I agree with the reasoning and with the conclusions reached in the principal opinion. *Page 1106
[5] Whether in the penal amount of one dollar or one million, bail can have only one purpose. Such purpose must be to compel the appearance of an accused for trial, to the end that justice may be administered. The principal obligation of a recognizance is that accused appear at the place and time therein set out. While sureties in a recognizance are under the same duty as the officer who would otherwise imprison an accused, the purpose of bail is not to enrich the state nor to penalize sureties. Its object can only be to insure appearance for trial. None other.
[933] On this appeal it stands conceded by all that the appellants, the Missouri officials and the Federal officials in Missouri did all things they could have legally done to secure the appearance in the Missouri court of the principal named in the recognizance. Nothing to that end was left undone.
[6] While it is not my view that the omission or refusal to act on the part of the officials of an asylum state relieves the sureties upon a recognizance as a matter of course (and I do not read the principal opinion as so ruling), I am in accord with the ruling in the principal opinion that Section 3973 of the Statute does vest the trial court with a judicial discretion which he may exercise, even where the accused is not produced in court. That the statute does give the trial court such a discretion is affirmatively ruled in the principal opinion. I see no other question in this case.
Assume, as it is argued, that it has been long established and well settled by the case made law upon the subject, that sureties are to be excused only where the appearance for trial of the principal named in a recognizance is prevented by (1) act of God, (2) act of law, (3) act of obligee, or (4) act of a public enemy. It seems to me that our statute is much broader than the case made law because it uses the words "for cause shown". Our statute does not set out nor does it limit the excusing of the surety to the four instances above.
In what sense was "for cause shown" intended to be understood? Does it vest a discretion? To what extent may judicial discretion operate, what are its limitations, and does it comprehend granting any relief on grounds of justice and right? The answer to these questions resolves the only issue which I see upon this appeal.
In this character of statute the words "for cause shown" must have a definite significance. The statute deals with circumstances and sets out the procedure under which a recognizance may be forfeited and collected, and provides for remission of the penalty "for cause shown". Providing for remission "for cause shown", those last quoted words mean something. In my view they are intended to include circumstances under which the trial court may make a contrary finding, and, in whole or in part, excuse the surety from the penal obligation of the bond. But the statute, by failing to set out the facts or circumstances which may excuse the surety plainly vests *Page 1107 the court with discretion to determine what facts and what circumstances shall excuse sureties on the penal obligation of the bond. The statute provides for judgment, for execution and collection of the penal amount of the bond, "unless remitted by the court for cause shown". What shall constitute "cause" for remission is left to the trial court's judicial discretion. An abuse thereof is reviewable on appeal.
In the first twenty-nine words the statute sets out the circumstances under which the court "must" proceed. The court "must" direct a certain entry "upon its minutes". Thereupon, as a matter of law "the recognizance is forfeited". The order forfeiting the bond is interlocutory only. The court was then required to issue a scire facias "to determine whether or not said interlocutory order should be made absolute". State v. Wynne et al., 181 S.W.2d 781. It is upon the hearing to make the interlocutory order absolute that cause may be shown.
[7] Legal writers have variously defined "judicial discretion". It is commonly used in the sense defined in 1 Bouv. Law Dict., Rawles Third Rev., page 884, as "The power exercised by courts to determine questions to which no strict rule of law is applicable but which, from their nature, and the circumstances of the case, are controlled by the personal judgment of the court". "It does not mean a wild self-willfulness." Faber v. Bruner, 13 Mo. 541, 543. "In the trial of a case questions at times arise to which no strict rule of law is applicable, but which from their nature and surrounding circumstances require the judgment of the court. These questions are to be determined by the court exercising its judicial discretion to further the ends of justice. Stated in general terms, `judicial discretion' means sound discretion, exercised not arbitrarily or willfully, but with just regard to what is right and equitable under the circumstances and the[934] law." Strzebinska v. Jary (R.I.), 193 A. 747, 748, 749. "By judicial discretion is meant sound discretion guided by law. It does not mean an arbitrary discretion. 9 Am. Eng. Ency. of Law (2d Ed.) 473; 14 Cyc. 384. `Judicial power is never exercised for the purpose of giving effect to the will of the judge — always for the purpose of giving effect to the will of the Legislature; or, in other words, to the will of the law.' Osborn v. United States Bank, 22 U.S. (9 Wheat.) 738, 6 L. Ed. 204. Deciding what is just and proper under the circumstances of a case is such judicial discretion. In all cases courts must exercise a discretion, in the sense of being discreet, prudent, and exercising cautious judgment. Murray v. Buell, 74 Wis. 14, 41 N.W. 1010; Abbott v. L'Hommedieu, 10 W. Va. 677. A judicial discretion, in practice, is `the equitable decision of what is just and proper under the circumstances.'" People v. Pfanschmidt (Ill.), 104 N.E. 804, 816. Judicial discretion can never be an arbitrary, vague or *Page 1108 fanciful thing controlled by mere caprice or by the humor of the moment. It is a discretion to do in any case what the ends of justice demand; it is the liberty to act as a judge should act.
It is my view that the statute in question vests the trial court with jurisdiction and that within legal limitations that court has judicial discretion to hear and consider any proper proof adduced upon a hearing to make absolute the interlocutory order for forfeiture of the recognizance. I concur in the remand to the Circuit Court.