Bottom v. People

164 P. 697, 63 Colo. 114, 1917 Colo. LEXIS 277

Opinions

Mr. Justice Allen

delivered the opinion of the court:

This is an action brought upon a criminal recognizance or bail bond, in the name of The People, against the plaintiff in error, as surety on said bond.

On December 19, 1912, one . Thomas N. Fitchard had a preliminary examination before a justice of the peace upon a charge of larceny as bailee. He waived examination and was bound over to the District Court, the bail being fixed at $2,000.00 In default of bond he was on said date committed to jail.

On December 23, 1912, the District Attorney filed an information in the District Court, charging the said Fitchard with larceny as bailee. It appears from the record that thereupon or thereafter the District Court, in that case, made and entered the following order:

“At this day it is ordered by the court that this defendant, Thomas N. Fitchard, be let to.bail herein on sufficient surety, to be approved by the clerk, in the penal sum of $1,500.00, conditioned for his appearance in this court on the 6th day of January, A. D. 1913, and from day to day, and from term to term thereafter.”

Later, in the same case, an order of court was entered containing these words:

■“At this day it is ordered by the court that Attorney John T. Bottom be permitted to become surety on the bond of the defendant herein, Thomas N. Fitchard.”

On February 27, 1913, the plaintiff in error, the said John T. Bottom mentioned in the foregoing order, together with the defendant and another, went into the office of the clerk of said District Court, which was not in the court room itself, and there, while not physically in the presence of the district judge, signed the bail bond of recognizance.

Upon that bail bond or recognizance the said defendant Fitchard was released. The said Fitchard did not thereafter come into court to answer the said charge at the time set in said bond, or at any time, but made default. The court accordingly duly forfeited the said bond, and ordered that a scire facias issue against the defendant, and said John T. Bottom, surety.

On June 6th, 1913, a scire facias was duly issued and served on the plaintiff in error, John T. Bottom, as surety on said bail bond, and the usual proceedings in such cases were then had, resulting in a judgment against plaintiff in error for $1,500.00, the principal sum named in the bond.

The plaintiff in error denies any liability as a surety on said bail bond, contending that said bond was taken and approved by the clerk of the District Court, and that it is void, upon the ground that said clerk had no sufficient authority to take and approve said bond.

There is no Colorado statute which limits the ordinary common law power of a district judge to take bail, under the circumstances disclosed in this case. The following from Corpus Juris is therefore pertinent:

“Granting bail and fixing its amount is a judicial or quasi-judicial function. The power to take bail is incident to the power to hear and determine, or to commit, and hence it may be stated as a general rule that any court or magistrate that has jurisdiction to try a prisoner in any case has jurisdiction to discharge him, and, a fortiori, to admit him to bail, subject, however, to such regulations or limitations as may be imposed by statute, such as a statute conferring exclusive jurisdiction upon certain courts and judges, or in certain criminal cases, in the matter of hearing and determining applications for bail. Ordinarily a recognizance may be taken either by a court as such or by a judge thereof.”

6 Corpus Juris, p. 971, sec. 194.

The case of Ex Parte Doyle, 62 W. Va. 280, 283, 57 S. E. 824, 826, approvingly cited 5 Cyc. 76 in saying:

“Bail rests on common law except as statute controls, and that court has power to bail which has power to try and determine the case. The power is inherent in that court by common law, because it has charge of the accused.”

The district judge, in the case at bar, having the power to let the said Fitchard to bail, it remains to be determined whether the judge or court had done all that was necessary to validate the bond here in question, either through the judge personally or by the clerk with lawfully delegated authority, or both.

From the record and the facts as hereinbefore set forth, it appears that the judicial function of allowing bail and fixing the amount thereof was not attempted to be delegated by the judge, but was fully performed by himself. The clerk did not take and approve the bond until after the judge had thus acted. The clerk’s act was in obedience, and pursuant to the order of the judge. It was in compliance with a direction and order of the court.

This act of the clerk was in keeping with many of the duties expected of and performed by a clerk of the court under the orders and directions of the court, which are considered as regular and a lawful authorization in court procedure. In such matters the acts of the clerk in such manner are regarded under the law as the acts of the state through the instrumentality of the clerk effectuating the record as directed by the judge, and are considered and taken to be the official record made by the court.

