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a jury was not required; and in this case it clerk of a court to let to bail. Rev. St. was claimed that, as the prisoner was held Wyo. 88 32043220; Sess. Laws 1890–91, c. by the sheriff, that officer alone could ac

30. cept bail. In Vermont a clerk of a county 2. The information is assailed because it court issued a bench warrant upon an in- was verified upon the information and belief dictment in term time, returnable forthwith. of the prosecuting attorney, and not made This warrant was served in anotner county, upon probable cause, supported by oath or and the defendant was released in the coun- affirmation or affidavit, as required by the ty where it was issued, but rearrested upon constitution of Wyoming. Our constitution the second warrant issued by the clerk of provides that no warrant shall issue but upon said court in vacation, the court having ad- probable cause, supported by affidavit, etc. journed after the first warrant was issued. A number of cases have been cited, holding It was held that the statute conferred the that such a verification is insufficient under power to issue the warrant in term time provisions similar to that in our constitution. or vacation, as circumstances might require, In re Rule of Court, 3 Woods, 502; Swart without an express order from the judges V. Kimball, 43 Mich. 443, 5 N. W. Rep. 635; for the arrest of a person indicted, and for State v. Gleason, 32 Kan. 245, 4 Pac. Rep. his detention for trial at the next term of 363. Contra, U. S. v. Eldredge, (Utah) 13 court. The court say:

“If this seems to Pac. Rep. 673. It is not necessary to consider, invest clerks with quasi judicial power, it in this proceeding, whether or not the inis not a new feature attaching to the office. formation was insufficient on account of a At a very early day, certain of the clerks defective verification, or because the arrest of the court of chancery performed the du- of the defendant upon a warrant issued upties which are now devolvej upon masters on such information was illegal, as I do not in chancery. They were to the number of think the sureties had the right to raise twelve, distinguished from clerks under those questions for their principal. It was them by the name of “Masters in Chancery,' held by the supreme court of Kansas, in and were the assistants to the chancellor, State v. Gleason, supra, upon an exhaustive who referred to them interlocutory orders review of the authorities, that a verification for stating accounts, computing damages, upon hearsay and belief was not sufficient to and the like. In process of time, as business

authorize the issuance of a warrant for the increased, the clerk wbose duty it was to arrest of a party therein charged, when no keep the records, or, as formerly called, the previous preliminary examination, and no *rolls,' beca me distinguished as master of the waiver of the right of such examination, had rolls. 2 Bouv. Law Dict. p. 121. So our been had, and that a motion to set aside rules of court and statutes have long dis- the warrant should be sustained, as such a tinctly recognized the quasi judicial function verification was in violation of a section of in the clerk in various ways; notably in the the bill of rights in the constitution of the matter of assessment of damages and tax- state that no warrant shall be issued to seize ing of costs. The policy of legislation with any person but on probable cause, supported us has been constantly to enlarge the by oath or affirmation. But the same court, powers of clerks.” In re Durant, 60 Vt. at the same term, held that an information 176, 12 Atl. Rep. 650. That the clerk of a so verified was sufficient for every purpose, austrict court may perform, unuer our stat- except merely for the purpose of issuing a utes, quasi judicial functions, has never been warrant for the arrest of the defendant, and roubted. He may issue writs of attach- that the case of State v. Gleason was in went upon affidavits filed therefor, without harmony with such ruling. It seems to have submitting the same to a court or judge, been held in People v. Shaver, 4 Parker, rind, in vacation, without consulting a court Crim. R. 45, that it was a good defense to an or judge. Other duties of like character action on a recognizance that it was taken on have been imposed by statute upon the an illegal arrest of a prisoner for whom the clerk, for the convenience of suitors. If a defendant in that suit became bail, yet this sheriff or a single judge in the recess or va- seems to be against the current of authorication of his court may constitutionally fix ty. A recognizance is not voided by the the amount of the bail, and let to bail a mere fact that the indictment is defective, defendant in a criminal case, I do not see and liable to be quashed. Com. v. Skeggs, why this power could not be conferred upon 3 Bush, 19; Hester v. State, 15 Tex. App. a clerk of the district court. The object 418; Jones v. State, Id. 82; U. S. v. Reese, of the statute is humane. It is for the bene- 4 Sawy. 629; State V. Cocke, 37 Tex. 155; fit of the accused, as the court may not be Reeve v. State, 34 Ark. 610. So it has been in session, or the judge thereof may be ab- held that the sureties upon a recognizance sent, at the time of his application to be conditioned for the appearance of their prinlet to bail. Judicial power cannot be con- cipal at the next term of court to answer ferred upon a single judge out of his court, to a criminal charge cannot come into court, and at chambers, unless upon the theory and question the sufficiency of the indictment, that his court is kept open for such pur- , without producing the body of their principoses. Our statutes have long recognized pal. State v. Rhodius, 37 Tex. 165; Pack v. this power in a judge in vacation, and of a State, 23 Ark. 235; Williams V. State, 20 Ala. 63. In this last case cited the court , inal case, no objection can be taken to the nised the following language:

