices Of the Supreme
Court might hear the case in vaca-
ton and give judgment as in term
time. s
By the Court. There was a stat
ute formerly existing under the
Masters and Servants Act, that in
case person lawfully bound to ser
vice absented himself from such SER
vice without leave of his master the
justice could compel the laborer to
serve not to exceed double the time
of his absence. This was repealed
by Chap. % Laws of 1882. We do
not know, nor is it pertinent to our
case to enquire, why such a clause
has been inserted in the agreement
before us which is in printed form.
The clause by which the laborer
agrees to perform two days service
for every working day absent from
work, cannot be specifically enforced
by the law as it stands. Such clause
is valueless as remedy to the en-
ployer, except perhaps that suit
might be brought upon it after the
expiration of the term for damages
for breach of contract.
The clause not being specifically
enforceable, that is by compelling
the laborer to do exactly what he
agreed to do, and perform two days
OF labor TOR every days absence. it
does not displace the remedy pro-
vided by law, which is for the first
willfull absence the Magistrates
ordering him to return to service
and pay costs and for the next alb
sence a fine not to exceed SIS and
costs and for subsequent absences a
fine not to exceed SO and costs.
and Imprisonment at hard labor
until paid. We hold that the clause
of the contract under discussion
affords concurrent remedy only, to
the employer, and does not prevent
the employer from resorting to the
statutory method of enforcement nor
is it waiver by the employer of his
right to such enforcement.
Appeal sustained and the defend
ant Is ordered to return to his en-
ployer's service and pay costs.
A. S. Hartwell for plaintiff.
Honolulu, May %, 1894.