CHARLESTON.

#### State *ex rel.*Robert Garbutt *v.*Irvin Charnock, *Clerk, etc. et al.*

(No. 6179)

Submitted January 11, 1928.

Decided January 17, 1928.

1. *Bail*— That *Residence and Property of Proposed Bail Sureties Are in Another County is no- Reason for Rejecting Them, (Const, art. 3,*§ *5; Code, c. 156).*

The fact that sureties, tendered as such for bail in a criminal case, do not reside in the county where the prosecu-*9ti on is conducted and the property owned by them is in the county of their residence, is not a substantial reason for rejecting' them on the recognizance, if they be otherwise qualified, (p. 11.)

(Bail, 6 C. J. § 262.)

2. *Same*— That *Realty of Sureties Offered as Bail is Subject to Liens Does Not Justify' Their Rejection, Where Their Equities Financially Qualify Them (Const, art. 3,*§ *5; Code, c. 156).*

Nor does the fact that the real property of such sureties is encumbered by liens justify their rejection on the recognizance, where it clearly appears and is not denied that their equities in the properties make them amply financially qualified to discharge the obligation, (p. 13.)

(Bail, 6 C. J. § 262Í.)

3. *Mandamus*— Mandamus *Lies to Compel Acceptance of Sureties on Bail Bond Qualified by Equities in Realty.*

Where the court has granted bail to a prisoner and fixed the amount of the obligation and directed the recognizance or bond to be taken or executed before the clerk of the court, and it appears that the clerk has refused to accept sureties tendered on’the sole ground that liens exist against the real estate owned by the sureties which admittedly do not render them financially disqualified to discharge the penal sum fixed by the court, mandamus will lie to compel their acceptance as such sureties, (p. 14.)

(Mandamus, 38 C. J. § 123 [Anno].)

(Noth : Parenthetical references by Editors, C. J. — Cyc. Not part of syllabi.)

Original proceeding by the State, on the relation of Robert Garbutt, for mandamus to be directed to Iryin Charnoek, Clerk of the Circuit Court of Brooke County.

*Writ awarded.*

*Jay T. McCamio,*for relator.

*R. L. Ramsay,*for respondents.

Lively, Judge:

The object of this mandamus proceeding is to compel respondent Charnoek,- clerk of the circuit court of Brooke county, to accept James Russell and George Steers as sureties on a recognizance, tendered him by relator in accordance with *10an order of tbe circuit court granting relator bail, fixing tbe amount thereof at '$1500.00, and directing that tbe recognizance be executed before tbe court, or before tbe clerk of tbe circuit court.

Relator, Bobert Garbutt, was indicted at tbe November, 1927, term of court for tbe crime of attempt to commit rape; and at that term appeared in person 'and by counsel and demurred to tbe indictment. The demurrer was overruled, and an order entered permitting Garbutt to give bail in tbe sum of $1500.00, either before tbe court, or before tbe clerk of tbe circuit court, respondent Charnock. On November 14, 1927, relator appeared before tbe clerk and offered James Bussell and George Steers, residents of Ohio county as sureties. Bussell was tbe owner in fee of a lot of land in Ohio county assessed for taxes at $1500.00, with an encumbrance thereon of $1400.00; and Steers showed bis ownership of a lot of land in Ohio county assessed for taxes at $4100.00, with an encumbrance thereon of $1500.00; and another vacant lot valued at $750.00 without encumbrance. He swears that bis personal property is of greater value than $1500.00. There appears to have been no objection to tbe form, or condition of tbe recognizance as required by tbe clerk. Tbe clerk refused to accept tbe sureties for tbe reason then given, that tbe prosecuting attorney bad directed him to accept no surety on such bonds whose real estate was encumbered. On November 19, 1927, the objection of tbe prosecuting .attorney to accepting tbe sureties tendered, namely, that there were encumbrances against tbe real estate owned, by them as above set out, was submitted to tbe court, and tbe judge said be would not overrule tbe objection of tbe prosecuting attorney as that officer was charged with tbe administration of such matters and that be would take tbe view;s of tbe prosecuting attorney as to tbe sufficiency of a bond if be raised any question about it. On December 12, 1917, this alternative writ was issued against tbe clerk and prosecuting attorney and served on December 17th. It appears from an exhibit filed with the return that on January 4, 1928, Garbutt, relator, was brought into court, bis counsel, J. T. MeCamic, being absent, and without notice, an attorney was appointed to represent him, where*11upon, tbe prosecuting attorney moved tbe court to enter, and tbe court did enter a *nunc pro hone*order as of November 9, 1927, wbicb recited tbat counsel for plaintiff bad offered Bus-sell and Steers as sureties on the recognizance of tbe accused, and it was then decided by tbe court tbat tbe offered sureties were insufficient and remanded tbe prisoner to jail until a sufficient bond be given.

Tbe return of tbe clerk does not deny tbe allegation in tbe petition supported by affidavits tbat tbe sureties tendered are worth over and above tbeir liabilities tbe sum of $8,000.00, but bases bis refusal to take recognizance on tbe ground tbat be does not bave .tbe consent of tbe judge of tbe court and prosecuting attorney, .and exhibits tbe *nunc pro tunc*order in justification of bis refusal. By so doing tbe clerk has' adopted tbe objection of tbe prosecuting attorney, approved by tbe judge, wbicb is tbat sureties tendered must own real estate clear of encumbrances. Is tbe refusal based on a substantial reason, or is tbat reason unsound, flimsy, arbitrary and capricious? Tbe record clearly raises this issue.