"The recogs

manner of the arrest. Peck v. State, 63 Ala nizors (except the accused) have no connec- 201; Stever v. Sornberger, 24 Wend. 275; tion with the indictment, and the question Manufacturing Co. v. West, 1 Cush. 388." of its regularity or irregularity, in this re- This decision further states that the du. spect, is wholly disconnected from their un- ress of the principal is not a cause of dertaking. They bind themselves that their defense by the sureties to a bail in a criminal principal shall appear and answer the charge case, because the law affords them no redress against him, and if he fail to do so the condi- against their principal upon payment of their tion is broken, and they become liable for recognizance, the recognizance being a prithe penalty." See U. S. v. Wallace, 46 Fed. mary undertaking on their part, and it not Rep. 569; Fleece v. State, 25 Ind. 384; Dil- being necessary that the prisoner should be ley v. State, (Idaho,) 29 Pac. Rep. 48, citing a party to it; citing Tillson v. State, 29 Kan. State v. Sutcliffe, (R. I.) 17 Atl. Rep. 920; 452; High. Bailm. p. 204; U. S. v. Ryder, Jones v. Gordon, (Ga.) 9 S. E. Rep. 782; Lee 110 U. S. 729, 4 Sup. Ct. Rep. 196; Huggins v. State, (Tex. App.) 8 S. W. Rep. 277; State v. People, 39 Ill. 241; Plummer v. People, v. Hendricks, (La.) 5 South Rep. 177; Brown 16 Ill. 358,-in which last case the test apv. People, 26 mil. 28; Mix v. People, Id. 32; plied by the court, where the principal pleadState y. Stout, 11 N. J. Law, 124. The sure- ed his duress in the execution of the bond, ties on a bail bond or a recognizance each was whether he would have been released become a pledge and manucaptor for the on habeas corpus at the time of executing principal on the bond or recognizance. They the bond. It seems that, where the sureties are not the judges of the propriety or util- have received the benefit of the duress of ity of the attendance of their principal at the principal, there has been a fundamental the court whither he is bound to appear. defect in the proceeding which led to the The law refers all such questions to the court arrest, that, in effect, renders it void, and wbere he is required to repair, and the court the bond taken null, as where the magistrate alone has the power to decide whether the taking the bond had no jurisdiction of the principal is bound to appear. An elaborate case, and hence no authority whatever. I review of the authorities upon this proposi- am of the opinion that even though the artion is found in the case of Littleton v. State, rest of the defendant could be held illegal, 40 Ark. 413. It was there asserted that the for the reason that the warrant issued for defendant, the principal on the recognizance, his arrest without probable cause, supported was illegally arrested in a certain county hy | by affidavit, as the information was verified the sheriff of another county, upon a war- upon information and belief, such a defense rant issued by a justice of the peace of the

