
    IN THE MATTER OF THE APPLICATION OF FRED W. LAW FOR A WRIT OF HABEAS CORPUS.
    No. 1371.
    Original.
    Heard December 30 and 31, 1921, and January 3, 1922.
    Decided January 18, 1922.
    Coke, C. J., Kemi> and Edings, JJ.
    
      Bail—surety company.
    
    By virtue of section 54, Act 115, S. D. 1917, every surety company which has complied with the prescribed regulations -and obtained a license to do business is qualified to become surety upon any bond authorized or required by the laws of the Territory.
    
      Same—same—oumership of property not required.
    
    The provisions contained in sections 3741 and 3742 R. L. 1915 making it necessary for the surety on a bail bond to own property within the Territory are abrogated by Act 115 S. L. 1917 in so far as those provisions apply to licensed surety companies.
   OPINION OP THE COURT BY

COKE, C. J.

Tbis proceeding is before tlie court upon a writ of habeas corpus issued out of this court upon the petition of Fred W. Lair, a person claiming to be imprisoned without warrant of law. The facts of the proceeding are as follows : On December 5, 1921, the petitioner Law was convicted in the circuit court of the first judicial circuit of the Territory upon an indictment charging him with the crime of embezzlement. On the 9th day of December, 1921, the petitioner was by the court sentenced to imprisonment in the Oahu prison for the term of one year. Petitioner thereupon gave notice of his intention to appeal. from the rerdict and judgment of conviction to the supreme court of tlie Territory and tbe circuit judge fixed tbe amount of bis bail pending tbe appeal in tbe sum of |2000. Thereafter petitioner executed a bond in tbe amount fixed with tbe United States Fidelity & Guaranty Company, a corporation organized and existing under tbe laws of tbe State of Maryland, as surety. Tbe circuit judge refused to accept tbe bond and tbe petitioner instituted this proceeding. Mr. Jarrett, tbe bigb sheriff, made return to tbe writ setting forth that be bolds tbe petitioner under a mittimus duly issued out of tbe circuit court.

Tbe decision of tbe circuit judge upon tbe sufficiency of tbe bond is not before us and we are left largely to conjecture respecting tbe reasons which prompted tbe circuit judge in bis refusal to approve the bond. It is, however, stipulated by counsel that one of tbe reasons which tbe circuit judge advanced for bis action in refusing to approve tbe bond Avas that it did'not appear that tbe surety company oAvned any property Avithin tbe Territory of Hawaii. If this were the sole reason actuating tbe judge in bis disapproval of the bond we Avould be compelled to hold that error bad been committed and that tbe petitioner is entitled to tbe relief sought.

Formerly the laAV Avas that no person could be received as a surety for tbe appearance of a party accused avIio did not oayu or possess property either real or personal within tbe Territory of double tbe value of tbe amount of tbe bail bond and where a single surety executed a bond it Avas necessary that be possess unincum-bered real property within tbe Territory of double tbe value of tbe amount of tbe bond. (See Secs. 3741, 3742 R. L. 1915.) By subsequent legislation these requirements were modified and a surety company, either domestic or foreign, could become surety upon bail bonds if it bad received from tbe insurance commissioner a certificate of authority to transact business witliin the Territory and in case of a foreign insurance company it was required to file a bond in the sum of |2500 with condition that the surety on such bond would be responsible in the amount of said bond for all judgments, decrees or orders given, made or rendered against the principal on said bond by any court of the Territory for the payment of money. It appears from the record that the United States Fidelity & Guaranty Company has complied with all of the requirements prescribed by the laws of the Territory and has given the bond required and has been duly granted a certificate of authority by the insurance commissioner to transact insurance business in Hawaii. By virtue therefore of section 54 of Act 115 S. L. 1917 the United States Fidelity & Guaranty Company was qualified to become surety on the bond required of the petitioner. We think it is clear that by the language of the insurance law just referred to it Avas intended to qualify every surety company which has complied Avith the regulations to become surety upon, any bond authorized or required by the laws of the Territory and that the provisions contained in sections 3741 and 3742 R. L. 1915 making it necessary for the surety to OAvn property AAÚthin the Territory are abrogated by Act 115 S. L. 1917 in so far as those provisions apply to surety companies.

The circuit judge, however, may have based his action upon other grounds. A review of the record discloses that the bond in question Avas executed by "the surety company by Herman Luis, who assumes to be its attorney-in-fact, .There is a power of attorney in the record before us in which the United States Fidelity & Guaranty Company designates Philip L. Lee, A. N. Campbell and R. W. Shingle of Honolulu to act as its attorneys-in-fact in this Territory. There is no showing whatsoever that Mr. Luis possessed authority to execute the bond in the name of tbe company and for angbt that we know tbe circuit judge may bave assigned tbis fact as one of bis reasons for refusing to approve tbe bond.

G-. K. French for petitioner.

H. E. Stafford, First Deputy City and County Attorney, for respondent.

In view, therefore, of tbe state of tbe record we must presume that tbe action of tbe court below was supported by tbe facts presented to it.

Our conclusions are that the writ prayed for should be denied and tbe petitioner remanded to tbe custody of the high sheriff and it is so ordered.  