Citizens for Pretrial Justice v. Goldfarb

415 Mich. 255 (1982)

327 N.W.2d 910

CITIZENS FOR PRETRIAL JUSTICE v. GOLDFARB

Docket No. 63739, (Calendar No. 3).

Supreme Court of Michigan.

Argued October 7, 1980.

Decided December 20, 1982.

Kelman, Loria, Downing, Schneider & Simpson (by Robert W. Howes) for plaintiffs.

Zemke, Hirschhorn & Tukel, P.C., for defendants Goldfarb.

KAVANAGH, J.

This complex class action was filed in November, 1974, by Citizens for Pretrial Justice and five named individuals to challenge the legality of the business practices of the defendants-appellants and cross-appellees Charles and Irwin Goldfarb (hereinafter referred to as defendants) and defendant Mitchell, owners of bail bond agencies.[1] The present plaintiffs-appellees and cross-appellants (hereinafter referred to as plaintiffs) are three named individuals who were permitted to intervene by the trial court after the suit was filed.[2]

I. PROCEDURAL HISTORY OF THE CASE

The plaintiffs raised three substantive issues: 1) *263 Whether the defendants violated MCL 750.167b(3); MSA 28.364(2)(3)[3] by charging a fee greater than the 10% statutory maximum (Count I); 2) Whether the defendants violated MCL 750.167b(3); MSA 28.364(2)(3) by requiring collateral security which, either taken alone or together with the fee, exceeded the 10% limit (Count II); and 3) Whether MCL 765.26; MSA 28.913,[4] which allows bondsmen to unilaterally revoke the bail bond and re-arrest the principal, unconstitutionally deprives such individuals of liberty without due process of law (Count III). The plaintiffs sought a declaratory judgment on the merits, entry of a permanent injunction to prevent further overcharges and revocations, and damages.

After hearing argument on the issues raised in the complaint and in numerous motions filed by the parties, the trial court issued an opinion on October 1, 1975, and order on November 21, 1975. In addition to allowing the intervention and substitution *264 of the presently named plaintiffs, the opinion and order (1) defined and certified the class action pursuant to GCR 1963, 208;[5] (2) determined that William H. Jones, Barbara Cartwright, Edward Attee, and Charles Holt were proper parties and would fairly insure the adequate representation of all members of the class; (3) found for the plaintiffs on the merits; (4) preliminarily enjoined defendants from taking premiums or collateral for a bail bond which together would exceed 10% of the face value of the bond for any bond written in Michigan and posted in a Michigan criminal case; and (5) preliminarily enjoined the defendants from revoking any bail bond posted in a Michigan criminal case and arresting their principal without prior court hearing.

On appeal, the Court of Appeals, addressing the procedural issues, (1) affirmed the trial court's certification of this action as a class action; (2) held that among plaintiffs Cartwright, Attee, and Holt, there was at least one proper representative of the class for each count of the complaint; and (3) redefined the class, finding that the applicable *265 statute of limitations on plaintiffs' claims was three years and not six years.[6]

Addressing the merits of plaintiffs' claims, the Court of Appeals affirmed the trial court's decision that defendants could not, consistent with MCL 750.167b(3); MSA 28.364(2)(3), charge bail bond premiums which exceed 10% of the face value of the bond or take collateral of a value, either alone or together with the premium, which exceeds 10% of the face value of the bond. The Court of Appeals reversed the trial court's decision and held that MCL 765.26; MSA 28.913, which permits a bail bondsman to summarily revoke bond and re-arrest his principal, is constitutional. The Court of Appeals also held that the preliminary injunctions were erroneously issued.

The parties have appealed and cross-appealed the substantive issues involved in this litigation to our Court. In addition, the parties have appealed the definition of the class as set forth by the Court of Appeals, and the defendants have appealed that *266 Court's determination that plaintiffs Cartwright, Holt, and Attee may properly represent the class.

After a thorough review of the briefs and record, we (1) hold that MCL 750.167b(3); MSA 28.364(2)(3), unambiguously limits the fee a bondsman may charge to 10% of the face value of the bond; (2) hold that MCL 750.167b(3); MSA 28.364(2)(3) was not intended to limit a bondsman's right to take collateral security; (3) redefine the class to include all those who within six years prior to the filing of the complaint or subsequent thereto purchased a bond from defendants and paid fees exceeding 10% of the bond's face value; (4) hold that Barbara Cartwright and Charles Holt may properly represent the class; (5) hold that Edward Attee may not represent the class because he is not a member of it; (6) vacate the lower courts' holdings regarding the constitutionality of MCL 765.26; MSA 28.913 because, there being no plaintiff before them with standing to raise it, the issue was not properly before them.