cannot avail the sureties in this proceeding, other county, not in hot pursuit of the offend- and that any objection to the information, er, the statute probably restricting the au- either that it did not state an offense or thority to execute a process by a sheriff to was insufficiently verified, must be overruled. his county. The bond was taken, however, This might bave been waived by the accused, by the sheriff in his own county, while the if he had been on trial. The sureties are prisoner was in his custody, and while there considered as jailers of their principal, of was a charge pending against him for an his own choosing; and the object of the state offense cognizable before a magistrate who in requiring bail is not pecuniary compensaissued the warrant of arrest. The court say:

tion, but to compel the presence of the ac"Upon a trial for the offense under the cir- cused, to the end that justice may be admincumstances, or upon an application by the istered. Extraordinary remedies are providprisoner to be released from imprisonmented by the state for the surrender of the acupon habeas corpus, the courts refuse to in- cused by the sureties. As his pledgors, quire into the manner or circumstances of manucaptors, and jailers, they are bound to the arrest, even though it has been made by produce him in court, and they are considforce in a foreign jurisdiction." A number ered responsible for his appearance there. of cases are cited from different states in Exacting the penalty of the bond is the punsupport of this position, nearly all of which ishment for neglect of this duty on their were reviewed in the case of Kingen v. Kel- | part, not for any act of the accused. The ley, 3 Wyo. 566, 28 Pac. Rep. 36, where the relation of principal and surety between the same doctrine was announced. The Arkan- accused and his bail exists only in a qualisas court further say, in this connection: fied sense.

It has been held by the supreme "As the prisoner is entitled to discharge upon court of the United States that it is against bail in every case of misdemeanor, it is diffi- | public policy to aid the bail to relieve, themcult to see what greater right he has to have selves from the punishment meted out to the court inquire into the manner or place them for their neglect in failing to surrender of his arrest, after release, than he had be their principal to justice. U. 8. V. Ryder, fore. As it is a question in favor of liberty, supra. it would seem that the courts would more 3. It is shown by the exceptions, duly verfreadily inquire into the cause of his com- fied, that Krohne, the principal on the bond, plaint while the restraint is upon him. And had no preliminary examination previous to so it has been held that, after bail in a crim- the execution of the bond, and that he had not waived the right to such an examina- fore the magistrate is as effective to secure tion. The statute in force at the time of this end as the filing of an information in the execution of the bond and the institu- the district court. If the legislature can tion of these proceedings provided that “no make one such exception dispensing with information shall be filed against any per- preliminary examinations before the instituson for felony until such person shall have tion of proceedings by information in the had a preliminary examination therefor, as district court, why may it not constitutionprovided by law, before a justice of the ally make another? The presumption of inpeace, or other examining magistrate or nocence is as strong in favor of a fugitive officer, and shall have been held for trial by from justice as any other person accused of such court or officer, unless such person shall crime; and, so far as the harshness of the have waived his right to such examination: proceeding is concerned, it unquestionably provided, however, that informations may entails greater hardship upon one domiciled be filed without such examination against in another state, to arrest him and bring fugitives from justice, and in misdemeanor him to the complaining state without a precases not punishable by a justice of the liminary examination, than it would upon peace, or whenever the county and prosecut- one who was a resident of the same county ing attorney is satisfied that a crime or as the officer who issued the warrant or offense has been committed in his county." filed the information. No objection seems Section 7, c. 59, Sess. Laws 1890-91. With ever to have been made to the provision exthe exception of the last clauses of this sec- cepting fugitives from justice from the rule tion, it contains the provisions common to requiring preliminary examinations of the the statutes of such states as have adopted accused prior to filing the information by proceeding by information on the part of the the prosecuting officer. If this be conceded prosecuting attorney in lieu of, or as a con- to be constitutional and due process of law, current proceeding with, indictment against the conclusion is irresistible that the legispersons accused of criminal offenses. These lature may make any exception to the rule statutes have generally made the exception requiring the preliminary inquiry. The obto the rule requiring a preliminary examina- jectionable feature of the law was that it tion previous to the filing of an informa

