State v. Walker

• Decision Date: 31 October 1825
• Parties: THE STATE v. WALKER AND EMMONS.
• Court: Missouri Supreme Court

1 Mo. 546

THE STATE

v.WALKER AND EMMONS.

Supreme Court of Missouri.

October Term, 1825.

A sheriff has no power to admit to bail in criminal cases, and suit cannot be sustained on a bail bond so taken

ERROR FROM THE CIRCUIT COURT OF ST. CHARLES COUNTY.

MCGIRK, C. J.

An action of debt was brought on a bail bond taken by the sheriff of the county of St. Charles, of Emmons and Walker. The bond is taken to the State, with the usual condition for the appearance of one Garraty at the Circuit Court, to answer to a charge on an indictment for assault and battery. The pleas are that the bond was taken by the sheriff, &c. The pleas are demurred to and the court gave judgment for the defendants. The sole question presented for the consideration of the court is, has the sheriff the right and power to admit to bail in criminal cases? It is argued by the attorney general that this course is sanctioned by twenty years' practice; the answer to this is that the course of twenty years' practice, by the ignorance of sheriffs, cannot make the law, nor is it evidence of what the law is. It is also contended by the attorney general that the contract is binding, having been given for a good and valuable consideration and for a legal act; and that, if there is no statute forbidding the bond to be taken by the sheriff it is a lawful contract, and binding by all the principles of the common law. To this argument we answer that the State is not, in all respects, like an individual in respect to her capacity to take rights. The State has no capacity to take a chose in action, unless it is given by express law. She has no natural rights, being an artificial being. She may make contracts, it is true, as incident to some other powers given her. When she contracts she cannot contract in person, but, of necessity, must do it by agent, and no one can be her agent without express authority from her. If the State cannot of necessity contract without agent, it does not follow that any one can assume to be that agent at pleasure. The sheriff has his duties prescribed by law; his powers are defined by law; he cannot transcend them, and if he does his act is entirely void. Furthermore, if the law has never entrusted the sheriff with power of admitting criminals to bail, it follows that no bail bond taken by him is of any avail; and if the prisoner goes at large on taking such bond it is a voluntary escape for which the State has her remedy. It will not do to say the State affirms the transaction...