127 Tenn. 561 | Tenn. | 1913
delivered the opinion of the Court.
The complainant in this case deposited $250'with the city marshal of the town of Milan in lieu of a bail bond to secure the appearance of his brother, J. L. Brasfield,
J. L. Brasfield failed to appear for trial, and by certain proceedings had before the mayor, the deposit of $250 made by the complainant, as before stated, was declared forfeited to the town of Milan.
This bill was filed by complainant, J. A. Brasfield, for the recovery of said sum so deposited by him. The city answered, interposing various defenses, and upon the hearing complainant’s bill was dismissed by the chancellor. . The court of civil appeals reversed the chancellor’s action and rendered a decree in favor of complainant, and the city filed a petition for certiorari to have the decree of the court of civil appeals reviewed here.
Milan is a town duly incorporated by act of the legislature, and among other provisions contained in its charter, defining the powers of the mayor and alder - men, there is the following:
Section 2, providing for “the arrest, taking bond for appearance and confinement in the city jail until trial of all persons violating any ordinance of the town.”
There is no ordinance of the city authorizing any of its officers to accept a deposit of money in lieu of bond. Whether under this charter provision just quoted it would be permissible for the city authorities to enact an ordinance of this description we need not determine. Certain it is no such ordinance has been enacted. There is, no provision, either in the charter or city ordinances,
Unless expressly so authorized by statute, no judicial officer or other official empowered to admit to bail persons accused of crime has a right to accept a deposit of money in lieu of bail, or as a substitute for a recognizance. To this effect are all the cases. Snyder v. Gross, 69 Neb., 340, 95 N. W., 636, 5 Ann. Cas., 152; Butler v. Foster, 14 Ala., 323; Applegate v. Young, 62 Kan., 100, 61 Pac. 402; Columbus v. Dunnick, 41 Ohio St., 602; Eagan v. Stevens, 39 Hun (N. Y.), 311; (see note to Snyder v. Gross, 5 Ann. Cas., 152.)
Inasmuch as the city marshal of Milan was without any authority to accept this deposit of money from the complainant, the money remained the property of complainant, although it was declared forfeited.
The acceptance of the money and the subsequent proceedings of the municipal authorities with reference thereto were without any justification in law, were beyond the power of such authorities, and conferred no title to this money upon the city. The city could acquire no valid claim to the money by such proceedings. Therefore the money so deposited by complainant; may be recovered by him in this suit. To this effect is the clear weight of authority. Applegate v. Young, supra; Eagan v. Stevens, supra; Butler v. Foster, supra; and Snyder v. Gross, supra.
It is insisted, however, on behalf of the town of Milan' that no recovery could he had in this case except by
In that case there was a deposit of money made with the clerk of the criminal court of Davidson county in lien of bail. This deposit, however, was made under the express authorization of Shannon’s Code, secs. 7131-7135; and the court held that, although the deposit was made by the mother of the accused, the deposit must be returned to him under the provisions of section 7135, Shannon’s Code, which in explicit language directs the payment of such funds "to the defendant.”
The deposit referred to in State v. Ross was made and received under authority of law. The statutes referred to governed its receipt and likewise controlled its disposition.
In the present case the money was received without any authority of law, the town of Milan acquired nol title to it, it is still the property of the complainant] and he is entitled to recover it.
The petition for writ of certiorari is denied.