provided that the information might be filed tion, in the cases of fugitives from justice, by the county and prosecuting attorney withand in misdemeanor cases cognizable before out such preliminary examination, when he a justice of the peace. Such exceptions “is satisfied that a crime or offense has been have not been assailed, and certainly have committed in his county," or in misdemeanor not been held a constitutional violation of cases not punishable by a justice of the the rights of the accused. The information

peace. This court condemned this first proreferred to in the act, doubtless, was intend- vision in the case of In re Wright, 3 Wyo. ed to mean an information in the district 478, 27 Pac. Rep. 565, although its validity court. In cases of fugitives from justice, was not before it, as a dangerous power to under the act of congress relating to their lodge in the hands of the prosecuting officer; extradition or requisition, the absconding ac- but it was there said that it was not inticused may be demanded and surrendered mated how the matter would be decided upon the production of a certified copy of when properly before us, but attention was the indictment, “or an affidavit made before called to it as a dangerous method of proa magistrate of the state or territory” char- cedure. We are of the opinion that this proging the person demanded with crime. Rev. vision of the statute was an extreme one, as St. U. S. § 5278. The accusation may be it gave insufficient protection to the accused; made upon affidavit before a justice of the

and it has been so regarded after a short peace, without filing an information or se

trial, as the legislature last in session elimcuring an indictment against the fugitive,

inated the objectionable clause from the secor without first having the preliminary ex

tion, and it is happily no longer a menace amination before the magistrate. It has

to the rights of the citizen. But a harsh or been the practice here, and doubtless in extreme law may not be an unconstitutional other jurisdictions, to secure fugitives from

If the rule were established that only justice upon the affidavit made before a such legislation should be held constitutional magistrate, and to hold the preliminary ex- as suited the peculiar views of judges, lawamination upon their return in custody of

yers, or a body of laymen, many solemn enthe officer. Why an exception should be actments would fall under the ban. It is made in such cases is not clear, as the fugi- the duty of a court to denounce as unconstitive may be apprehended and secured in the tutional only such statutes as are clearly first instance without any preliminary hear- and palpably violations of the fundamental Ing of the evidence against him, except such law. The objectionable clause might be as may be disclosed by the affidavit of accu- deemed, without investigation, to be unique; sation. It may be that it was considered permitting, as it did, a prosecuting officer, that the provision was deemed necessary without any authority, to conduct a judicial for secrecy and dispatch, in order to more inquiry-which would be of doubtful proeffectively prevent the escape of the fugi- priety, and of as doubtful constitutionality, if tive, but it seems that the affidavit filed be- conferred by statute (In re Ziebold, 23 Fed.

one.

Rep. 791)-by the examination of witnesses the crime may be prosecuted by informaunder oath, touching a criminal charge, be- tion, where the probable guilt of the acfore the accusation may be filed, without cused has been duly ascertained and certihearing any testimony under any of the fied by a previous preliminary examination. rules governing even an ex parte tribunal, After stating that such a previous inquiry like a grand jury. But we have found sim- had been had antecedent to the information, ilar statutes elsewhere, and they have been and detailing the steps required by the stateither upheld, or vigorously criticised, but ute of Colorado in such initial inquiry as to never denounced as unconstitutional.

the probable cause of the guilt of the acIn Indiana criminal prosecutions by in- cused by a magistrate, Elliott, J., says: formation of the prosecuting attorney, in- “Such are the safeguards for the protection cluding all offenses intermediate between of persons accused of crime, by the provithose within the original jurisdiction of jus- sions of the act under consideration. As tices of the peace and that of the grand all these requirements have been observed jury, is permitted by statute, and the in- in the petitioner's case, the objection that he formation is filed upon an affidavit lodged has been deprived of his liberty without with the clerk of a court of record for the due process of law is not, in our judgment, knowledge of the prosecuting attorney, or sustained. Whether an information filed in deposited with him. This statutory prac- a case where the accused had not been pre tice has been upheld by the courts of that viously bound over or committed upon a pre state, and is not considered of doubtful con- liminary examination should be regarded as stitutionality. See State v. Boswell, 104

