No. 13735 IN THE SUPREME COURT OF THE STATE OF MONTANA

WILSHIRE INSURANCE COIqTANY a California Corporation, and GENE STREITZ, Petitioners and Respondents, and Cross-Appellant,

JANICE S. CARRINGTON, Justice of the Peace, Missoula County, Montana, Respondent and Appellant.
Appeal from: District Court of the Fourth Judicial District, Honorable Edward Dussault,Judge presidinq. Counsel of Record: For Appellant: Robert L. Deschamps 111, argued, County Attorney,

Missoula, Montana For Respondents: Skelton and Knight, Missoula, Montana Robert Skleton argued, Missoula, Montana

Submitted: October 3, 1977 Decided:

### OCT24

## 19iQMr. Justice John Conway Harrison delivered the Opinion of the Court: Petitioners, Wilshire Insurance Company (Wilshire) and Gene Streitz, respondents herein, brought an action for
a 

### writof mandamus seeking to require appellantMissoula County Justice of the Peace Janice S. Carrington, to accept respondents' bailbonds. Following a hearing the district, Missoula County, granted the requested writand inaddition awarded $175 in damages and attorney fees of 

### $500 torespondents. Appellant thereafter moved for an amendment of judgment seeking tohave the award of damages and attorney fees deleted. The court amended thejudgment by deleting the award of attorney fees only. Appellant appeals from the amended judgment. ~espondents' crossappeal from that portion of the court's order denying attorney fees has been abandoned on this appeal. Wilshire 

### is a California Corporation authorized by the Montana StateCommissioner of Insurance to do business in Montana as a commercial surety. Streitz 

### is a licensed agent of Wilshire. They have provided bailbonds for criminal defendants inthe court of Justice Carrington for some time. On atleast one occasion prior to the present case, respondents
were directed inwriting topay over a bond immediately upon the bonded defendant's failure to appear, and were advised it
was Justice Carrington's policy that thisbe done in future
cases.On December 

### 8, 1976, respondents suppliedbailbonds inthe amount of $2000 on each of two criminal defendants. Before bonding out of jail, defendants were notified by the sheriff to appear on the morning of December 9, 1976. Defendants failed to appear. Justice Carrington immediately entered an order forfeiting the bonds and orally notified respondents the bonds were immediately due and payable. Respondents advised the money would be paid by 4:00 p.m.
on December 10. However, no payment was made. Thereafter, Justice Carrington and WilliamMonger, Missoula County Justice of the Peace, Division 2, entered orders directing the sheriff toaccept no furtherbonds from respondents. Streitz received no written notice of the forfeiture untilDecember 13. Later that day, he unsuccessfully attempted toobtain Justice Carrington'

### s approval for two additional bonds, thereby failing to collect atleast $175 inbonding fees. This action filed on December 14ensued. Respondents have not yet paid the $4000 in forfeited bonds. The issues presented on this appeal are: 

### 1. May a Montana justice of the peace court order that forfeited suretybonds be paid immediately? 

### 2. May such court refuse toaccept furtherbonds from
a surety until 

### itspreviously forfeitedbonds arepaid? Issue 

### 1. Immediate payment upon forfeiture. The exclusive procedure tobe followed upon a failure of an accused toappear in court or otherwise comply with the conditions of thebailbond isprescribed by sections 95-1116 and 95-1117, R.C.M. 1947:"95-1116. Conditions of bail

# - when performed 

# - when not performed.
"(b) If the accused does not comply with the conditions of the bailbond, the court having jurisdiction shall enter an order declaring the bail tobe forfeited. "If such forfeiture 

### is declaredby a district court, notice of such order of forfeiture shallbe mailed forthwith by the clerk of the court to the accused and his sureties attheir lastknown address. "(c) If atany time within thirty 

### (30) days after the forfeiture the defendant or his bail appear and satisfactorily excuse his negligence or failure tocomply with the conditions of the bail, the court, in 

### its discretion, may direct the forfeiture of the bail tobe discharged upon such terms asmay be just. "If such forfeiture 

