I concur, but in the result only.
The pertinent language of Penal Code section 1298 states: “In lieu of a deposit of money, the defendant or any other person may deposit bonds of the United States or of the State of California of the face value of the cash deposit required, and such bonds shall be treated in the same manner as a deposit of money. ...”
In the plainest of language courts are told by section 1298 that for purposes of bail they must accept federal and state bonds at their face value. In the context of this case the superior court was ordered by the statute to accept such bonds, actually worth $26,000, at their face value of $50,000. To find a different legislative intent, in my opinion, must strain reason.
Faced with the task of interpreting section 1298 the District Court of *508Appeal in Wilson v. Justice's Court, 22 Cal.App.2d 278 [70 P.2d 695] (where no question of constitutionality was raised or resolved), found its meaning clear. There the justice’s court clerk had refused a tender of federal bonds as bail because it was not established “that the present cash value of the bonds tendered equalled the sum of money fixed as bail.” The court said (p. 280):
“The contention thus advanced is not impressive. The above-quoted statute [Pen. Code, § 1298] specifies that a defendant may, in lieu of money, deposit bonds of the United States ‘of the face value’ of the cash deposit required. The judgment from which this appeal is taken refers to the statute and recites that it is the opinion of the trial court that the phrase ‘face value’ means ‘that value, written or printed on the face of said instruments and the unmatured coupons attached thereto, without reference to the actual or market value of said bonds.’ It is our opinion that the definition of the phrase is correct. . . .” (Italics added.)
It does not seem reasonable that here, when the constitutionality of section 1298 is for the first time challenged, we should strain and strive for a different interpretation, i.e., that, despite its language, the statute really means that the court need not accept government bonds for bail purposes at their face value.
The California Constitution, article I, section 6, deals with the subject of bail. It provides that bail shall be sufficient, while at the same time assuring that it shall not be excessive.1
In the case before us the superior court in fixing bail at $50,000 cash found that amount not to be excessive, but nevertheless sufficient. No contention is made that the amount is unreasonable or erroneous in any way.
To the extent that section 1298 purports to compel the superior court to accept bail valued at $26,000 in compliance with an order determining $50,000 as necessary and sufficient for “practical assurance that defendant will attend upon the court,” (In re Newbern, 55 Cal.2d 500, 504 [11 Cal.Rptr. 547,. 360 P.2d 43]) the statute clearly contravenes the Constitution of this state.
“An act of the Legislature is not to be set aside upon any doubtful or uncertain construction to be given the Constitution. But where its infraction *509is clear and unmistakable, the duty of the court is plain, and should be fearlessly performed. . . .” (Van Harlingen v. Doyle, 134 Cal. 53, 56 [66 P. 44].) “It is the duty of courts to maintain supremacy of the Constitution. . . .” (Byers v. Board of Supervisors, 262 Cal.App.2d 148, 157 [68 Cal.Rptr. 549].)
For the reasons stated only, I would deny the petition for mandate.
The full text of California Constitution, article I, section 6, follows: “All persons shall be bailable by sufficient sureties, unless for capital offenses when the proof is evident or the presumption great. Excessive bail shall not be required, nor, excessive fines imposed; nor shall cruel or unusual punishments be inflicted. Witnesses shall not be unreasonably detained, nor confined in any room where criminals are actually imprisoned.”