dissenting:
December 19, 1912, Fritchard was bound over to the District Court upon a felony charge, by a justice of the peace acting as a committing magistrate, who fixed his bail in the sum of $2,000. Failing to give this, he was committed to jail. December 23, 1912, the District Attorney, by leave of court, filed an information against him based upon the preliminary examination. The court fixed his bond at $1,500.00 and entered an order that he be let to bail in that sum upon surety to be approved by the clerk of the court. Defendant remained in jail until February 27, 1913, when an order was entered by the court permitting his attorney, Mr. Bottom, to sign the District Court *123bail bond, whereupon Mr. Bottom went to the office of the clerk of the District Court and executed the following bond:
“State of Colorado, City and County of Denver, ss.
People of the state of Colorado against Thomas N. Fritchard, case No. 21,021. In the District Court, Division 5.
Know all men by these presents that we, Thomas N. Fritchard, as principal, and John T. Bottom, as surety, are jointly and severally held arid firmly bound unto the people of the state of Colorado in the penal sum of fifteen hundred dollars lawful money of the United States, to be levied upon our and each of our goods, and chattels, lands and tenements, unto the use of the said people, if default be made in the following conditions, which conditions are these:
That if the above bounden, Thomas N. Fritchard, shall personally be and appear at the first division of the District Court of the second judicial district, sitting within and for the city and county of Denver, state of Colorado, on the eighth day of April, A. D. 1913, and from day to day and term to term thereafter, and remain at and abide the order of said court and not depart the court without leave, then and there to answer unto a certain information therein pending against the said Thomas N. Fritchard, for the crime of grand larceny and larceny as bailee, then this recognizance to be void, otherwise to be and remain in full force and effect.
Given under our hands and seals this 27th day of February, A. D. 1913.
(Signed) Thomas N. Fritchard, (seal)
C. L. Fritchard, (seal)
John T. Bottom. (seal)
State of Colorado, City and County of Denver, ss.
John T. Bottom, the surety whose name is subscribed to the above undertaking, being duly sworn upon his oath says that he is a resident and realty holder within the said city and county of Denver, and that he is worth the sum specified in the said undertaking as the penalty thereof, *124over and above his just debts and liabilities, in property not by law exempt from execution in this state, said property consisting of 1648 Washington street, in the city and county of Denver, value $10,000; encumbrance $2,900.
(Signed) John T. Bottom.
Subscribed and sworn to before me this 27th day of February, A. D. 1913.
J. Sherman Brown, Clerk.
By J. H. Bergen, Deputy Clerk.
This recognizance signed by the above named Thomas N. Fritchard, C. L. Fritchard and John T. Bottom, in my presence, and filed and approved by me this 27th day of February, A. D. 1913.
J. Sherman Brown, Clerk.
By J. H. Bergen, Deputy Clerk.”
Defendant was then released, but failing to comply with the conditions of the bond, it was forfeited and scire facias issued against Bottom. The defense was, that the bond was void because not taken by an authorized person. It was stipulated on the trial of the scire facias, that the bond was taken by the clerk in the clerk’s office; not in the court room, nor in open court, nor in the presence of the judge.
Sec. 245, R. S. 1908, provides that no attorney at law shall become surety in any bond or recognizance for the appearance of any person charged with a public offense without the consent of a judge of the district first had, approving said surety.
Sec. 1932 makes judges of the Supreme Court and of the District Courts, and justices of the peace, committing magistrates with power to bind over to -the District Court.
Sec. 1938, provides for the issuing of a warrant by airy judge or justice of the peace who shall, after hearing the evidence, either commit the accused to jail, admit him to bail or discharge him. The recognizance, if taken, shall require the accused to appear on the first day of the next term of the District Court, or if that court is in session, then on some day of the term to be designated.
Sec. 1942, provides that if the accused fails to give the *125bail at the time of the preliminary hearing and is committed for want of good and sufficient bail, the magistrate shall endorse on the warrant of commitment in what sum bail ought to be taken, then after that any two justices of the peace, or any judge, may take such bail in vacancy, that is, when the District Court is not sitting, as provided in section 1984.
