Sheriffs — Traffic Arrests — Bail Title 22 O.S. 1101 [22-1101] (1961), requires that in criminal cases except cases punishable by death and where not otherwise provided in the new traffic arrest bond law, the sheriff must accept bail for those persons jailed at times other than normal working hours, provided proper bail has been set as provided by law. The Attorney General has had under consideration your letter of February 7, 1969, wherein you ask: "This is to request your opinion concerning the following question, to-wit: In criminal cases, where not otherwise provided in the new traffic arrest bond law, is a Sheriff required to accept bail for those persons jailed at times other than the normal working hours of the Courts?" Title 22 O.S. 1101 [22-1101] (1961), provides as follows: "Bail, by sufficient sureties, shall be admitted upon all arrests in criminal cases where the offense is not punishable by death and in such cases it may be taken by any of the persons or courts authorized by law to arrest or imprison offenders, or by the clerk of the district court or his deputy, or by the judge of such courts." (Emphasis added) Although we find no Oklahoma cases on this point, the majority view of other jurisdictions seems to be exemplified by Board of County Com'rs of County of Fremont v. State, Wyo., 369 P.2d 537, wherein the Court stated in the body of its opinion: ". . . in view of the rule stated in People ex rel. Brokaw v. Commissioners of Highways, 130 Ill. 482, 22 N.E. 596,598, 6 L.R A. 161, and approved by this court in Burnham Hotel Co. v. City of Cheyenne, 30 Wyo. 458, 222 P. 1: "'* * * The word "may" in a statute will be construed to mean "shall" whenever the rights of the public or of third persons depends upon the exercise of the power of the performance of the duty to which it refers, and such is its meaning in all cases where the public interests and rights are concerned, or a public duty is imposed upon public officers, and the public or third persons have a claim de jure that the power shall be exercised. * * *' " The word "may" used in Section 1101, supra, shall be construed as granting authority to "take bail" and is mandatory on the designated public officers since the right of the one arrested is dependent upon the exercise of this authority. It is therefore the opinion of the Attorney General that in criminal cases except cases punishable by death and where not otherwise provided in the new traffic arrest bond law, a sheriff is required to accept bail, under the terms of 22 O.S. 1101 [22-1101] (1961), for those persons jailed at times other than the normal working hours of the Courts. provided proper bail has been set as provided by law. (Dale F. Crowder)
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