#### In re Berman. In re Krause.

(Nos. 21482 and 21484

— Decided April 16, 1949.)

*412*Messrs. Land é Land, Mr. W. J. Martindale*and *Miss Elsie Tarcai,*for petitioners.

*Mr. Frank T. Gullitan,*prosecuting attorney, and *Mr. Saul S. Danaceau,*for respondent.

Hurd, J.

These are original actions in habeas corpus filed in this court. The petitioners represent that they are being restrained of their liberty by the sheriff of Cuyahoga county, Ohio, at the jail of such county; and that such restraint and imprisonment is contrary to law and without due process.

In substance, the affidavits supporting the applications for the writs set forth that the parties were taken into custody by the sheriff at approximately two p. m. on April 14,1949; that they were arrested under a writ of body attachment issued to the sheriff by a judge of the Court of Common Pleas; that, thereafter, applications were made to the Court of Common Pleas to allow and fix bail pending the appearance of the parties for trial; that they were advised by the court that their “arrest would be treated the same as the others”; “that the treatment accorded in the other arrests was a failure to grant or deny bail”; that thereupon they requested an immediate or forthwith hearing on the merits of the charges; and that they were advised by the court that it was not possible to accord such hearing before April 19, 1949, of the following week.

In the case of In re Berman, No. 21482 (second arrest), application for a writ of habeas corpus was first filed within approximately two hours after the arrest of the petitioner. Upon hearing at that time (Thursday, April 14, 1949), there was not a sufficient showing that the petitioner would not be allowed bail or granted a hearing forthwith, and, therefore the application at that time was denied. However, upon ap*413plication for a rehearing two days later, to wit, on April 16,1949, the evidence disclosed that the petitioner was still confined in jail without bail and without prospect of trial until Tuesday of the following week, it appearing further that the trial court had refused to fix bond on application therefor. Thereupon this court vacated the journal entry refusing the writ and granted a rehearing upon the original application which had been filed on April 14, 1949.

Upon hearing in In re Krause and In re Berman on April 16, 1949, the evidence clearly showed that the allegations contained in the affidavits filed in support of the petitioners were true; and that both petitioners had been held in close custody in the county jail continuously from two or two-thirty p. m. of April 14, 1949. It appeared further that the petitioners had been arrested upon body attachments issued *sua sponte by the trial court,*based upon citations for contempt of court on account of certain letters addressed to the trial court in relation to the case of *Fawick Airflex, Inc.,*v. *United Electrical, Radio & Machine Workers of America Local No. 735,*affiliated with the' Congress of Industrial Organizations, District No. 7, the case having had its genesis in a labor dispute or strike in progress at the plant of the plaintiff in such case.1

*We are not here dealing with the question of the guilt or innocence of the accused.*That is for the trial *414court to determine upon trial on the issues made in the pleadings before that court. We are here dealing with basic fundamental constitutional rights. The sole question before this court for determination on these hearings in habeas corpus is, *Do the accused have a right to bail pending trial?*

Section 9, Article I of the Constitution of Ohio, provides :

> “All persons shall be bailable by sufficient sureties, except for capital offenses where the proof is evident, or the presumption great. Excessive bail shall not be required; nor excessive fines imposed * *

A capital offense is one punishable by death. Where the proof is evident, or the presumption great, persons accused of such an offense are not entitled to bail. Persons accused of all other crimes shall be bailable. This provision of the Constitution applies to charges for contempt of court as well as to other offenses against the peace and dignity of the state.

The dignity of our courts must be maintained and the judicial process must be respected at all times and by all persons. A strong and independent judiciary is the bulwark of our liberties. But, no matter how much a court, or a judge thereof, may feel aggrieved by the conduct of persons suspected of or charged with contempt of court, such an offense is not a capital offense and is bailable under the state and federal constitutions. To deny bail before trial, except in capital offenses, is a violation of a sacred basic human right guaranteed by the Constitution of the United States and the Constitution of Ohio. This constitutional right transcends all other considerations of whatever kind or nature.

Section 9, Article I, of the federal Constitution and Section 8, Article I of the Ohio Constitution, provide that the privilege of the writ of habeas corpus shall *415not be suspended, unless, in cases of rebellion or invasion, tbe public safety requires it. Section 6, Article IV of the Obio Constitution, provides tbat tbe Court of Appeals shall bave original jurisdiction in habeas corpus. Therefore, there can be no doubt of tbe jurisdiction of this court to bear and grant relief in a case such as this, where tbe evidence clearly shows tbat tbe trial court has refused to allow bail or to grant a trial forthwith.

