The opinion
O’Hara, J.
(dissenting in part). Judge Levin reaches the result which I deeply wish I could reach also. It is socially desirable and perhaps urgently needed.
My only difficulty is that I cannot, in effect, amend a statute by interpreting it as I think the legislature should have enacted it.
The precise point over which Judge Levin and I divide is the nature of the duty and the responsibility which I believe the involved statute imposes *323 upon tlie judge and the judicial discretion which it vests in him.
My esteemed colleague reads the statute to mean that the only function of the judge is to set the amount of the bail. Then, and thereupon, he concludes the accused has a right to deposit ten percent of that amount with the clerk of the court (not less than $10), or alternatively with any sheriff or other peace officer, and be released instanter.
To me the whole thrust of the statute, including its object as contained in its title, imports a further judicial responsibility. The title of the act, as is constitutionally required, prescribes the “kind” as well as “the amount of security required”.
Surely it is difficult to read out of this unequivocal language the right of the judge to require a surety. To do so renders nugatory the definition of “surety” which the statute contains.
Thus, it is my conclusion that under this statute the judge may in his discretion: (1) release the accused upon his own recognizance; (2) require the accused to execute his own bond without a surety or sureties; or (3) require the accused to execute the bond together with a surety, as that term is defined in the act.
When, and if, either of the latter two conditions is fulfilled, then, and in that event, I agree with my colleague that the accused has an absolute right to deposit the ten percent with the clerk, sheriff, or other peace officer who is restraining him, and thereupon be entitled to release as the statute clearly provides. It is not for us in the judiciary to amend it by “interpretation”. It would take about five minutes of legislative time to amend the act to permit the result Judge Levin’s opinion authorizes. That is what was done in Illinois; that, if our legis *324 lature chooses to do so, is what should be done in Michigan.
I am not troubled by the objection that this is not a proper class action. I hold with Judge Levin that it is.
Normally, this much is all I believe should be written. I cannot close my eyes to the claim that all the judges of the Traffic and Ordinance Division of the Recorder’s Court have adopted and do enforce an undeviating policy of requiring a professional surety in the nature of a corporate bonding company in every case in which a bond with a surety is required.
Unfortunately, I have no settled record before me which either affirms or denies this contention. Because of the pressing nature of the problem I shall do what I dislike to do, and commit myself judicially upon a hypothesis for decisional purpose.
I hold that if the term “one surety” means in the Traffic and Ordinance Division a corporate professional surety, such meaning is a clear abuse of the very judicial discretion, the exercise of which I write to uphold. A “surety” as I read the statute may be any financially responsible person.
I would modify Judge Martin’s order to hold that when the conditions of setting bond in any one of the methods permitted by statute are followed, the deposit of ten percent thereof entitles an accused to his release.
Since my opinion herein is a minority holding, I cannot, of course, impose its rationale on the Traffic and Ordinance Division. At least the judges of that court are aware of my judicial attitude toward a practice that, it is represented to us without factual support, obtains in their court.
Were I in the majority, I would hold further that the judges of the involved court be authorized to *325 intervene herein to the extent of supplying this panel with a duly authenticated abstract from their records establishing what, in fact, the practice in their court really is.
Because the point is neither raised nor briefed, I do not address myself to the question of whether or not the whole matter of the fixing of bail is not indeed procedural and thus a judicial function reserved by the constitution to the Supreme Court.
If defendant herein has furnished bond in the manner required by statute as I have outlined it herein, upon deposit of ten percent thereof he is entitled to be released, as are all those similarly situated under the class action. Failing such release, mandamus should issue.
No costs.