inbefore provided," and evidently contains the moneys derived from the proceeds of unclaimed estrays which finds its way, through the hands of the secretary of the live-stock commission, into the state treasury; and the specific appropriation for two fiscal years thereafter provided, although termed the "Inspection Fund," must be considered as only a portion thereof, the other part of it being derived from the proceeds of unclaimed estrays. It will be noticed that the specific appropriation per annum, in the statute, is reduced one-half from the amount appropriated by the act of 1890; and it would seem that the legislature considered that by restoring to the inspection fund the moneys resulting from the proceeds of unclaimed estrays the reduced appropriation might be sufficient for the purposes of the commission for two years, at least. Although the provision in section 30 is unambiguous, directing unclaimed estray moneys to be paid into the general fund, it is no clearer than the later section, 33, providing that the expenses of inspection, and the support of the commission and its employes, must be paid out of the inspection fund "hereinbefore provided," and never, under any circumstances, out of any other fund. It follows that the moneys received by the treasurer from the secretary of the live-stock commission, not claimed by the unknown owners of estrays, must finally go into the inspection fund created by the act, even if first it passes into the general fund of the state; otherwise, several important sections of the act would be meaningless, and the plain legislative intent, gathered from prior legislation, and even from the act itself, would be violated. No specific appropriation was made by the second legislature to defray the expenses of the live-stock commission, but the existing statute stands unrepealed and unmodified. The decisions of this court at the present term in the case of State v. Burdick, 33 Pac. Rep. 125, 131, control our decision in this case, under the construction of the act we have now under consideration. As we read the act, the inspection fund must be preserved intact for the use of the live-stock commission so long as the existing law is in force. The semiannual payments made to the state treasurer by the secretary of the commission, under the terms of the act, as unclaimed moneys derived from the sale of estrays, are part of the inspection fund; and since the specific appropriation for the biennial period ending March 31, 1893, is exhausted, they constitute the fund itself. The salary of the relator is a proper charge upon this fund. It can be paid out of no other fund, as the statutes now exist, and it appears that there are sufficient moneys in the fund to pay his claim. It is a continuing fund, and may be used for the purposes of the commission. The peremptory writ is allowed, requiring

1. A law permitting the clerk of court, in vacation, to take bail, and fix its amount, is said not unconstitutional, as conferring on clerk judicial power.

2. It is no defense for the sureties on a bail bond that the information was insufficiently verified, or that the arrest of the principal on a warrant issued on such information was illegal.

3. A statute permitting informations to be filed without preliminary examination, whenever the prosecuting attorney is satisfied that a crime or offense has been committed in his county, is not invalid as an infringement of "dne process of law."

Case reserved from district court, Sheridan county; W. S. Metz, Judge.

Proceedings in the nature of scire facias against the sureties of Henry Krohne. They raise these questions: (1) That the clerk of the district court cannot admit to bail under the statute conferring that power; (2) that the arrest of their principal was illegal, as the information was verified upon information and belief; (3) that the entire proceedings are void, because their principal had no preliminary examination before the information was filed, and before he was admitted to bail, he not having waived the same. Bond held valid, and judgment directed against the sureties.

Charles N. Potter, Atty. Gen., for the State. A. C. Campbell and R. W. Breckons, for defendants.

GROESBECK, C. J. This proceeding was reserved by the district court of Sheridan county for the decision of this court, under the statute providing that, when an important or difficult question arises in an action or proceeding pending before the district court in any county of this territory, (state,) the judge of said court may, on motion of either party, or upon his own motion, cause the same to be reserved, and sent to the supreme court for its decision. Chapter 66, Sess. Laws 1888. An information was filed in the district court of Sheridan county, accusing one Henry Krohne and others of grand larceny committed in said county, as alleged, on March 15, 1892, by the county and prosecuting attorney of said county, without any preliminary examination of the defendant Krohne, in the vacation of the dis trict court of said county; and this informa tion was verified by the affidavit of M. L.

