The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1902-09-02
JURORS MUST SERVE
WITHOUT ANY
REWARD
DECISION BY JUDGE GEAR WHICH
WILL START THE WHEELS OF
JUSTICE" REVOLVING AGAIN
TRIALS START TOMORROW.

decision given this morning by Judge
Gear, holding that not only has the
court power to summon jurors and
compel them to serve without pay, but
that there never was any authority for
paying them at ALL Fighter. good and
true men will be called into court to-
morrow, to serve without receiving any
compensation, and the wheels of justice
will revolve again.
Judge Gear overruled the contentious
of the attorney general as to the power
of the court to compel servioa without
pay where pay is provided for, but
takes an entirely new tack and decl1ras
that the statutes of Hawaii fail to
provide for paying jurors at all. Il
this is the case all that part Of the ap-
preparation of $4,000 which went for
jurors was paid out illegally.
The decision was on the motion of
the attorney general for a continuance
of the case of Pedro Rodrigues, 70
the November term, and an order wa
made applying the decision to each OF
the other 30 criminal cases which De-
putty Attorney General Cathcart ask
ed to postpone. The case of Rodrigues
will be tried tomorrow, and that
George Ferris, charged with murder,
will be the next. The decision is in
part as follows:
I'm this case the Territory has made
an application for a continuance until
the November term, 1902, of this court,
| because of the inability of the Terri
| tory to try the case now, owing to the
fact that the appropriation from which
| the juries have been paid and known as
Expenses of Supreme and Circuit
courts, is now exhausted. The jury
was summoned at the opening of the
August term, and tried quite number
of criminal cases, but on account of the
appropriation giving out, the jurors re-
| fused to serve longer and the court ex-
cused them. This case was not reach
ed and the defendant insists upon a
trial at this term, and objects to a con-
! tinuance on the ground that if granted,
| he will be denied the speedy trial
| granted to him by the constitution.
"a number of questions are raised as
result of this application, one Of the
main ones being as to the power of
the court, to compel a juror to serve
without pay where there is a statutory
provision for such pay and the appro-
priation therefor has been exhausted.
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
payment is a matter for the legislature
to provide for and that the court has
nothing to do 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 a jury irrespective
of whether it is paid or not To such
| an argument I 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 count say that it will disregard
the legislature, and legislate for itself
/ by calling jurors who shall not be paid? Z?
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
| almost universally refused to consider
either the justice or policy of sta
| tute.
''It 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 prov-
sions of the statute should be dis
regarded, however it may affect the
| community. The claim that the court
| is not supposed to know whether the
jurors are paid or not is not we'll 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
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 ad-
vanced by some of those whose opinions
are not lightly to be considered, but 1t
| seems that a complete answer to this
| contention is that the legislature OF
Hawaii has seen fit to change the law
in this respect and that while at COM
mon law jury could undoubtedly be
compelled to serve without pay yet it
was within tn power of the legislature
to modify or completely ignore the COM
mon law and provide that all jurors
should receive pay either from the part
| les or from the Territory. Surely 1t
cannot that a failure of the legislature
to appropriate enough money to pay the
jurors during two years time would
operate to repeal the statute providing
that they shall be paid.
IF an appropriation of 100000 had
been asked for in the first place and
the legislature had refused to give it,
and had given but the $4,000 actually
appropriated, there might be some room
to argue that the legislature intended
the jurors, to serve without pay after
the Appropriation was exhausted, as they
would have given the whole if they had
intended to do differently. but as a
matter of fact they appropriated the
l'eXact sum asked for by the head of the
judiciary department, so thI. the lack
| of funds cannot be charged TO any fault
| of the legislature and cannot be used
as an argument that the legislature in
tended that jurors serving after the
funds were exhausted should serve
without pay"
The judge stated, however that the
law OF Hawaii as to jury fees was i'm
Continued on page five.).