The opinion
V. J. Brennan, J.
(concurring in part, dissenting in part). We concur with Judge Cavanagh’s opinion except that portion holding MCL 765.26; MSA 28.913 unconstitutional.
Judge Cavanagh bases his opinion on "a balancing process” between the liberty interests "of the bailed defendant” and the state’s interest in "rearrest” and holds that the bailed defendant is enti *565 tied to some due-process protections. What his opinion fails to weigh in the balance is the private nature of a bail contract and the bondsman’s interest therein.
A bail-bond arrangement essentially places the principal (bailed defendant) in the custody of the surety (bail bondsman) thus imposing on the surety the obligation and responsibility to produce the principal at various court proceedings. At common law the surety had the right to surrender the principal at any time to the state and thus discharge the obligation. No process was ever necessary to authorize the arrest of the principal by the surety. Anno: Surrender of principals by sureties on bail bond, 3 ALR 180 , supplemented by 73 ALR 1369 . This common-law rule was expressed and given effect by the United States Supreme Court in Taylor v Taintor, 83 US (16 Wall) 366, 371-372; 21 L Ed 287 (1873), as follows:
"When bail is given, the principal is regarded as delivered to the custody of his sureties. Their dominion is a continuance of the original imprisonment. Whenever they choose to do so, they may seize him and deliver him up in their discharge, and if that cannot be done at once, they may imprison him until it can be done. They may exercise their rights in person or by agent. * * * The seizure is not made by virtue of new process. None is needed. It is likened to the rearrest by the sheriff, of an escaping prisoner. [Citations omitted.] In Anonymous, 6 Modern [P 231] it is said: 'The bail have their principal on a string, and may pull the string whenever they please, and render him in their discharge.’ ”
See also Carlson v Landon, 342 US 524, 547 ; 72 S Ct 525 ; 96 L Ed 547 (1952), United States v Goodwin, 440 F2d 1152, 1156 (CA 3, 1971), Fitzpatrick v *566 Williams, 46 F2d 40 (CA 5, 1931), Ex Parte Salinger, 288 F 752 (CA 2, 1923).
This conception of the bail-bond contract has not been lost to the antiquity of the 19th century. In the recent case of Allied Fidelity Corp v Comm of Internal Revenue, 572 F2d 1190, 1193 (CA 7, 1978), the court cited Taylor, supra, for the broad powers of a surety on a bail contract and further pointed out that although an accused may be at large due to bail, "in contemplation of law he (the accused) remain[s] in custody”.
In Outzs v Maryland National Ins Co, 505 F2d 547, 551 (CA 9, 1974), the court quoted with approval the following from Fitzpatrick v Williams, supra:
"The right of the surety to recapture his principal is not a matter of criminal procedure, but arises from the private undertaking implied in the furnishing of the bond. * * * It is equally true that the surety, if he has the right, is not required to resort to legal process to detain his principal for the purpose of making surrender.”
The statute under attack in the present case represents the State of Michigan’s return to the common-law rights and liabilities on a bail-bond contract. The essence of the bail-bond contract is a private undertaking between the bondsman and the bailed defendant imposing rights and obligations running both ways. The bondsman’s right to recapture and surrender the bailed defendant represents a significant factor in the bondsman’s undertaking. The bondsman’s authority to surrender does not directly affect the bailed defendant’s right to bail since the latter is still free to post bond or to employ another surety for that purpose. We are not unmindful that economic realities may pre *567 elude the surrendered defendant from posting his own bond, but that factor does not warrant the abrogation of the surety’s rights on the private contract.
It is noted that the surety’s function on the bail-bond contract operates to relieve the state from policing court attendance of bailed defendants and thus furthers the state’s interests. In addition, state regulation of bail-bond practices protects against abuses of the system. In balancing the interests of the various parties, taking into account the minimal effect of surrender on the bailed defendant’s right to bail, we find the surety’s right to surrender not offensive to due process. We hold MCL 765.26; MSA 28.913 constitutional and do not enjoin its employment.
D. E. Holbrook, P.J. concurs.