The object of this mandamus proceeding is to compel respondent Charnoek,- clerk of the circuit court of Brooke county, to accept James Russell and George Steers as sureties on a recognizance, tendered him by relator in accordance with *10 an order of tbe circuit court granting relator bail, fixing tbe amount thereof at '$1500.00, and directing that tbe recognizance be executed before tbe court, or before tbe clerk of tbe circuit court.
Relator, Bobert Garbutt, was indicted at tbe November, 1927, term of court for tbe crime of attempt to commit rape; and at that term appeared in person 'and by counsel and demurred to tbe indictment. The demurrer was overruled, and an order entered permitting Garbutt to give bail in tbe sum of $1500.00, either before tbe court, or before tbe clerk of tbe circuit court, respondent Charnock. On November 14, 1927, relator appeared before tbe clerk and offered James Bussell and George Steers, residents of Ohio county as sureties. Bussell was tbe owner in fee of a lot of land in Ohio county assessed for taxes at $1500.00, with an encumbrance thereon of $1400.00; and Steers showed bis ownership of a lot of land in Ohio county assessed for taxes at $4100.00, with an encumbrance thereon of $1500.00; and another vacant lot valued at $750.00 without encumbrance. He swears that bis personal property is of greater value than $1500.00. There appears to have been no objection to tbe form, or condition of tbe recognizance as required by tbe clerk. Tbe clerk refused to accept tbe sureties for tbe reason then given, that tbe prosecuting attorney bad directed him to accept no surety on such bonds whose real estate was encumbered. On November 19, 1927, the objection of tbe prosecuting .attorney to accepting tbe sureties tendered, namely, that there were encumbrances against tbe real estate owned, by them as above set out, was submitted to tbe court, and tbe judge said be would not overrule tbe objection of tbe prosecuting attorney as that officer was charged with tbe administration of such matters and that be would take tbe view;s of tbe prosecuting attorney as to tbe sufficiency of a bond if be raised any question about it. On December 12, 1917, this alternative writ was issued against tbe clerk and prosecuting attorney and served on December 17th. It appears from an exhibit filed with the return that on January 4, 1928, Garbutt, relator, was brought into court, bis counsel, J. T. MeCamic, being absent, and without notice, an attorney was appointed to represent him, where *11 upon, tbe prosecuting attorney moved tbe court to enter, and tbe court did enter a nunc pro hone order as of November 9, 1927, wbicb recited tbat counsel for plaintiff bad offered Bus-sell and Steers as sureties on the recognizance of tbe accused, and it was then decided by tbe court tbat tbe offered sureties were insufficient and remanded tbe prisoner to jail until a sufficient bond be given.
Tbe return of tbe clerk does not deny tbe allegation in tbe petition supported by affidavits tbat tbe sureties tendered are worth over and above tbeir liabilities tbe sum of $8,000.00, but bases bis refusal to take recognizance on tbe ground tbat be does not bave .tbe consent of tbe judge of tbe court and prosecuting attorney, .and exhibits tbe nunc pro tunc order in justification of bis refusal. By so doing tbe clerk has' adopted tbe objection of tbe prosecuting attorney, approved by tbe judge, wbicb is tbat sureties tendered must own real estate clear of encumbrances. Is tbe refusal based on a substantial reason, or is tbat reason unsound, flimsy, arbitrary and capricious? Tbe record clearly raises this issue.
While tbe petition makes tbe prosecuting attorney a party respondent, tbe prayer is tbat an alternative writ be awarded relator against tbe clerk alone, commanding him to accept tbe sureties on tbe recognizance. There appears to be no relief sought against tbe prosecuting attorney. Tbe return of tbe prosecuting attorney is practically tbe same as tbat of the clerk.
Both respondents interpose a motion to quash tbe petition and writ on tbe grounds, (1) tbat tbe sureties tendered live in Ohio county and not in Brooke county, and tbeir real estate • is also in Ohio county, and hence no suit or action could be maintained in Brooke county, and tbe state would be required to go into tbe former county to enforce tbe obligation, in case tbe recognizance was forfeited; and (2) tbat tbe granting or refusing bail is judicial in its nature and cannot be reviewed by mandamus. Tbe object of bail in criminal cases is to secure tbe appearance of tbe accused before tbe court at a time designated for tbe purposes of public justice.' At common law, bail was allowed in all oases in the discretion of
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the court. The policy of our government is to admit to bail persons charged with crime. Section 5, Article 3, Constitution, and Chap. 156, Code.
Rabeas corpus
may be issued for the sole purpose of obtaining bail in a felony case.
Ex parte Hill,
Were the sureties tendered pecuniarily able to fulfill the obligation? There is no question of their fitness otherwise. It is said that in determining their ability to respond to the penal amount of the obligation, the clerk has discretion which cannot be controlled by mandamus. It is quite true that the clerk exercises discretion in determining whether the sureties tendered are pecuniarily able to perform the obligation if the condition be not performed according to the tenor thereof, but that discretion is not arbitrary and absolute; it must be reasonably and soundly exercised, otherwise a clerk could always refuse to take unquestioned sureties, and successfully defend on the ground that he was exercising discretion which could not be questioned. The result would be as pernicious as where excessive and impossible bail was required. The meaning of discretion generally is sound discretion. “It must be governed by rule; it must not be arbitrary, vague and fanciful, but legal and regular.”
Rex
v.
Wilkes,
2 Burr. R. 25. See
Rose
v.
Brown,
This is not a sound reason on which rejection of the sureties can be based. It is fanciful and arbitrary. Fancied conven *14 ience is made to defeat a legal right to liberty. Under such, a theory. a surety owning property worth a million dollars wpuld be refused because of a lien thereon however small and inconsequential. ,
. Under .the familiar principle that discretion in the performance .of a ministerial duty, where its exercise has been unsoundly and capriciously exercised will be controlled by man-damns, we have concluded to direct the peremptory writ as against .the clerk, and without costs. Se.e
State ex rel. Hoffman
v.
Town of Clendenin,
Writ awarded.