The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1902-09-03
JURY MUST
WORK FREE
Gear WilINoWHear
All Criminal
Cases.
NOW A QUESTION
OF INTERPRETER
Court Decides That Law Does Not
Require Jurors TO Be Paid
for Services.

Judge Gear yesterday denied the Hio-
ton for continuance in the criminal
cases and Immediately called a jury of
without pay. In a written decision by
the second judge he holds that no jury
can be called unless there is money to
pay its members under the Hawaiian
statute. and then just as the attorneys
had become reconciied to this view of
the court, Judge Gear basing his opin-
ion upon California cases decided that
he had the power to call jurors, and
that they were not entitled to any pay
under the laws of the Territory.
Taking the views of the court it
would seem that the money already
paid to jurors since the beginning of
the biennial year were wrongfully and
illegally taken from the Treasury and
probably suits for their recovery of the
amounts so paid would lie, if the action
was brought before the second judge.
In spite of the courts order that
jurors are not entitled to pay those
that do serve will probably be able to
collect from the Territory for their
services, when the legislature makes
an appropriat ton for unpaid bills. Rec
ords of the attendance of the jurors
will still be kept and certified copies
of such records would probably be
sufficient as a claim against the gov
eminent for services rendered.
A new snag will probably be encoun-
tered this morning upon the taking up
of the criminal calendar. The first
case set for trial is that of Pedro
Rodriques a Cuban for whom a Span
ish interpreter will be required. AS
there is no money to pay such an in
terpreter either the case will have to
be continued or the jury excused again.
The cases of George Ferris and Kimura
both charged with murder in the first
degree will follow that of Rodriques.
Judge Gear reversed himself only
once in his decision, first holding that
the legislature provided that jurors
must be paid and that he had no au-
CnOTlly
then deciding that the Territory had no
After setting out the facts regarding
the continuance the court said:
First it is contended that the court
has nothing to do with the payment of
the jurors, and that the court should
shut its eyes to the fact that there are
no funds left to pay the jurors, as their
-:,I-E
to provide for and that the court has
nothing to 90 with that part of the law.
This argument takes for granted that
the law requires payment for Jurors in
all cases, and is based on the claim that
the court must call jury irrespective
of whether it is paid or not. To such
an argument 1 must respectfully enter
my dissent. If the legislature has pro-
vided that the Territory shall pay one
who is called as juror, fixing the fee
and providing a mode of payment, how
can this court say that it will disregard
the legislature, and legislate for itself
by calling jurors who shall not be paid ?
Courts of law are never at liberty to
disregard a statute merely because of
policy. In fact, policy decisions have
ever been condemned and courts have
either the justice or policy of a stat
ute.
ut seems to me therefore that the
peculiar conditions which exist here,
in that there is no money to pay jurors
cannot be used by the court as an ex-
cuse for holding that the plain pro-
visions of the statute should be dis
regarded, however it may affect the
ri LIT. r.
is not supposed to know whether the
jurors are paid or not is not well found
ed, and for the court to call a jury and
let them find out after the term is over
that there is no money to pay them
would in my opinion be perverting and
prostituting the power of the court, and
would be nothing more nor less than
swindling under the guise of exercising
alleged power which does not exist.
1T is next claimed that as at COM
mon law jurors did not receive pay, the
court could compel them to serve now
without pay, under the power inherent
in the court. The claim has been adj
vanced by some of those whose opinions
are not lightly to be considered but it
seems that a complete answer to this
contention is that the legislature of
in this respect and that while at COM
mon law Jury could undoubtedly be
compelled to serve without pay. yet it
was within the power of the legislature
to modify or completely ignore the COM
mon law and provide that all jurors
should receive pay either from the
parties or from the Territory. Surely it
cannot be that a failure of the legisla-
ture to appropriate enough money to
pay the jurors during two years time
would operate to repeal the statute pro-
viding that they shall be paid.
If an appropriation of $4,000 had
been asked for in the first place and
the legislature had refused to give it,
and had given but the $4,000 actually
there might be some room
to argue that the legislature intended
the jurors. to serve without pay after
the appropriation was exhausted. as