Mozorosky v. Hurlburt

BEAN, J. We are not concerned in the consideration of this application with the merits of the case. It is' contended upon the part of plaintiff that his arrest is covered by none of the provisions of Section 259, Or. L., and that the Constitution of Oregon, Section 19, provides that there should be no impris — 277 — onment for debt, except in case of fraud or absconding- debtors. It is asserted by counsel that there is no provision in our Code for admitting the plaintiff to bail upon an appeal in a habeas corpus proceeding, and we infer this was the reason he was not allowed bail by the trial court. Article I, Section 14, of our Constitution provides thus: “Bail. Offenses, except murder and treason, shall be bailable by sufficient sureties. Murder or treason shall not be bailable when the proof is evident or the presumption strong.” It is said in 3 R. C. L., page 5, Section 2; “In many particulars the rules relating- to criminal and civil bail are the same. In either case the principal is considered as being released from the custody of the law and placed in the custody of keepers of his own selection. But a distinction exists in a number of instances due to the different purpose inherent in the two modes of procedure. The object of bail in civil cases is either directly or indirectly to secure the payment of a debt or other civil duty; while the object of bail in criminal cases is to secure the appearance of the principal before the court, for the purposes of public justice. Payment by the bail in a civil case discharges the obligation of the principal to his creditor, and is only required to the extent of that obligation, whatever may be the penalty of the bond or recognizance; while payment by the bail in criminal cases, though it discharges the bail, does not discharge the obligation of the principal to appear in court; that obligation still remains. While the subjects of civil and criminal bail are not here treated separately, the distinction between the rules governing the two species of bail, where material, is pointed out.” 1,2. At common law and under modem statutes, the sheriff has the right to take bail for the appearance of prisoners arrested in mesne process in civil — 278 — actions. It is stated as a general rule that all judicial officers having the power to hear and determine eases have -the power to take bail, it is undoubtedly a necessary incident to the right to hear and determine a cause: 3 R. C. L., p. 21, §22; Vanderfort v. Brand, 126 Ga. 67 (54 S. E. 822, 9 Ann. Cas. 617 and note); Ex parte Alexander, 59 Mo. 598 (21 Am. Rep. 393). 3. The power to fix bail has always been regarded as a judicial one, and in its nature essentially belonging to courts. The principle of fixing the amount of bail addresses itself exclusively to the judicial discretion and sense of the court, or magistrate empowered to fix the amount. The matter óf hail on appeal in habeas corpus proceedings is not specifically provided for in our statute. To include in our Code all such particulars would make the volumes too cumbersome. Our Constitution and statute are plain in regard to bail in criminal cases, and it would seem that the lawmakers deemed such provisions a sufficient declaration of • the principle, that one should not he deprived of freedom, except in the case of the grave crimes mentioned, until final adjudication authorizing and compelling such penalty. It would seem that the -greater would include the less in this particular. It is an inherent right in every person that they shall not be restrained of their liberty except by due course of law. To deny bail to the plaintiff might in the end practically deprive him of the privilege of an appeal in the habeas corpus proceeding. This right of appeal is not questioned. The matter of bail on appeal in habeas corpus proceedings, arising out of imprisonment on civil process was in question in the case of Syverson v. Foster, — 279 — 84 Wash. 58 (146 Pac. 169, L. R. A. 1915E, 340). The court there declared thus: “One appealing from an order refusing to vacate a body execution upon the ground that it violates the constitutional provision against imprisonment for debt is entitled to be admitted to bail pending the appeal (on habeas corpus).” 4. In a note to the latter case in L. R. A. 1915E, 340, it is stated to the purport that a man’s right to his liberty, pending an appeal from a judgment upon which a body execution has been issued, should be at least as sacred as his right to his liberty pending an appeal from a conviction on a criminal charge seems axiomatic. “Bail in civil cases before trial of the cause was known to the common-law (2 Pollock & M. History of English Law, p. 592), likewise the writ of habeas corpus (p. 593).” The general rule is, that it is within the sound discretion of the court to refuse or to admit the defendant to bail after conviction and pending appeal, unless the discretion is taken from the court by statute. See note to Re Schrieber, 37 L. R. A. (N. S.) 693. In Wright v. Hinkle, 190 U. S. 40 (47 L. Ed. 948, at page 956, 23 Sup. Ct. Rep. 787), the Supreme Court of the United States recognized the existence of the inherent power in courts to admit to bail in civil cases, pending upon appeal. It is there said at page 63: “We are unwilling to hold that the Circuit Courts possess no power in respect to admitting to bail other than as specifically vested by statute, or that, while bail should not ordinarily be granted in cases of foreign extradition, those courts may not in any case, and whatever the special circumstances, extend that relief.” — 280 — 5. In passing upon this question, we again assert that we do- not take into consideration, or desire to have any expression herein influence, the merits of this case. The writ of habeas corpus is an appropriate and proper remedy in aid of bail. In view of the condition of the docket in this court, we consider it essential to a fair administration of justice, and in conformity to the spirit if not the letter of our Constitution and laws, that the plaintiff should be admitted to bail until the question of whether or not he can be legally incarcerated for the debt upon which the judgment was obtained by Swire is finally determined. The cases cited and those which we have been able to find, although they are not numerous, indicate that in a civil proceeding an appellate court is not narrowly restricted by forms or procedure. In Ledford v. Emerson, 143 N. C. 527 (55 S. E. 969, 10 L. R. A. (N. S.) 362), the syllabus reads: “An appellate court may treat a habeas corpus proceeding to secure the release of one in custody under a body execution as a motion to recall the execution and discharge the defendant, a decision upon which would be appealable.” See also United States v. Griswold, 11 Fed. 307, 310, and Taylor v. Fleckenstein, 30 Fed. 99. We notice the mode of procedure in criminal cases prescribed in Section 1640, Or. L., as something of a guide. This section reads thus: “After an indictment found, and upon an appeal, a defendant cannot be admitted to bail except by the court or judge thereof where the action is pending, or in which the judgment appealed from is given.” Plaintiff should be allowed to give bail in the sum of $2,000, and to go at large upon executing a writ — 281 — ten bond under seal in favor of tbe defendant sheriff with good and sufficient sureties, qualified as for bail upon arrest, to be approved by the Circuit Court or judge thereof and filed in that court, conditioned that if his imprisonment on execution be adjudged to be lawful upon the appeal, he will surrender himself to the custody of the sheriff of Multnomah County for continuance of such imprisonment, or pay the judgment upon which the execution was issued in the case of Sol Swire v. Jas. Mozorosky, but not exceeding the sum of $2,000. It is so ordered. Petition Allowed.