due process of law is a question which need Ind. 541, 4 N. E. Rep. 675, where it was held not be determined, since the provisions of that the constitution authorized this meth- the statute applicable to the present conod, but that it could only be followed where troversy are distinct and separate from authorized by statute. In Missouri the con- those providing for information in other stitution provides for procedure by indict- cases." So it was held by the court in the ment in felonies, except in cases arising in case of In re Humason, 46 Fed. Rep. 388, the land or naval forces, or in the militia where the provisions of the statute of Washwhen in actual service in time of war or ington were before the United States dispublic danger, and that in all other cases trict court for the eastern district of that offenses shall be prosecuted by indictment or state. It provided for prosecution by ininformation, as concurrent remedies. The formation by the prosecuting attorney withmethod of procedure by information in Mis- out previous preliminary examination, and souri is similar to that in Indiana, and is is very broad. The court strongly intimat. regulated by statute. No preliminary ex- ed that such a practice was arbitrary and amination is necessary. The prosecuting at- despotic, and that arbitrary power in a sintorney proceeds upon the affidavit filed ei- gle individual to bring a citizen into court. ther with him, or the clerk of some court of and place him on trial for a crime, may be record. This statute has been upheld, and so contrary to the spirit of the fourteenth has never been questioned as unconstitu- amendment of the federal constitution as to tional. It has been held that the affidavit be considered obnoxious to the provisions alone is not sufficient where made by a pri- of that article, and it further remarks: vate person, but that the information must "This court will not affirm to the contrary be filed by the prosecuting attorney. State in the decision in this case. It is unnecv. Huddleston, 75 Mo. 667; State v. Sebec- essary to do so." It was held that as the ca, 76 Mo. 55; State v. Kelm, 79 Mo. 515; act gave power to the prosecuting attorney State v. Briscoe, 80 Mo. 613. The last two to file informations in cases in which percases cited bear upon the question here, and sons have been accused of crime before a the English common law relating to the committing magistrate, and admitted to bail practice by informations; and in State v. or held in custody while awaiting trial, and Kelm, in declaring that no private citizen that other statutes gave authority to mag. should be intrusted with the power to lodge istrates to hold such examinations,-just such an accusation upon his own affidavit, the proceedings as were held constitutional and court say: "The injustice and abuse of such valid in the leading case of Hurtado v. Peo process, left at the caprice, spite, or malice ple, 110 U. S. 516, 4 Sup. Ct. Rep. 111,-and of one not under the sanction of official the petitioner for the writ of habeas corpus duty, is apparent; and therefore the fram- not showing affirmatively that he was not ers of the constitution employed the term proceeded against under such provisions of 'information,' without more, well under- the act providing for preliminary inquiry bestanding its common-law import and mean- fore the information was lodged against ing. And we are not authorized, nor is him, the writ was denied. Although these the legislature, to extend its meaning and cases intimate very clearly that the courts use." In the case of In re Dolph, 28 Pac. have regarded with much dislike a proceed. Rep. 470, the supreme court of Colorado ing by information by a single official withheld that due process of law in a prosecu- out a previous judicial inquiry as to probation for felony does not necessarily include ble cause of guilt, as we did in the case of an indictment by a grand jury, and that In re Wright, supra, it has never been held,

In any case which we have found, after the not unconstitutional and void. We theremost diligent search, that such a provision, fore answer the questions reserved to us by however caustically it has been condemned the district court of Sheridan county as folas unwise or harsh, is obnoxious to the con- lows: First, the bail bond of Krohne is not stitutional guaranty that no person shall be void for any of the reasons charged in the deprived of life or liberty without due pro- exceptions of the sureties, and which have cess of law, or any other constitutional safe- been urged in this court; and, second, that guard erected for the protection of the citizen. the sureties are liable under said bond, and The matter was directly before the court in judgment should be rendered against them the case of Swart v. Kimball, 43 Mich. 443, 5 in this proceeding. The clerk of this court N. W. Rep. 635, where the act of 1857 pro- will transmit a certified copy of this opinvided for procedure by indictment or by in- ion to said court, with the order herein, and formation, without previous preliminary ex. it is directed to proceed to render judgment amination, for trespasses on the public against the sureties to the bond. lands. It was said that the general law providing for procedure by information after CONAWAY and CLARK, JJ., concur. such inquiry passed two years later, but in force long before the commission of the alleged offense, might not apply to such special offenses, and that the special act might