While tbe petition makes tbe prosecuting attorney a party respondent, tbe prayer is tbat an alternative writ be awarded relator against tbe clerk alone, commanding him to accept tbe sureties on tbe recognizance. There appears to be no relief sought against tbe prosecuting attorney. Tbe return of tbe prosecuting attorney is practically tbe same as tbat of the clerk.

Both respondents interpose a motion to quash tbe petition and writ on tbe grounds, (1) tbat tbe sureties tendered live in Ohio county and not in Brooke county, and tbeir real estate • is also in Ohio county, and hence no suit or action could be maintained in Brooke county, and tbe state would be required to go into tbe former county to enforce tbe obligation, in case tbe recognizance was forfeited; and (2) tbat tbe granting or refusing bail is judicial in its nature and cannot be reviewed by mandamus. Tbe object of bail in criminal cases is to secure tbe appearance of tbe accused before tbe court at a time designated for tbe purposes of public justice.' At common law, bail was allowed in all oases in the discretion of *12the court. The policy of our government is to admit to bail persons charged with crime. Section 5, Article 3, Constitution, and Chap. 156, Code. *Rabeas corpus*may be issued for the sole purpose of obtaining bail in a felony case. *Ex parte Hill,*51 W. Va. 536. Whether bail be granted lies within the sound discretion of the court. The objection interposed by the motion to quash, that the sureties tendered do not live in Brooke county and the real estate owned by them lies in another county is untenable. The inconvenience, if any, to which the state would be subject in case of forfeiture of the bail, does not militate against the right to bail nor the pecuniary qualifications of the sureties offered. On the recognizance required, the principal and sureties acknowledged themselves to be bound unto the state in the sum of $1500.00, to be respectively made and levied upon their goods and chattels, lands and tenements, upon default of the condition that the principal will appear at the time fixed and not depart without leave of the court. By this obligation the parties thereto submit themselves to the jurisdiction of the court; and upon failure to perform the condition a *scire facias*may be issued to be served in any county in the State where the sureties may be found. There is nothing in 'the statute or at common law which requires that the surety shall live in the county where the bail is given, or that he shall own property therein. 6 C. J. Sec. 262, p. 1011. Under such holding a surety company of unquestionable financial strength authorized to- do business in the State and to be surety on such bonds could not be accepted because not a resident of the county, or not the owner of property therein. On the other point interposed by the motion to- quash, namely, that the granting or refusing of bail is judicial and cannot be controlled by mandamus. We are in accord (possibly *habeas corpus*would be proper remedy), but the judicial action involved is in the question whether bail should be granted or refused. Before bail is granted there must be an action by the court judicial in its nature that the accused is entitled to ..bail under the crime charged, connected with all the facts and circumstances. But after the right to bail has been judicially determined and the amount fixed, (which must not be *13excessive under the constitution), the determination of the sufficiency of the sureties and taking of the acknowledgment are ministerial and not judicial. 3 R. C. L. sec. 23, p. 22. The court by its order had granted bail and fixed the amount. The taking of the recognizance by the clerk was purely ministerial. The basis on which the sureties were refused was not because they and their properties were claimed to be outside the jurisdiction of the court; but because their real estate was encumbered, and this brings us to the issue developed by the alternative writ and return thereto.

Were the sureties tendered pecuniarily able to fulfill the obligation? There is no question of their fitness otherwise. It is said that in determining their ability to respond to the penal amount of the obligation, the clerk has discretion which cannot be controlled by mandamus. It is quite true that the clerk exercises discretion in determining whether the sureties tendered are pecuniarily able to perform the obligation if the condition be not performed according to the tenor thereof, but that discretion is not arbitrary and absolute; it must be reasonably and soundly exercised, otherwise a clerk could always refuse to take unquestioned sureties, and successfully defend on the ground that he was exercising discretion which could not be questioned. The result would be as pernicious as where excessive and impossible bail was required. The meaning of discretion generally is sound discretion. “It must be governed by rule; it must not be arbitrary, vague and fanciful, but legal and regular.” *Rex*v. *Wilkes,*2 Burr. R. 25. See *Rose*v. *Brown,*11 W. Va. 142. But as we view the return the non-acceptance of the sureties is not based on lack of their financial ability to perform, for their equities in the properties owned by them are far in excess of the penal sum of the recognizance, (an averment supported by affidavits and not attempted to be denied); but because there are liens which would be first in priority in case of sale by the state in satisfaction of the recognizance; not that the penal sum could not be realized, but because the liens would have precedence in case of sale by the state.

This is not a sound reason on which rejection of the sureties can be based. It is fanciful and arbitrary. Fancied conven*14ience is made to defeat a legal right to liberty. Under such, a theory. a surety owning property worth a million dollars wpuld be refused because of a lien thereon however small and inconsequential. ,

. Under .the familiar principle that discretion in the performance .of a ministerial duty, where its exercise has been unsoundly and capriciously exercised will be controlled by man-damns, we have concluded to direct the peremptory writ as against .the clerk, and without costs. Se.e *State ex rel. Hoffman*v. *Town of Clendenin,*92 W. Va. 618, 29 A. L. R. 37; *State ex rel. Noyes*v. *Lane, Clerk, et al.,*89 W. Va. 744.

*Writ awarded.*