Blake, as county and prosecuting attorney, the verification stating that he has been reliably informed and believes that the facts stated in the information are true. This information was filed September 26, 1892, and the clerk of the court issued a warrant for the arrest of the defendants, including Krohne. The following day, Krohne was brought before the clerk of the court, and admitted to bail by him in the sum of $1,000, with the defendants in this action as sureties, conditioned for his appearance at the next term of the district court for said county, there to remain from day to day, and not to depart without leave of court, and to abide the judgment of said court, whereupon Krohne was discharged. He failed to appear at the first day of said court, next holden thereafter, the bond was declared forfeited, and proceedings in the nature of scire facias were begun by the direction of said court against the defendant's sureties. They appeared, and excepted to the rule to show cause, alleging as grounds therefor (1) that the information is in violation of the constitution of the United States, and of section 4 of article 1 of the constitution of this state, for the reason that no preliminary examination of Krohne, the principal on the bond, was had upon the charge set forth in the information, the same not having been waived, and because the information was not made upon probable cause, supported by oath or affirmation or affidavit, as required by the constitution of Wyoming; (2) that the statute under which the information was filed is contrary to the constitution of this state, and the constitution of the United States, in that it deprives the said Krohne and the sureties defendant of liberty and property without due process of law; (3) that said information and all proceedings had thereunder are of no effect, for the reason that no preliminary examination was had of said Krohne, as required by the laws of this state; and (4) the information is void, and all proceedings thereunder of no effect, for the reason that the information-and the statute under which the same was prosecuted-is in violation of the fourteenth amendment to the constitution of the United States, in that it deprives the said Krohne of equal protection of the laws. The court reserved the questions to this court for decision, pursuant to the statute supra. Another question submitted on argument, not directly embodied in the exceptions, is that the clerk of the district court for Sheridan county had no authority, although conferred by statute, to fix the amount of bail, and to let to bail Krohne, the principal on the bond. It was stipulated in the hearing before us that the following questions should be considered as reserved by the district court for our determination: First, whether or not the bail bond of the defendant Krohne is void for any of the reasons charged in the exceptions of the sureties; and, second, wheth

er the sureties are liable under said bond, and judgment should be rendered against them in this proceeding.

1. The authority of the clerk of the court to issue the warrant, and to admit to bail, was conferred by statute. Section 8, c. 59, Sess. Laws 1890-91. This section was repealed by section 2, c. 21, Sess. Laws 1893, but was in force at the time of filing the information, the issuance of the warrant thereon, and the taking of the bail thereunder. It is contended that the statute was unconstitutional, in permitting the clerk of the court, in the vacation or recess thereof, to take bail, and fix the amount of such bail, as conferring upon the clerk judicial power. The case of Hall v. Marks, 34 I 358, is cited in support of this contention, where the court held that a clerk could not render in vacation a judgment in default. In that case it seems that such was the practice of one of the circuit courts of Illinois, and it does not appear to have been warranted by statute. In some states such a practice obtains, to allow the clerk to enter judgment in vacation in certain cases of default, but this power I understand to be comerred by statute. Mr. Bishop says that "anciently the sheriff, possessing judicial with ministerial powers, was the principal bailing officer. In many of the states, he may take bail; in others, not." 1 Bish. Crim. Proc. (3d Ed.) § 251, and cases cited. The following cases hold that sheriffs or clerks may take bail, and some of them are to the effect that they can fix the amount thereof: Moss v. State, 6 How. (Miss.) 298; State v. Edwards, 4 Humph. 226; State v. Brown, 32 Miss. 275; Blackman v. State, 12 Ind. 556; Com. v. Roberts, 1 Duv. 199; Antonez v. State, 26 Ala. 81; Evans v. State, 63 Ala. 195; State v. Wyatt, 6 La. Ann. 701; State v. Gilbert, 10 La. Ann. 524; State v. Jones, 3 La. Ann. 10; Wallenweber v. Com., 3 Bush, 68; Schneider v. Com., 3 Metc. (Ky.) 411; McCole v. State, 10 Ind. 50; Dickinson v. Kingsbury, 2 Day, 1; State v. Hendricks, (La.) 5 South. Rep. 177; Ellis v. State, 10 Tex. App. 324; McClure v. Smith, 56 Ga. 439. It was held in Kansas that when a court has failed to fix the amount of bail of a defendant arrested upon a warrant issued upon information, and there is no district judge in the county, the clerk of the district court may fix the bail of the defendant, and this upon the ground that the statute so provided. State v. Schweiter, 27 Kan. 499. See People v. Kane, 4 Denio, 530; McCole v. State, 10 Ind. 50. In Ainsworth v. Territory, 3 Wash. T. 270, 14 Pac. Rep. 590, it was held that the judge of a criminal court of record might accept and approve a bail bond in vacation, even where the prisoner had been previously committed in default of bail and was in custody of the sheriff, as the statute authorized a judge at chambers to determine all matters where