II. FACTS

A

On September 16, 1974, Barbara Cartwright purchased a bail bond from the Goldfarb Bonding Agency to secure the pretrial release of Buford Miller. She was charged $55 by the Goldfarb Bonding Agency for the $500 bond and pledged collateral of $250. After Buford Miller's case was resolved in Detroit Recorder's Court, the collateral was returned to Barbara Cartwright. In her motion to intervene, Barbara Cartwright alleged that because of her personal knowledge of incidents of revocation of bonds by agents of International *267 Fidelity Insurance Company, for which the defendant Goldfarb Bonding Agency is a district agent, she was afraid that defendants would revoke the bond of Buford Miller without any hearing, arrest him, and deliver him to the county jail.

B

On February 22, 1970, Charles Holt purchased a bond from the Goldfarb Bonding Agency to secure the pretrial release of Larry Powell. Allegedly, the day after Mr. Powell's release, he and Mr. Holt were summoned to the office of the defendants to sign some papers. Instead, Mr. Powell's bond was revoked. He was arrested and taken to the Wayne County jail.[7] Mr. Powell later obtained his pretrial release through another bonding agency.

C

On March 24, 1974, Edward Attee was arrested in New York. Bond was set at $35,000. In April, 1974, Willie Harris purchased a bond at the defendant's office in Detroit, paying a fee of $5,500 to obtain Mr. Attee's pretrial release.[8] On December 19, 1974, all charges pending against Mr. Attee in New York were dismissed. At the time Mr. Attee's motion to intervene was filed, the prosecutor's appeal was pending in New York courts. Because *268 he did not have sufficient funds to pay a second-year premium which was due on April 16, 1975, Mr. Attee alleged that he believed the defendants would revoke his bond and take him into custody.[9] He has not alleged that this occurred. At present, Mr. Attee is not subject to a bond executed by the defendants.

III. DEFINITION OF THE CLASS AND REPRESENTATIVES OF THE CLASS

The plaintiffs argue that the Court of Appeals erred when it defined the class by reference to the three-year statute of limitations which governs actions to recover for injuries to persons and property (MCL 600.5805[7]; MSA 27A.5805[7]), rather than the six-year statute of limitations which governs all other personal actions (MCL 600.5813; MSA 27A.5813).[10]

Specifically, plaintiffs allege that the claims for statutory overcharges do not involve injuries to persons or property, but instead are claims for pecuniary loss. Plaintiffs' reliance on this distinction is misplaced. Pecuniary losses are an element of damages that may flow from an injury to persons or property or breach of contract. The suffering of pecuniary damages does not determine the applicable statute of limitations.

At the time this action was commenced, MCL 600.5805; MSA 27 A. 5805 provided:

"No person may bring or maintain any action to *269 recover damages for injuries to persons or property unless, after the claim first accrued to himself or to someone through whom he claims, he commences the action within the periods of time prescribed by this section.

"(1) The period of limitations is 2 years for actions charging assault, battery, and false imprisonment.

"(2) The period of limitations is 2 years for actions charging malicious prosecution.

"(3) The period of limitations is 2 years for actions charging malpractice.

"(4) The period of limitations is 2 years for actions against sheriffs charging misconduct or neglect of office by themselves or their deputies.

"(5) The period of limitations is 2 years after the expiration of the year for which a constable was elected for actions based on his negligence or misconduct as constable.

"(6) The period of limitations is 1 year for actions charging libel or slander.

"(7) The period of limitations is 3 years for all other actions to recover damages for injuries to persons and property."

Section 5813 provides:

"All other personal actions shall be commenced within the period of 6 years after the claims accrue and not afterwards unless a different period is stated in the statutes."

The present case does not involve an injury to person or property within the meaning of § 5805(7). That statute applies to traditional, primarily common-law, torts. See, e.g., Rhule v Armstrong, 384 Mich 709; 187 NW2d 223 (1971); Coates v Milner Hotels, Inc, 311 Mich 233; 18 NW2d 389 (1945). The injury complained of by these plaintiffs, unlike those injuries to which this three-year limitation has been applied, is not a traditional *270 tort. Accordingly, the residual six-year statute of limitations governing all other personal actions, § 5813, applies to the present case. See, e.g., Metzen v Dep't of Revenue, 310 Mich 622; 17 NW2d 860 (1945); Walper v Knowles, 295 Mich 687; 295 NW 363 (1940).

The defendants assert that Charles Holt may not represent the class because he is not a member of it. We disagree. The facts indicate that Mr. Holt purchased a bond on February 22, 1970. This bond was revoked on February 23, 1970. This action was filed in November, 1974. Any cause of action Mr. Holt may have is subject to the six-year statute of limitation. MCL 600.5813; MSA 27 A. 5813.

