(dissenting). Twenty years ago, in 1970, the Legislature added a sentence to § 151 of the bail chapter (chapter V of the Code of Criminal Procedure) concerning forfeiture of bond or bail, providing that the court shall set aside a forfeiture if the person released on bail is apprehended within one year, the ends of justice have not been thwarted, and the county has been repaid the cost of apprehending the person.
The majority today holds that the forfeiture set-aside provision, applies only where the release of *334the defendant from custody was obtained by the deposit of cash, a certified check, or certain securities2 with the trial court3 and does not apply where, to use language in the title of 1919 PA 332, "bonds or bail of other character required or permitted by law” are furnished.4 I would hold that the forfeiture set-aside provision applies to all bonds or bail.
i
Pearl Evans failed to appear. An order was entered forfeiting a $15,000 surety bond posted by Kozy Bail Bond. Kozy apprehended Evans within the one-year period.5 The Court of Appeals, agreeing with one panel6 and disagreeing with another,7 held that the trial judge should have set aside the forfeiture.8
The majority holds that because Evans was not released as a result of a deposit of cash, a certified check, or government securities with the clerk, but rather as a result of Kozy’s furnishing a surety *335bond, that the forfeiture set-aside provision does not apply. The majority reaches its conclusion on two bases:
(1) the forfeiture set-aside provision was added to a section of the statute which, as originally enacted in 1919 — over fifty years before the 1970 amendment — provided for deposit of cash, certified checks, or government securities in lieu of a surety bond.9 The majority reasons that the Legislature, aware of this history, intended to limit the forfeiture set-aside provision to forfeitures of cash, certified checks, or government securities;
(2) a contrary construction would "ensure the profitability of the bondsman’s undertaking.”10
I would hold, absent evidence of a legislative intent to place a gloss on the literal language of the statute — applicable in terms to any forfeiture of "bail or bond” — so that the forfeiture set-aside provision applies only to bail or bond provided by the deposit of cash, certified checks, or government securities, that the forfeiture set-aside provision also applies where the bail or bond is provided by a commercial surety or an individual surety, such as a friend or relative of the defendant.
n
The majority states that it "need not resort to *336considerations of proper public policy in order to interpret § 15(a),”11 but, curiously, appears to rest its decision on its perception of public policy:
In our view, the most persuasive evidence of a legislative intent to limit the right to relief under § 15(a) is our inability to conclude — in light of the historical context in which the amendment was passed — that the Legislature could have intended to so ensure the profitability of the bondsman’s undertaking.
In all cases, whether the defendant appears on time or not, the bondsman is entitled to keep the ten percent fee he charges for his services. In addition, he often secures collateral from the defendant or his family or relatives for as much of the other ninety percent of the bond amount as he can, in the event the defendant does not appear. In essence, the bondsman’s decision to bail a particular defendant is a business decision, reflecting an evaluation of whether the defendant is likely to appear for trial, his recourses in the event the defendant does not appear, and, of course, the fee he will in any event collect. We find it doubtful, given the time and context in which the amendment was passed, that the Legislature intended to remove a good part of this "risk factor” from the bondsman’s decision by ensuring not only his ten percent fee but his freedom from liability even if the defendant fails to appear, so long as he is captured within a year.[12]
The majority’s explanation for its result is imaginative. There is no legislative history indicating that a single legislator expressed the concept set forth in the majority opinion.
The majority’s analysis is contradictory. The majority recognizes that the surety "often secures collateral from the defendant or his family or *337relatives”13 for the entire amount of its exposure. Thus, the result of the majority’s decision may not be to reduce the profitability of the bondsman’s undertaking, but rather to cause loss to family, relatives, or friends who provide the collateral without which the surety would not have furnished the bond.
I suggest that before proceeding on the hypothesis that the result of its narrow reading of the forfeiture set-aside provision will be a reduction in the profitability of the business of commercial suretyship that the Court should remand for the taking of evidence. The trial court could invite commercial sureties and others to introduce evidence concerning the extent commercial sureties act with or without collateral, whether limiting the applicability of the forfeiture set-aside provision will result in an increase in premium costs to defendants, and in general who will defray any added cost: commercial sureties, family, relatives or friends of defendants, or taxpayers who, because of increased costs in obtaining a surety bond, may be called upon to pay the cost of housing defendants who otherwise might be released on bond.
I do not wish to be understood as suggesting that the correct disposition of this case is a remand for that purpose. I would hold that the forfeiture set-aside provision applies to all forfeitures of bail or bond, and suggest a remand only because I believe the majority’s construction is premised on assumptions regarding the facts relevant to the underwriting of commercial surety bonds that have little or no reality.
hi
Chapter V of the Code of Criminal Procedure *338applies generally to bail without regard to whether the "security” for the defendant’s appearance is a surety bond or other collateral. The sentence added in 1970 might have been located in § 15(a) simply because the first sentence of § 15(a) speaks of the entry of an order where "bond or bail” is forfeited, and the added language concerns setting aside such a forfeiture. The Legislative Service Bureau may have advised putting the language in this subsection because it appeared to the bureau to be the appropriate place for the language without anyone having been aware of the possible construction, now placed on such choice of location, stemming from the original form of the language in 1919, fifty-one years earlier, or the procedural code revision in 1927, forty-three years earlier.