a jury was not required; and in this case it was claimed that, as the prisoner was held by the sheriff, that officer alone could accept bail. In Vermont a clerk of a county court issued a bench warrant upon an indictment in term time, returnable forthwith. This warrant was served in anotner county, and the defendant was released in the county where it was issued, but rearrested upon the second warrant issued by the clerk of said court in vacation, the court having adjourned after the first warrant was issued. It was held that the statute conferred the power to issue the warrant in term time or vacation, as circumstances might require, without an express order from the judges for the arrest of a person indicted, and for his detention for trial at the next term of court. The court say: "If this seems to invest clerks with quasi judicial power, it is not a new feature attaching to the office. At a very early day, certain of the clerks of the court of chancery performed the duties which are now devolved upon masters in chancery. They were to the number of twelve, distinguished from clerks under them by the name of 'Masters in Chancery,' and were the assistants to the chancellor, who referred to them interlocutory orders for stating accounts, computing damages, and the like. In process of time, as business increased, the clerk whose duty it was to keep the records, or, as formerly called, the 'rolls,' became distinguished as master of the rolls. 2 Bouv. Law Dict. p. 121. So our rules of court and statutes have long distinctly recognized the quasi judicial function in the clerk in various ways; notably in the matter of assessment of damages and taxing of costs. The policy of legislation with us has been constantly to enlarge the powers of clerks." In re Durant, 60 Vt. 176, 12 Atl. Rep. 650. That the clerk of a district court may perform, unuer our statutes, quasi judicial functions, has never been doubted. He may issue writs of attachment upon affidavits filed therefor, without submitting the same to a court or judge, and, in vacation, without consulting a court or judge. Other duties of like character have been imposed by statute upon the clerk, for the convenience of suitors. If a sheriff or a single judge in the recess or vacation of his court may constitutionally fix the amount of the bail, and let to bail a defendant in a criminal case, I do not see why this power could not be conferred upon a clerk of the district court. The object | of the statute is humane. It is for the benefit of the accused, as the court may not be in session, or the judge thereof may be absent, at the time of his application to be let to bail. Judicial power cannot be conferred upon a single judge out of his court, and at chambers, unless upon the theory that his court is kept open for such purposes. Our statutes have long recognized this power in a judge in vacation, and of a

clerk of a court to let to bail. Rev. St. Wyo. §§ 3204-3220; Sess. Laws 1890–91, c. 30.

2. The information is assailed because it was verified upon the information and belief of the prosecuting attorney, and not made upon probable cause, supported by oath or affirmation or affidavit, as required by the constitution of Wyoming. Our constitution provides that no warrant shall issue but upon probable cause, supported by affidavit, etc. A number of cases have been cited, holding that such a verification is insufficient under provisions similar to that in our constitution. In re Rule of Court, 3 Woods, 502; Swart v. Kimball, 43 Mich. 443, 5 N. W. Rep. 635; State v. Gleason, 32 Kan. 245, 4 Pac. Rep. 363. Contra, U. S. v. Eldredge, (Utah,) 13 Pac. Rep. 673. It is not necessary to consider, in this proceeding, whether or not the information was insufficient on account of a defective verification, or because the arrest of the defendant upon a warrant issued upon such information was illegal, as I do not think the sureties had the right to raise those questions for their principal. It was held by the supreme court of Kansas, in State v. Gleason, supra, upon an exhaustive review of the authorities, that a verification upon hearsay and belief was not sufficient to authorize the issuance of a warrant for the arrest of a party therein charged, when no previous preliminary examination, and no waiver of the right of such examination, had been had, and that a motion to set aside the warrant should be sustained, as such a verification was in violation of a section of the bill of rights in the constitution of the state that no warrant shall be issued to seize any person but on probable cause, supported by oath or affirmation. But the same court, at the same term, held that an information so verified was sufficient for every purpose, except merely for the purpose of issuing a warrant for the arrest of the defendant, and that the case of State v. Gleason was in harmony with such ruling. It seems to have

been held in People v. Shaver, 4 Parker, Crim. R. 45, that it was a good defense to an action on a recognizance that it was taken on an illegal arrest of a prisoner for whom the defendant in that suit became bail, yet this seems to be against the current of authority. A recognizance is not voided by the mere fact that the indictment is defective, and liable to be quashed. Com. v. Skeggs, 3 Bush, 19; Hester v. State, 15 Tex. App. 418; Jones v. State, Id. 82; U. S. v. Reese, 4 Sawy. 629; State v. Cocke, 37 Tex. 155; Reeve v. State, 34 Ark. 610. So it has been held that the sureties upon a recognizance conditioned for the appearance of their principal at the next term of court to answer to a criminal charge cannot come into court, and question the sufficiency of the indictment, without producing the body of their principal. State v. Rhodius, 37 Tex. 165; Pack v. State, 23 Ark. 235; Williams v. State, 20

