Ex parte Wheeler

Kirby, J., (after stating the facts.) The petitioner for the writ of habeas corpus was entitled to a release from custody •pending his appeal to the circuit court from the judgment of conviction in the police court upon making a bond with sufficient sureties in 'the sum fixed by the police court when his appeal was granted. The city had authority under section 5632 of Kirby’s Digest to provide for the stay of proceedings on judgment of conviction in its police court pending an examination into same by the circuit court on appeal, being required only to make such terms reasonable. Said ordinance was passed by the city regulating the taking of bail and providing that only the chief of police should take bail after arrest and before trial and pending appeal to the circuit court and holding him officially responsible for the sufficiency of bail. This ordinance is not unreasonable, and is within the authority granted to the city by the aforesaid law, and was intended to and does limit the taking of bail to one officer of the city, the chief of police. The police judge having admitted the prisoner to bail pending the appeal and fixed the amount of the bond, it became the duty of the chief of police under said ordinance to take the bail and pass upon the sufficiency of it, since he is held officially liable therefor by the terms of said ordinance, and, having passed upon it and decided that it was insufficient, he had the right to refuse to accept it for the release of the prisoner. It may be true that the police court, having jurisdiction of the offense and the right to admit the prisoner to bail and prescribe the terms therefor, could also review the act of the chief of police if he arbitrarily and without right refused to accept a sufficient bond that was tendered him for the prisoner’s release, but the discretion as to the acceptance and sufficiency of the bond in the first instance rested with the chief of police; and, until he was shown to have abused it, the police judge was without authority to control his action in the matter. There is no proof of an arbitrary refusal to take bail in this case, and the return of the officer recites that the bail bond tendered was insufficient and worthless, and not accepted by him on that account, and there is no proof in the record to the contrary. This being the condition, the chancellor should have refused to release the prisoner from custody upon the said insufficient bail bond dedared to be so by the officer in whom was vested the authority to pass upon its sufficiency, and, notwithstanding same had been approved by the police court, instead of directing his release as he did do, his judgment was erroneous, and will be quashed.