The defendants assert that Barbara Cartwright may not represent the class regarding Count II (illegal taking of collateral) because at the time she filed her motion to intervene, her collateral had been returned to her. The return of the collateral to plaintiff Cartwright would not preclude an action for damages during the time the collateral was illegally held (e.g., interest). We hold, however, that Barbara Cartwright may not represent a class regarding the illegal taking of collateral because in Part V of this opinion we determine that MCL 750.167b(3); MSA 28.364(2)(3) was not intended to prohibit a bondsman from taking collateral security. Therefore, on remand, there is no cause of action regarding this issue.

The defendants challenge Barbara Cartwright's right to represent the class regarding Count III (deprivation of due process during bond revocation). Plaintiff Cartwright has not alleged that she has ever had a bond revoked or suffered an injury from a bond being revoked, and so does not have an individual cause of action for the damages being sought. She may not represent the class *271 seeking damages for unconstitutional revocation of a bail bond because she is not a member of the class. See GCR 1963, 208.1; Grigg v Michigan National Bank, 405 Mich 148, 167, 170; 274 NW2d 752 (1979).

The plaintiff alleged that she feared the defendant would revoke the bond she purchased for Buford Miller. The general rule is that one person may not raise the denial of another person's constitutional rights. Mary v Lewis, 399 Mich 401, 416; 249 NW2d 102 (1976). We are satisfied that under the facts of this case there is no reason to digress from the general rule. At the time Barbara Cartwright signed her motion to intervene on March 31, 1975, Buford Miller was no longer subject to the bond, his case having been resolved in the Recorder's Court on November 29, 1974. Apparently, the defendants never revoked Miller's bond while he was subject to it.

The defendants have not challenged Barbara Cartwright's right to represent the class regarding Count I (statutory overcharges). We affirm the determination of the Court of Appeals that she may represent the class regarding this issue.

The defendants also challenge the right of Edward Attee to represent the class. The pertinent facts indicate that Willie Harris purchased the bond which was posted on Mr. Attee's behalf. Mr. Harris allegedly paid fees in excess of the statutory maximum.

The trial court included within the class "[a]ll those for whom the defendants posted bond in return for fees and collateral in excess of ten (10%) percent of the face value of the bond posted within six years from the date of filing of the complaint herein". (Emphasis added.) The Court of Appeals included within the class "all persons for *272 whom a bond was purchased from defendants within three years prior to the filing of the complaint, or subsequent thereto, and for which purchase defendants charged" fees exceeding 10% of the bond's face value. (Emphasis added.) This was error.

In order to recover damages for a violation of a statutory duty, the plaintiff must belong to the class for whose protection the law was passed and must suffer an injury the statute was designed to prevent, Bolden v Grand Rapids Operating Corp, 239 Mich 318, 326-328; 214 NW 241 (1927). The injury that has been alleged in this case is the charge of a fee in excess of the statutory maximum. Only persons who have paid such a fee are entitled to bring an action to recover the excessive charge. The persons "for whom" the bond was purchased have suffered no damage because of the excessive fee.

We, therefore, redefine the class to exclude those persons for whom the bond was purchased absent a showing that such person directly or indirectly paid the fee. We hold that Mr. Attee is not a member of the class because he has not established that he suffered the injury resulting from the allegedly excessive fee paid by Willie Harris.

On appeal to this Court, defendants for the first time argue that Attee may not claim the protection of Michigan law because the contract to post bond was performed in New York and thus New York law governs. Without the benefit of lower court discussion, we decline to consider this argument.

The question remains whether Mr. Attee may represent the class on any other issue. He has not alleged that he gave the defendants any collateral *273 security, so he may not raise that issue. Mr. Attee has alleged that he believed that the defendants would revoke his bond because he could not pay the second-year premium.

Mr. Attee filed his motion to intervene on April 15, 1975. The premium for the second-year premium was due on April 16, 1975. Mr. Attee has not shown that the bond was revoked by the defendants. He is no longer subject to the bond.

Constitutional questions are not dealt with hypothetically or in the abstract. We conclude that Mr. Attee did not show that he had been deprived of due process because of a bond revocation or that he was in immediate danger of such injury. He merely showed that his bond was in danger of lapsing for nonpayment of the second-year premium. Consequently, Mr. Attee did not have standing to contest the constitutionality of the bond-revocation statute. We hold, therefore, that Mr. Attee is not a proper plaintiff in this action and may not represent the class.