Sec. 1944, then provides the manner in which the recognizance shall be taken; it shall be taken to the people and be signed by the persons entering into the same, and certified by the magistrate or person taking it, who must then deliver it to the clerk of the District Court on or before the day mentioned therein for the appearance of the accused. Showing clearly that these sections relate to bind over proceedings to the District Court conducted by judges or justices of the peace, sitting as committing magistrates. The section then provides that recognizances taken in courts of record need not be so signed, meaning of course, an open court recognizance.
Sec. 964, provides that the District Attorney shall file an information against the accused who has had a preliminary examination and been bound over by the examining magistrate.
Sec. 1969, provides that the clerk of the District Court shall issue process of capias directed to the sheriff for the arrest of the person informed against, and makes it the duty of the sheriff to arrest the person therein named and let him to bail and return the recognizance to the clerk who issued the capias. When the District Attorney files the information, section 1947 provides that the court shall make an order fixing the amount of the bail, which the clerk must endorse on the process, and the statute says the sheriff who arrests the person — not the clerk — shall let him to bail in the sum' specified on the process, and the bail bond shall be signed by the persons entering into the same. This is a signed bail bond, as distinguished from an open court recognizance.
These sections apply to all informations alike, whether *126the accused has had a preliminary examination or not, or whether he is at large or in jail. In People v. Eberlie, 60 Colo. 209, 152 Pac. 146, it is said:
“When an information is filed in the District Court, the statute makes it the duty of the court to enter an order fixing the amount of bail — to be endorsed on the process— and the clerk of the court is directed to issue process of capias for the apprehension of the defendant. The statute providing for the issuing of a capias, and the endorsement thereon of the amount of bail, and letting the accused to bail, makes no exception of cases in which the defendants have had a preliminary hearing, but applies alike to all informations.”
When the District Attorney filed his information and the court entered the order fixing the amount of bail, and the clerk issued the capias, and placed it in the hands of the sheriff, with the amount of bail endorsed thereon, the magistrate’s order -endorsed on the warrant of commitment had served its purpose and defendant was under another jurisdiction. The bail attempted to be taken in the District Court was not the magistrate’s bail, but that fixed by the order of the District Court.
2. A bond or recognizance takefi and approved by an officer of court in a criminal case who has no statutory authority to take nor approve such a bond, is void both as a statutory bond and as a common law obligation.
People v. Mellor, 2 Colo. 705; Haney v. People, 12 Colo. 345-349, 21 Pac. 39; Rupert v. People, 20 Colo. 424-427, 38 Pac. 702; Thompson v. People, 23 Colo. App. 204-206, 128 Pac. 863; State v. Caldwell, 124 Mo. 509, 28 S. W. 4; San Francisco v. Hartnett, 1 Cal. App. 652, 82 Pac. 1064; Territory ex rel. v. Woodring, 15 Okl. 203, 82 Pac. 572, 1 L. R. A. (N. S.) 848, 6 Ann. Cas. 950.
3. The next proposition is equally well settled. The clerk of court has no authority to take a bail bond in criminal cases unless so authorized by statute, and if taken by him in the absence of such authority, is void; further, it is impossible without statutory authority, for the court *127to confer any such power upon the clerk, and any order made by the court that the clerk approve the bail bond, unless the statute authorizes it, is void.
6 C. J. 981, § 207; 3 R. C. L. §§ 24, 25; 3 A. & E. Enc. of Law (2d Ed.), p. 659; Morrow v. State, 5 Kan. 563; State v. Caldwell, 124 Mo. 509, 28 S. W. 4; State v. Winninger, 81 Ind. 51; Dickenson v. State, 20 Neb. 72, 29 N. W. 184; Territory ex rel. v. Woodring, 15 Okl. 204, 82 Pac. 572, 1 L. R. A. (N. S.) 848, 6 Ann. Cas. 950; San Francisco v. Hartnett, 1 Cal. App. 652, 82 Pac. 1064. In 6 C. J. at page 981, § 207, it is said:
“As to clerks of courts it may generally be stated that they have no inherent power to take bail, and can do so only by virtue of some statutory enactment, and this is true even though they are deputized by the court or a judge thereof, for, in the absence of a statute permitting it, courts cannot delegate such power to their clerks. And where bail is taken by a clerk without legal authority, a subsequent approval by the court does not validate it.”