WILSON et al. v. CITY OF SALEM et al.' govern. The special act was denounced as (Supreme Court of Oregon. Sept. 12, 1893.) unconstitutional, for the reason that it un- PUBLIC IMPROVEMENTS-ASSESSMENT ON ABUTTING dertook to authorize a trial in some other OWNERS-VALIDITY-CONSTITUTIONAL LAW. county than that where the offense was al

1. A city charter giving power to improve leged to have been committed, as not at

streets at the expense of adjoining property is

not unconstitutional, as depriving persons of fording the accused a trial by the jury of property without due process of law, because the vicinage; but although the court speaks it does not expressly provide for notice to the of the omission of the provision for a pre

property owners at any stage of the proceed

ings. vious preliminary examination before lodg

2. Under a city charter making each lot ing the information as a “poor and insuth- or part liable in whole or in part for the cost, cient provision," and of the act generally as

as the council may determine, of an improveregardless of private rights, it was not held

ment on the half street in front thereof, and

providing that the council may assess on each unconstitutional for this reason. The act

lot or part thereof liable therefor its proportionprovided that the charges should be verified ate share of said cost, it is proper to make an by the affidavit of some credible person,

assessipent by the front foot. but the verification was upon information

3. An abutting property owner, with actual

knowledge that the work is being done, cannot and belief; and so it was held that the act wait till the completion thereof to object to declared unconstitutional, oppressive, and the method of assessment or other irregulari. void, as providing for a trial by a jury other

ties in the action of the city council, which do

not affect their jurisdiction. than that of the vicinage, was not followed.

4. On appeal from a decree for plaintiff The distinction was made between the case given on demurrer to the answer, the allegaand that of Washburn v. People, 10 Mich.

tions of the latter must be taken as true. 372, as to the verification of the information. Appeal from circuit court, Marion county; In the latter case the verification of the George H. Burnett, Judge. prosecuting attorney on information and be- Action by J. Q. Wilson and others against lief was held good after there had been a the city of Salem and H. P. Minto. From preliminary examination, while in the for- a decree for plaintiff, the city appeals. Remer case it was held that no such inquiry versed. had been had. Mr. Bishop says: "Except The other facts fully appear in the followby force of some statutory provision not ing statement by Bean, J.: found generally in our states, the prelim- This is a suit to restrain the execution of inary examination is not necessary; being a warrant for the sale of plaintiffs' property a mere expedient to prevent the suspected for delinquent street assessments, comperson from escaping, or for preserving the menced after the work had been completed, evidence, or keeping the witnesses within and accepted by the city, and the property control. But in a few of the states the pre- advertised for sale. The case comes here liminary examination must, by statute, pre on an appeal from a decree in favor of the cede the indictment in particular cases, or plaintiffs given by the court below, after in all." 1 Bish. Crim. Proc. 239a.

sustaining their demurrer to the answer, and After a careful examination of the case, defendant refusing to further plead. From on the authorities presented, and on many the complaint and answer it appears that we have found ourselves, we come to the some time prior to the 14th day of March, conclusion that the information, under the 1892, the city of Salem gave notice that on law as it then was, could be filed by the said day it would receive bids for the iniprosecuting attorney without a previous pre- provement of Chemeketa street according to liminary examination or judicial inquiry of the plans and specifications on file in the the accused on a similar accusation, and city surveyor's office. After the bids had that the law authorizing such action was been received, and the probable cost of mak

For opinion on rehearing, see 31 Pac. Rep. 691.

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