Ala. 63. In this last case cited the court used the following language: "The recognizors (except the accused) have no connection with the indictment, and the question of its regularity or irregularity, in this respect, is wholly disconnected from their undertaking. They bind themselves that their principal shall appear and answer the charge against him, and if he fail to do so the condition is broken, and they become liable for the penalty." See U. S. v. Wallace, 46 Fed. Rep. 569; Fleece v. State, 25 Ind. 384; Dilley v. State, (Idaho,) 29 Pac. Rep. 48, citing State v. Sutcliffe, (R. I.) 17 Atl. Rep. 920; Jones v. Gordon, (Ga.) 9 S. E. Rep. 782; Lee v. State, (Tex. App.) 8 S. W. Rep. 277; State v. Hendricks, (La.) 5 South. Rep. 177; Brown v. People, 26 Ill. 28; Mix v. People, Id. 32; State v. Stout, 11 N. J. Law, 124. The sureties on a bail bond or a recognizance each become a pledge and manucaptor for the principal on the bond or recognizance. They are not the judges of the propriety or utility of the attendance of their principal at the court whither he is bound to appear. The law refers all such questions to the court where he is required to repair, and the court alone has the power to decide whether the principal is bound to appear. An elaborate review of the authorities upon this proposition is found in the case of Littleton v. State, 46 Ark. 413. It was there asserted that the defendant, the principal on the recognizance, was illegally arrested in a certain county by the sheriff of another county, upon a warrant issued by a justice of the peace of the other county, not in hot pursuit of the offender, the statute probably restricting the authority to execute a process by a sheriff to his county. The bond was taken, however, by the sheriff in his own county, while the prisoner was in his custody, and while there was a charge pending against him for an offense cognizable before a magistrate who issued the warrant of arrest. The court say: "Upon a trial for the offense under the circumstances, or upon an application by the prisoner to be released from imprisonment upon habeas corpus, the courts refuse to inquire into the manner or circumstances of the arrest, even though it has been made by force in a foreign jurisdiction." A number of cases are cited from different states in support of this position, nearly all of which were reviewed in the case of Kingen v. Kelley, 3 Wyo. 566, 28 Pac. Rep. 36, where the same doctrine was announced. The Arkansas court further say, in this connection: "As the prisoner is entitled to discharge upon bail in every case of misdemeanor, it is difficult to see what greater right he has to have the court inquire into the manner or place of his arrest, after release, than he had before. As it is a question in favor of liberty, it would seem that the courts would more readily inquire into the cause of his complaint while the restraint is upon him. And so it has been held that, after bail in a crim

inal case, no objection can be taken to the manner of the arrest. Peck v. State, 63 Ala. 201; Stever v. Sornberger, 24 Wend. 275; Manufacturing Co. v. West, 1 Cush. 388." This decision further states that the duress of the principal is not a cause of defense by the sureties to a bail in a criminal case, because the law affords them no redress against their principal upon payment of their recognizance, the recognizance being a primary undertaking on their part, and it not being necessary that the prisoner should be a party to it; citing Tillson v. State, 29 Kan. 452; High. Bailm. p. 204; U. S. v. Ryder, 110 U. S. 729, 4 Sup. Ct. Rep. 196; Huggins v. People, 39 Ill. 241; Plummer v. People, 16 Ill. 358,-in which last case the test applied by the court, where the principal pleaded his duress in the execution of the bond, was whether he would have been released on habeas corpus at the time of executing the bond. It seems that, where the sureties have received the benefit of the duress of the principal, there has been a fundamental defect in the proceeding which led to the arrest, that, in effect, renders it void, and the bond taken null, as where the magistrate taking the bond had no jurisdiction of the case, and hence no authority whatever. I am of the opinion that even though the arrest of the defendant could be held illegal, for the reason that the warrant issued for his arrest without probable cause, supported by affidavit, as the information was verified upon information and belief, such a defense cannot avail the sureties in this proceeding, and that any objection to the information, either that it did not state an offense or was insufficiently verified, must be overruled. This might have been waived by the accused, if he had been on trial. The sureties are considered as jailers of their principal, of his own choosing; and the object of the state in requiring bail is not pecuniary compensation, but to compel the presence of the accused, to the end that justice may be administered. Extraordinary remedies are provided by the state for the surrender of the accused by the sureties. As his pledgors, manucaptors, and jailers, they are bound to produce him in court, and they are considered responsible for his appearance there. Exacting the penalty of the bond is the punishment for neglect of this duty on their part, not for any act of the accused. The relation of principal and surety between the accused and his bail exists only in a qualified sense. It has been held by the supreme court of the United States that it is against public policy to aid the bail to relieve themselves from the punishment meted out to them for their neglect in failing to surrender their principal to justice. U. S. v. Ryder, supra.