In 3 R. C. L., secs. 24 and 25, p. 23, it is said:
“While there is a difference of judicial opinion as to the right of the legislature to grant the power to allow bail to a clerk of court, the authorities uniformly hold that this office has no such power inherently, and unless it is conferred upon him expressly by statute, a bond entered into before him in a criminal case is void. The court cannot delegate its authority to take bail to the clerk.”
In 3 A. & E. Enc. of Law (2d ed.), p. 659, the rule- is stated:
“There is no inherent power in the clerk of a court to take bail, and he cannot, in the absence of a statute, be delegated so to do by the court.”
4. We have no statute authorizing the clerk to take and approve bail bonds in criminal cases. That power is conferred by statute exclusively upon the sheriff. The clerk’s statutory duty was to endorse the amount of bail fixed by the court upon the capias, and deliver it to the sheriff, whose duty it was to take the bail bond and deliver it to *128the clerk for filing in his office. Section 1946, C. J., p. 971, cited in the majority opinion, applies to open court recognizances, not to a bail bond like this. In criminal cases any court of record or court that has jurisdiction to try the defendant, has inherent power to admit him to bail. Such a technical recognizance is not written nor signed. It is entered into orally in open court before the court, and is called an open court recognizance.- The obligors appear at the bar of the court, and acknowledge themselves to owe and be indebted unto the people in a stipulated sum, upon certain conditions named. Neither the clerk nor sheriff has anything to do with the execution of such a bond. The clerk enters what took place before the court in the minutes, spreads it upon the journal of the day’s proceedings and it becomes a part of the court recordf. Nothing of that sort was done in this case. The court entered two orders only, in this matter. The first, December 23, 1912, which provides that defendant be let to bail in the sum of $1,500.00 with surety to be approved by the clerk. The next, February 27, 1913, when Mr. Bottom appeared in court and asked permission to sign the bond. There are no other orders. There was no attempt by any one to enter into an open court recognizance, and the court took no such recognizance.
The only court officer authorized by statute to take the bond, was the sheriff, and the court exceeded its jurisdiction when it directed the bond to be taken by the clerk. The only power to admit to bail possessed by the court itself, was by an open court recognizance, which power was not exercised. We have neither an open court recognizance, nor a bail bond taken by the sheriff, so we must of necessity eliminate from the case both these methods of taking bail. What then do we have? Whether the majority opinion holds that the bond was taken by the judge as distinguished from the court, I cannot tell. If so, the answer to such a contention is that the record shows that the bond was not taken by the judge, but by the clerk. I have no way of contending against a wrongful statement *129of the record, except to say that there is no such record. If it be conceded that a judge, as distinguished from the court, has such power, the record shows he did not exercise it and did not take this bond. If he had endeavored to do so, it would have been necessary for the principal and surety to execute the bond before him personally, and it then would have to be filed with the clerk the same as a bond taken by the sheriff. I have stated in full all the record in this matter so that it cannot be contended with any truthfulness that the judge took this bond.
5. The first court order simply fixed the amount of bail with the direction that the surety be approved by the clerk. The second court order is in the following language
“No. 21021. People v. Thomas N. Fritchard. At this day it is ordered by the court that Attorney John T. Bottom be permitted to become surety on the bond of the defendant herein, Thomas N. Fritchard.”
Bottom belonged to a prohibited class, and this order simply removed the disability created by the statute on account of his being an attorney. When that was removed, he became competent and stood upon the same footing as any other prospective surety.- He had to possess the proper qualifications of a surety, and go before the proper court officer to sign the bond like any other surety. The court did not pass upon his qualifications nor order that he be accepted as a surety. It simply removed the disability and placed him in the competent class to sign the bond. Before that he was incompetent, no matter what his qualifications. If the court ordered the clerk to take and approve Bottom as a surety on the bond, why did the clerk make him qualify?
It was admitted on the trial that this bond was signed in the clerk’s office, away from the court room, away from the judge and not in open court; that Bottom went to the clerk’s office, and the clerk took the bond the same as he would take any other bond. This was a void act of the clerk because without authority of law and the bond was void. Being void, there could be no liability upon it.
*130Decided February 5, A. D. 1917. Rehearing denied May 7, A. D. 1917.I am authorized to state that Chief Justice White and Mr. Justice Bailey concur in the views herein expressed.