Tbe Supreme Court of Obio approved this procedure and defined tbe constitutional right in tbe case of *State*v. *Bevacqua,*147 Ohio St., 20, 67 N. E. (2d), 786. Tbe pertinent part of tbe syllabus is as follows:

> “* s * but tbe constitutional right of nonexcessive bail in bailable offenses may be fully protected by suing out a writ of habeas corpus in a court of competent jurisdiction. ’ ’

In tbe opinion, tbe court said:

> “Persons charged with crime bave a constitutional right to bail except in ‘capital offenses where tbe proof is evident or the presumption great.’ Section 9, Article I, Constitution of Ohio. That section further provides tbat ‘excessive bail shall not be required.’ *Keeping an accused in jail by excessive bail is as much a denial of his constitutional rights as refusing to fix bail.*

> “To fully protect tbe rights of a person charged with a bailable offense, it is necessary to give him immediate relief against an order refusing to reduce excessive bail, so tbat be may not languish in jail. * * *

> “There is a remedy, however, tbat is prompt and effectual. Tbe accused may, upon refusal of a court to reduce tbe bail fixed, *sue out a writ of habeas corpus in a court of competent jurisdiction where bail may immediately be given pending hearing** * *. Upon this question tbe authorities are practically unanimous. *416The rationale of the doctrine is well set forth in the cases of *Jones*v. *State,*146 Miss., 819, 112 So., 170, and *In re Stegman,*112 N. J. Eq., 72, 163 A., 422.” (Emphasis supplied.)

Section 12139, General Code, dealing with contempt of court, provides in part:

> “Upon the return of a writ, *tvhen it is not convenient to hear the charge without delay, the court shall fix the amount of a bond to be given, with surety*to the satisfaction of the clerk, for the appearance of the accused to answer the charge.” (Emphasis supplied.)

The members of this court are unanimously of the opinion that the mailing of a letter, the writing thereof not being done in the presence of the court, comes within the purview of the foregoing section of the General Code, and that, therefore, upon return of the writ, when it was not convenient to hear the parties without delay, it was mandatory upon the trial court to fix the amount of the bond for the' appearance of the accused at the time set for trial. The bond in such case is definitely not for purposes of punishment but rather to insure the appearance of the accused for trial at the time set.

Upon the hearing, some argument was advanced that these cases should be governed by Section 12136, General Code, which reads as follows:

> “A court, or judge at chambers, summarily may punish a person guilty of misbehavior in the presence of or so near the court or judge as to obstruct the administration of justice.”

As before stated, we are of the opinion that the instant cases do not come within the purview of the foregoing section. However, it is our further view that, if these actions should be governed by such section, it would be the duty of the court none the less to *417fix bail if it did not proceed summarily to punish the person found guilty. Failure of the court to punish summarily would not justify the commitment of the accused for trial at some later date, without fixing bond for appearance. The constitutional guaranties must still prevail.

Courts are not vested with powers of arbitrary conduct. There are, however, cases in which a judge may exercise that power which is known as judicial discretion. This power of judicial discretion, however, does not give the right to a judge to refuse the guaranties of the Constitution to persons who appear as litigants before him. These constitutional rights extend to *all persons*regardless of their political, business, religious or social affiliations.

The provisions contained in the bill of rights of the federal and Ohio constitutions, respectively, defining the fundamental rights of all persons to equality of justice, freedom of religion, speech, press and assembly, privacy of the home, trial by jury in criminal cases and bail before trial (except in capital cases), and the guaranties against cruel and unusual punishment and excessive bail, *are self-executing and require no legislative or statutory authority*to support or implement them.

In the instant cases the evidence is clear that there has been neither trial, summary punishment or bail. Therefore, it is our opinion that until such time as trial is had, the accused are clearly entitled to reasonable bail as guaranteed by the federal and state constitutions.

As we hold these views, the petitioners are discharged from custody forthwith, conditioned upon the petitioners giving bond with sureties to the satisfaction of the clerk of court in the sum of $500 each for *418the appearance of the accused to answer the charges against them.

*Judgments accordingly.*

Doyle and Hunsicker, JJ., concur in the judgment and opinion.

Doyle and Hunsicker, JJ., of the Ninth Appellate District, sitting by designation in the Eighth Appellate District.

1

Other cases coming before this court, and growing out of the same case, in which applications for writs of habeas corpus were allowed, when the trial judge refused or failed to set bail on apapplieation or grant trial forthwith, are as follows: April 13, 1949, No. 21476, In re Kress; No. 21477, In re Kreitner; No. 21478, In re Evans; No. 21479, In re Berman (first arrest, writs allowed by Skeel, J., acting presiding judge, Hurd, J., and Guernsey, J., of the Third Appellate District, sitting by designation in the Eighth Appellate District); April 14, 1949, No. 12480, In re Barnett; No. 21481. In re McCurdy (Skeel, J., acting presiding judge, and Hurd, J., writs allowed).