### is declared by a district court and if the forfeiture 

### isnot discharged as provided in this section, the court shall enterjudgment for the stateagainst the accused and his sureties for the amount of the bail and the costs of the proceedings. 11 "95-1117. Disposition of judgment and execution.
"(c) When judgment 

### is entered infavor of the 

### state and against the sureties or the surety company orwhen the forfeiturehas not been discharged, execution may be issued against che sureties or the surety company in the same manner asexecutions in civil actions.It Appellant takes the position the statutory scheme 

### is of dual application. That 

### is, the statutes distinguishbetween district courts and other courts, such asjustice courts, holding the former to a stricter standard of written notification of forfeiture and a thirty day "waiting period" duringwhich the forfeiture may be discharged, prior to automatic entry of judgment and an ensuing execution. Justice courts, she argues,
are subject tono such restrictions, and need only enter an order 

### of forfeitureupon noncompliance as a precondition to immediate payment of the face amount of the bond. We find such a position untenable..I ' We hold statutoryprocedures detailed in sections %-I116 and 95-1117 are equally applicable tobond forfeitureproceedings in 3ustice courts. An order requiring imrnediak payment on the forfeited bond is tantamount to an immediate and automatic judgment not provided forby statute. Such a procedure would affordjustice courts broad powers and an unlimited range of discretionnot enjoyed by district courts. We note inthis regard that district courts, ascontrasted with justice courts,
are courts of record staffedby judges professionally trained in the practice and principles of law and legalprocedure. Such judges are, by virtue of sections 95-1116 and 95-1117, held to
a standard of accountability. Such a standard 

### isno less 'applicable tojustice courts. Referring tovarious principles and statutes pertaining to contract law, appellant maintains a suretybond 

### is in the nature of a contract. Contractual terms, if capable of being performed instantly, must be so performed. While a bond is in the nature of a contract, a procedure for forfeiture and enforcement mandated by statute 

### isexclusive and must be followed. See: 

### 8 Am 

### Jr 2d Bail and Recognizance, 

### 55 139, et.seq. Appellant's argument in this regard 

### iswithout merit. Finally, appellant offers policy reasons in support of her position. She argues the traditional procedure whereby defendants charged with minor offenses typically forfeitbonds in justice court, in lieuof an appearance, would be frustrated and substantial delay in the administration of justice would result from imposition of the requirements of sections 95-1116 and 95-1117. This argument 

### isnot compelling. The Revised Commission Comment to section 95-1103, R.C.M. 1947, indicates the procedure for determination, acceptance and forfeiture ofbail for certain minor offenses is tobe distinguished from the forfeiture procedures outlined in sections 95-1116 and 95-1117. The usually speedy forfeiture procedure advocated by appellant 

### is inno manner impaired by our holding in this
case.Issue 2. Refusal to accept further bonds. Relying primarily upon broad textual authority, appellant asserts ajustice court has the discretion to refuse a surety's tendered bonds, although that surety 

### is authorized to do business by the statecommissioner of insurance and has in allother respects complied with statutesregulating the bail bond busine

### ss

# . Article 

### 11, Section 21, 1972 Montana Constitution specifically provides: "All persons shallbe bailableby sufficient sureties except for capital offenses, when the proof 

### is evident or the presumption great.1' (Emphasis added.) Inaddition, section 40-4501, R.C.M. 1947, provides, in part: "A surety insurer authorized as such under this

code shallhave the power tob-ecome the surety on bonds and undertakings required by law

# * * *.I1 (Emphasis added.) We hold that the above provisions, taken separately or together, mandate approval by courts of allbonds offeredby those commercial suretiesproperly authorized to do business inthis state. Here, it isnot disputed that respondents were incompliance with the pertinent provisions of law and were authorized to do business ascommercial sureties in the state of Montana. We conclude appellant's refusal to accept respondents' bondswas error. Suchbonds should be approved in allsimilar
cases. The amended judgment granting respondents

## ' requested writ of mandate isaffirmed.

1 \'. ~h17f Justice