To summarize, we have found that Barbara Cartwright and Charles Holt are the only proper plaintiffs in this action. They have a cause of action for fees paid to purchase a bail bond from the defendants which exceed the statutory maximum. Because of this and our other findings, we necessarily redefine the class as follows:

All those who, within six years prior to the filing of the complaint, or subsequent thereto, purchased a bond from the defendants and paid fees exceeding 10% of the bond's face value.

Barbara Cartwright and Charles Holt may represent this class.

*274 IV. CONSTITUTIONALITY OF THE BOND REVOCATION STATUTE

The plaintiffs seek a declaratory judgment that MCL 765.26; MSA 28.913, which allows a bondsman to unilaterally revoke a bail bond and rearrest the principal, is unconstitutional.

In the preceding section of this opinion we have determined that none of the plaintiffs have standing to raise this constitutional issue. We must, therefore, decline to pass on the constitutionality of the statute. We hold that it was error for the lower courts to address the constitutionality of MCL 765.26; MSA 28.913. Accordingly, we vacate that portion of the lower courts' holdings which deals with the constitutionality of the bond revocation statute.

V. INTERPRETATION OF MCL 750.167b(3); MSA 28.364(2)(3)

A. Excessive Fees

Plaintiff Cartwright alleges that the defendants violated MCL 750.167b(3); MSA 28.364(2)(3) by charging a fee of $55 to post a $500 bond. The statute provides in pertinent part:

"It shall be lawful to charge for executing any bond in a criminal case, but no person engaged in the bonding business, either as principal or clerk, agent or representative of another, either directly or indirectly, shall charge, accept or receive any sum of money or property, other than the regular prevailing fee for bonding, which shall not exceed 10% of the face value of the bond for a 12 month period or any part thereof, from any person for whom he has executed bond, for *275 any other service whatever performed in connection with any indictment, information or charge upon which the person is bailed or held."

The plaintiff asserts that the meaning of the statute is plain, and that according to its terms the defendants were entitled to a fee of $50, 10% of the $500 bond.

The defendants respond that the term "face value" is capable of two or more constructions. They contend that "face value" should be interpreted to mean the amount of the bondsman's risk.

The defendants theorize that since another statute increased their costs in the event of forfeiture by 10%,[11] they were entitled to charge the plaintiff 10% of their increased risk. In this case the amount of their risk was $550, so their fee should be $55.

The Court of Appeals applied the "plain meaning rule" and held that the term "face value" unambiguously means the amount of the bond. 88 Mich App 519, 550; 278 NW2d 653 (1979). We agree.

Under the "plain meaning rule", if the language of a statute is unambiguous, there is no room for judicial construction. Lansing v Lansing Twp, 356 Mich 641, 648-649; 97 NW2d 804 (1959). Like the statutory language in that case, the term "face value" is "clear, definite, and would be easily understood by even those not trained in the law" *276 to mean the value of the bond. Id., 649. There is no need for further judicial interpretation.

B. Taking of Collateral

In addition to paying a $55 fee, plaintiff Cartwright pledged $250 in collateral with the defendants. The plaintiffs assert that the defendants violate MCL 750.167b(3); MSA 28.364(2)(3) when they require collateral security which either taken alone or together with the fee exceeds 10% of the face value of the bond.

For convenience, we repeat the pertinent statutory language:

"It shall be lawful to charge for executing any bond in a criminal case, but no person engaged in the bonding business * * * shall charge, accept or receive any sum of money or property, other than the regular prevailing fee for bonding, which shall not exceed 10% of the face value of the bond for a 12 month period." (Emphasis added.)

This statute authorizes a fee for executing a bond in a criminal case and limits the amount of such a fee. The statute does not specifically provide that giving the bondsman a security interest in collateral is included within the 10% fee. We must, therefore, analyze the statutory language to determine the legislative intent. To do so, it is appropriate to look to the language and interpretation of analogous statutes. See 2A Sands, Sutherland Statutory Construction (4th ed), § 53.03, p 346.

The defendants cite to us several analogous statutes where language similar to that of the instant statute is used and the language has not been interpreted to prohibit the taking of collateral. For instance, MCL 493.13(4); MSA *277 23.667(13)(4), which is part of legislation regulating small loans by consumer finance companies in Michigan, provides in pertinent part:

"In addition to the charges provided for in this act, a further or other amount shall not be directly or indirectly charged, contracted for, or received except the lawful fees, if any, actually necessarily paid out by the licensee to a public officer, for filing, or recording, or releasing in a public office a financing statement, an instrument securing the loan, or both, and for noting or releasing a lien or transferring a certificate of title under Act No. 300 of the Public Acts of 1949, as amended". (Emphasis added.)