Under these circumstances it seems to us that the act of the clerk ought to be construed as the act of the judge himself, and be given the same effect and consequence as if the district judge had himself personally taken and approved the said bail bond. We adopt the language, and the rule, of the court in the case of State v. Satterwhite, 20 S. C. 536, where it is judicially stated in the opinion:

“In this case the order for bail expressly required that the recognizance ‘be entered into and approved by the clerk of said court’; it was in effect, the taking of the recognizance by the judge himself, acting through the proper officer of his court, just as many other acts are done by the clerk, through the directions of the judge, as the acts of the court.”

The case of Hunt v. U. S., 63 Fed. Rep. 568, 11 C. C. A. 340, 27 U. S. App. 287, is in point and in harmony with the theory herein followed. The court there said:

“The district judge discharged each important judicial function in connection with taking bail. He decided that the offense was bailable, and fixed the amount of the bond. He also ordered the clerk to approve the bond when it should be signed by two sureties. This order addressed to the clerk was tantamount to an approval in advance of a bond signed by two sureties whom the clerk might accept as sufficient.”

The opinion in the Hunt case, supra, was rendered upon a petition for rehearing, and deals solely with the question confronting us in the present case. There was no statute, state or federal, authorizing the clerk of the United States District Court to admit parties to bail. The sureties in that case contended that the bail bond there in question was void because taken by a clerk, even though he acted under the direction of the court. The original opinion reported in Hunt v. U. S., 61 Fed. Rep. 795, invokes the principle of estoppel, and this was the subject of complaint in the petition for rehearing.

In a per curiam opinion denying the petition for rehearing the court bases its decision chiefly upon the ground that the order of the court addressed to the clerk that he approve the sureties was tantamount to an approval in advance by the judge.

In the case of State v. Sewall, 3 La. Ann. 575, it was held that the district judge could legally delegate to his clerk, or to a justice of the peace, authority to accept a bond. The bond in that case was accepted, not by the clerk, who is the ministerial officer of the court, but by a justice of the peace who was authorized to act in the matter, and the court held that the act of the justice was the act of the court. If a judge may delegate authority to approve a bond to an officer outside of his court, it seems there is greater reason for holding that he may delegate it to "his own clerk, as was done in the case at bar. The case of State v. Sewall, supra, followed the ease of State v. Jones, 3 La. Ann. 9, where after argument and consideration the court held that a bond may be executed in the presence of any person designated by the judge.

These Louisiana cases are not in conflict with the general rule, so frequently mentioned in the brief of the plaintiff in error, that a recognizance or bond taken and approved by an officer without authority is void. The Supreme Court of Louisiana did not intend to abrogate such ¿ rule, in the cases cited, for the same court r, little later in the case of State v. Clendennen, 6 La. Ann. 744, held that a sheriff had no power to bail the accused, and the bond there was held void, but void for the reason that “there was no order of court fixing the amount of the bond, or directing the sheriff to take it.” In the case at bar there is no question but that the necessary or proper order of the court preceded the action of the clerk.

We think that the trial judge was correct in his holding, as appears of record, “that this bond was taken under the direction and supervision of the court.”

The bail bond in the case at bar was endorsed by the clerk as follows:

“The recognizance signed by the above named Thomas N. Fitehardj C. L. Fitchard and John T. Bottom, in my presence and filed and approved by me this 27th day of February, A. D. 1913.

J. Sherman Brown, Clerk.

By J. S. Bergen, Deputy Clerk.”

This endorsement merely evidences the physical action of the clerk in taking and approving the bail bond, but it does not negative his authority to do so under the order of the court. It did not make his act any less the act of the court.

In the case of Bodine v. Comm., 24 Pa. St. 69, it was shown that the docket entry of a recognizance was subscribed by the clerk as follows:

“Taken and acknowledged before me, 26th April, 1853.

A. Cochran, Clerk.”

The court in that case said:

“But the record shows that it (the recognizance) was taken in term time, and we presume it to have been the act of the court — the clerk being their instrument only. Omnia praesumuntur rite esse acta. Nor do the words, ‘taken and acknowledged before me,’ and signed by the clerk, negative this presumption, for they were unnecessary words, and may be rejected as surplusage. The Court of Quarter Sessions had power to admit to bail; the recognizance taken was their act, and not the clerk’s, and therefore it was valid and not void.”