While enlightening, the forty-three-/fifty-one-year "prehistory,” long before the 1970 enactment, has little bearing on the question at hand. What should be determinative is what the Legislature intended in 1970. One can be sure that no member of the 1970 Legislature was aware of the forty-three-/fifty-one-year "prehistory” related in the majority opinion.
While the Legislature could have been clearer, and the "in accordance with subsection (b) of this section” clause lends support to the majority’s conclusions, since the first clause of subsection (b), providing for the entry of an order of discharge, gives life to the language added in 1970 in all cases without regard to the form of the "bail or bond,” the conclusion that the 1970 Legislature intended that the added language apply only to bail or bond provided by the deposit of cash, checks, or government securities, and not to a *339surety or other bond, or to so distinguish between such forms of collateral, has not been justified.14
The emphasized words were added:
If such bond or bail be forfeited, the court shall enter an order upon its records directing, within 45 days of the order, the disposition of such cash, check or security, and the treasurer or clerk, upon presentation of a certified copy of such order, shall make disposition thereof. The court shall set aside the forfeiture and discharge the bail or bond, within 1 year from the time of the forfeiture judgment, in accordance with subsection (b) of this section if the person who forfeited bond or bail is apprehended and the ends of justice have not been thwarted and the county has been repaid its costs for apprehending the person. [MCL 765.15(a); MSA 28.902(a).]
The opinion continues: "in lieu of the more typical surety bond.” Ante, p 316.
Today, typically, release is on personal recognizance. It appears that the second most typical or common means of securing a defendant’s release is the posting of ten percent of the amount of bail 'set by the magistrate.
The majority states that the forfeiture/set-aside provision applies where cash, certified check, or government securities are deposited with the clerk of the court. The deposit may be with "the clerk of the court, if under bond, or with the treasurer of the county, city, village or township within which the bail or bond is to be furnished or, in any case, with the state treasurer.” MCL 765.13; MSA 28.900.
"[Bjonds or bail of other character required or permitted by law” were developed at common law before the enactment of 1919 PA 332, with little structure in the statutes until the enactment in 1927 of the Code of Criminal Procedure. Then, it appears, for the first time the common law and such statutory provisions as had been enacted were, for the most part, pulled together and enacted as chapter V.
It expended $6,500 in doing so.
People v Pavlak, 99 Mich App 190; 297 NW2d 878 (1980).
People v Johnson, 72 Mich App 702; 250 NW2d 508 (1976).
People v Evans, 168 Mich App 654; 425 NW2d 209 (1988).
Section 15, as originally enacted as part of 1919 PA 332, was concerned only with, again referring to the language of the title of that act, the "furnishing and acceptance of cash, certified checks or certain obligations of the United States government or of municipal corporations in lieu of bonds or bail of other character required or permitted by law.” (Emphasis added.)
Section 15(a) of the Code of Criminal Procedure continues that concept, stating that "[i]f such bond or bail be forfeited, the court shall enter an order upon its records directing . . . the disposition of such cash, [certified] check or security [i.e., the United States government or municipal bonds].” Section 15(b) continues the concept, speaking of the return of the cash, check, or security "[i]f such bond or bail be discharged.”
Ante, p 330.
Ante, p 326.
Ante, pp 329-330.
Ante, p 330.
The first clause of the language added in 1970 states that the court shall set aside the forfeiture reflected in the forfeiture judgment "and discharge the bail or bond” (emphasis added) if within one year from the date of the forfeiture judgment "the person who forfeited bond or bail” is apprehended, the ends of justice have not been thwarted, and the county has been repaid its costs for apprehending the person.
The added language also states that the setting aside shall be "in accordance with subsection (b) of this section,” which provides: "If such bond or bail be discharged, the court shall enter an order to that effect with a statement of the amount to be returned to the depositor. Upon presentation of a certified copy of such order, the treasurer or clerk having such cash, check or security shall pay or deliver the same to the person named therein or to his order.” MCL 765.15(b); MSA 28.902(b).
To be sure subsection (b) provides for a statement "of the amount to be returned to the depositor” (emphasis added), and that the treasurer or clerk "having such cash, check or security shall pay or deliver the same to the person named therein or to his order.” (Emphasis added.)
Subsection (b) does literally appear to contemplate the return of the very check or security (cash being fungible) deposited. But that would not be possible if, after the forfeiture judgment and before a set-aside order is entered, the check or security has been turned into cash. Thus, that portion of subsection (b) cannot literally be applied where the check or security has been turned into cash.
And clearly subsection (b) cannot be applied if the county had collected on a personal recognizance or from a surety on the forfeiture judgment. (In the instant case, the county had not collected on the forfeiture judgment before the defendant was apprehended.)
That portion of subsection (b) which provides that "[i]f such bond or bail be discharged” (emphasis added), the court shall "enter an order to that effect,” can be applied to any set-aside order whether the defendant’s release from custody was obtained by the furnishing of a personal recognizance, a surety or other bond, cash, a certified check, or government securities.