3. It is shown by the exceptions, duly verified, that Krohne, the principal on the bond, had no preliminary examination previous to the execution of the bond, and that he had

not waived the right to such an examination. The statute in force at the time of the execution of the bond and the institution of these proceedings provided that "no information shall be filed against any person for felony until such person shall have had a preliminary examination therefor, as provided by law, before a justice of the peace, or other examining magistrate or officer, and shall have been held for trial by such court or officer, unless such person shall have waived his right to such examination: provided, however, that informations may be filed without such examination against fugitives from justice, and in misdemeanor cases not punishable by a justice of the peace, or whenever the county and prosecuting attorney is satisfied that a crime or offense has been committed in his county." Section 7, c. 59, Sess. Laws 1890-91. With the exception of the last clauses of this section, it contains the provisions common to the statutes of such states as have adopted proceeding by information on the part of the prosecuting attorney in lieu of, or as a concurrent proceeding with, indictment against persons accused of criminal offenses. These statutes have generally made the exception to the rule requiring a preliminary examination previous to the filing of an information, in the cases of fugitives from justice, and in misdemeanor cases cognizable before a justice of the peace. Such exceptions have not been assailed, and certainly have not been held a constitutional violation of the rights of the accused. The information referred to in the act, doubtless, was intended to mean an information in the district court. In cases of fugitives from justice, under the act of congress relating to their extradition or requisition, the absconding accused may be demanded and surrendered upon the production of a certified copy of the indictment, "or an affidavit made before a magistrate of the state or territory" charging the person demanded with crime. Rev. St. U. S. § 5278. The accusation may be made upon affidavit before a justice of the peace, without filing an information or securing an indictment against the fugitive, or without first having the preliminary examination before the magistrate. It has been the practice here, and doubtless in other jurisdictions, to secure fugitives from justice upon the affidavit made before a magistrate, and to hold the preliminary examination upon their return in custody of the officer. Why an exception should be made in such cases is not clear, as the fugitive may be apprehended and secured in the first instance without any preliminary hearing of the evidence against him, except such as may be disclosed by the affidavit of accusation. It may be that it was considered that the provision was deemed necessary for secrecy and dispatch, in order to more effectively prevent the escape of the fugitive, but it seems that the affidavit filed be

fore the magistrate is as effective to secure this end as the filing of an information in the district court. If the legislature can make one such exception dispensing with preliminary examinations before the institution of proceedings by information in the district court, why may it not constitutionally make another? The presumption of innocence is as strong in favor of a fugitive from justice as any other person accused of crime; and, so far as the harshness of the proceeding is concerned, it unquestionably entails greater hardship upon one domiciled in another state, to arrest him and bring him to the complaining state without a preliminary examination, than it would upon one who was a resident of the same county as the officer who issued the warrant or filed the information. No objection seems ever to have been made to the provision excepting fugitives from justice from the rule requiring preliminary examinations of the accused prior to filing the information by the prosecuting officer. If this be conceded to be constitutional and due process of law, the conclusion is irresistible that the legislature may make any exception to the rule requiring the preliminary inquiry. The objectionable feature of the law was that it provided that the information might be filed by the county and prosecuting attorney without such preliminary examination, when he "is satisfied that a crime or offense has been committed in his county," or in misdemeanor cases not punishable by a justice of the peace. This court condemned this first provision in the case of In re Wright, 3 Wyo. 478, 27 Pac. Rep. 565, although its validity was not before it, as a dangerous power to lodge in the hands of the prosecuting officer; but it was there said that it was not intimated how the matter would be decided when properly before us, but attention was called to it as a dangerous method of procedure. We are of the opinion that this provision of the statute was an extreme one, as it gave insufficient protection to the accused; and it has been so regarded after a short trial, as the legislature last in session eliminated the objectionable clause from the section, and it is happily no longer a menace to the rights of the citizen. But a harsh or extreme law may not be an unconstitutional one. If the rule were established that only such legislation should be held constitutional as suited the peculiar views of judges, lawyers, or a body of laymen, many solemn enactments would fall under the ban. It is the duty of a court to denounce as unconstitutional only such statutes as are clearly and palpably violations of the fundamental law. The objectionable clause might be deemed, without investigation, to be unique; permitting, as it did, a prosecuting officer, without any authority, to conduct a judicial inquiry-which would be of doubtful propriety, and of as doubtful constitutionality, if conferred by statute (In re Ziebold, 23 Fed.