In the Bodine case, supra, counsel for the surety contended that it did not appear from the record that the court directed the accused to enter into a recognizance or fix its amount, which fact the court did not deny, but nevertheless ruled that the act of the clerk was the act of the court regardless of the clerk’s endorsement, if it was done in term time.

In the case of U. S. v. Evans, 2 Fed. Rep. 147, an agreed statement of facts recited, among other things, that “in pursuance to the verbal direction of the court, the bond was executed in the clerk’s office adjoining the court room.” The opinion states that the clerk wrote at the foot of the bond “signed, sealed, and acknowledged and approved by me,” and thereto signed his name as clerk of the court. The endorsement did not deter the court from proceeding on the theory that the bond was taken by the court in the exercise of its inherent power to take a recognizance. The court said:

“Here the court had power to take a bail bond and release the defendant; and, while so lawfully in custody before a proper tribunal, he and his sureties executed and filed this bond. It was accepted by the court, or otherwise he could not have been discharged, and after such acceptance and discharge they will not be heard to say that it was not properly acknowledged and approved.”

The element of estoppel seems to enter into the above quotation, but only to aid the presumption that the clerk acted under the immediate direction of the court, the case assuming, apparently, that the court could delegate to the clerk the ministerial work of taking and approving the bond, a doctrine quite generally followed.

Concerning the delegation of authority to take and approve bonds, the following appears in Corpus Juris:

“The allowance of bail and fixing the amount thereof are judicial acts, and, in the absence of statute otherwise, the court or judicial officer vested with such power cannot delegate it to another. But, where such power has been exercised by the proper court or officer, the act of taking and approving the bail bond has been held to be a ministerial act which may be delegated, without statutory authority.”

6 Corpus Juris, 982, sec. 209, citing State v. Gilbert, 10 La. Ann. 524; State v. Wyatt, 6 La. Ann. 701; State v. Sewall, S La. Ann. 575; State v. Jones, 3 La. Ann. 9; State v. Edney, 60 N. C. 463.

We think that in the case at bar the court by its order delegated to the clerk the performance of simply a ministerial duty, and that the court had the right to do so under the authorities herein cited, and that such ministerial acts of the clerk are to be deemed as the acts of the court, performed by the clerk for the court, according to the views announced in Hunt v. U. S., supra, and State v. Sewall, supra.

The Colorado cases cited by the plaintiff in error do not hold contrary to the views herein expressed. The case of People v. Mellor, 2 Colo. 705, merely conceded that the sureties in a recognizance may show that the court before whom the recognizance was acknowledged, had no authority in that behalf. In the case of Haney v. People, 12 Colo. 345, 21 Pac. 39, the court stated that if bail be taken by a court having no jurisdiction, or by an officer destitute of legal authority, the instrument is void as to both principal and surety, but the court found that the justice of the peace who had approved the bond had power to do so and that the bond was valid. In the case of Rupert v. People, 20 Colo. 424, 38 Pac. 702, no question of the authority to delegate the approval of bail bonds, or acts of clerks approving bonds as ministerial officers, arose. The bond in that case was taken and approved by the sheriff under circumstances when bail could be taken and bond approved only by a judge or two justices of the peace. The sheriff in that case acted on his own motion and without any order of court directing him to do so. In the case of Thompson v. The People, 23 Colo. App. 205, 128 Pac. 863, the facts were parallel to those in the Rupert case, and the recognizance having been taken by an officer without authority was void.

Had the clerk, in the case at bar, acted on his own motion, and without any preceding order of the court directing his action, a different situation would be presented, which it is not now necessary to discuss, but in which the doctrine announced in the Rupert and Haney cases 'might have some application.

We think that the rule that a District Court may delegate to its clerk the authority to perform the ministerial act of taking and approving bail bonds after the court has allowed bail and fixed the amount thereof, is a very salutary one. It does violence to no rule of statutory construction as applied to any statute concerning bail. It eliminates one of the “loopholes of the law” through which a miscarriage of justice may occur. We think that following the rules announced herein would be an adherence to sound principles of law and legal construction and will result in doing justice in the case at bar.

The judgment is affirmed.

Affirmed.

Decision en banc.

Mr. Justice Garrigues, Mr. Justice Bailey and Mr. Justice White dissent.