MCL 492.118(a); MSA 23.628(18)(a), part of the Motor Vehicle Sales Finance Act, limits the finance charges by an installment seller of an automobile as follows:

"A seller licensed under the provisions of this act may charge, contract for, receive, or collect a finance charge, as defined in this act, on any installment sale contract covering the retail sale of a motor vehicle in this state which shall not exceed the rates indicated". (Emphasis added.)

The limiting language in these statutes has not been applied to prevent the seller or lender from taking a security interest in collateral to secure the loan.

The statute regulating pawnbrokers and limiting their rates, MCL 446.209; MSA 19.589, also uses the terms charge and receive and contemplates the taking of collateral in addition to the rates charged.

"No pawnbroker or agent or employee thereof shall make a loan upon any deposit, pawn or pledge at a rate of interest and charge or receive therefor in excess of *278 the amounts provided for in this act." (Emphasis added.)

After reviewing the above statutes, we are satisfied that the Legislature did not intend to prohibit bondsmen from taking a security interest in collateral in addition to the 10% fee. Posting a bond for a fee is similar to loaning money and charging interest. Statutes regulating the latter contain limiting language similar to the language found in the statute limiting bondsmen's fees, and they do not prohibit the taking of collateral.

Accordingly, we reverse the judgment of the Court of Appeals on this point.

The decision of the Court of Appeals is modified in part, affirmed in part, reversed in part, and vacated in part. We remand to the Wayne Circuit Court for proceedings consistent with this opinion.

FITZGERALD, C.J., and WILLIAMS, LEVIN, and COLEMAN, JJ., concurred with KAVANAGH, J.

RYAN, J. (concurring in part and dissenting in part).

This class action challenges the legality of the practices of two bail bonding agencies. The procedural and factual history of this case is set forth in my brother's opinion, to which reference is invited. I am unable to agree with the portions of my colleague's opinion holding: (1) that a bail bondsman may receive collateral in addition to the 10% fee authorized by MCL 750.167b(3); MSA 28.364(2)(3), and (2) that the only person with standing to challenge an excessive bail bond fee is the person actually delivering the fee to the bondsman. I concur with the reasoning and result of the remainder of my brother's opinion.

*279 I

The lower courts correctly held that a bail bondsman may not charge, accept or receive any sum of money or property in excess of 10% of the face value of the bond. MCL 750.167b(3); MSA 28.364(2)(3):

"It shall be lawful to charge for executing any bond in a criminal case, but no person engaged in the bonding business, either as principal or clerk, agent or representative of another, either directly or indirectly, shall charge, accept or receive any sum of money or property, other than the regular prevailing fee for bonding, which shall not exceed 10% of the face value of the bond for a 12 month period or any part thereof, from any person for whom he has executed bond, for any other service whatever performed in connection with any indictment, information or charge upon which the person is bailed or held."

My brother's opinion allows the bondsman to charge, accept and receive money in excess of 10% if that additional money is labeled "collateral" or "security". In my view, such an interpretation is contrary to the plain language of the statute. While an argument can be made that the prohibition against "charging" over 10% is not violated when a bondsman takes collateral, he plainly does "accept or receive" money or property when collateral is taken.[1] If the collateral is in the possession of the bondsman, investment of the money for the *280 duration of the bond would result in the receipt of additional money or property for the bondsman and the correspondent loss of its use to the bond purchaser. Even a security interest in property possessed by the criminal defendant is "property"; if the bond should be forfeited and the collateral seized, the charge would clearly exceed 10% of the face value of the bond.

My brother finds support for the taking of collateral by analogizing to consumer usury statutes such as MCL 493.13(4); MSA 23.667(13)(4), MCL 492.118(a); MSA 23.628(18)(a), MCL 446.209; MSA 19.589. But the bail bonding statute is not merely a piece of consumer protection legislation; rather, it is designed to assure the fundamental constitutional right to reasonable bail. US Const, Am VIII; Const 1963, art 1, § 16. The statutes are not in pari materia and should not be construed as such.

In the consumer loan context, the borrower often utilizes the loan proceeds to purchase an item of personal property such as a car. In the bail bond context, the "borrower" purchases his freedom. In the former situation, the ability to repossess the car protects the lender. In the latter situation, the bondsman's risk is secured by his ability to arrest and deliver the defendant to the authorities. The security interest in the purchased property does not require additional wealth from the consumer, while the collateral required of a defendant does require additional financial resources. *281 A legislative and judicial recognition that some defendants will not have the resources to post their own bond led to acceptance of a bail bonding system costing the defendant only 10% of the face amount and still assuring his appearance when necessary.[2] Requiring collateral above and beyond the 10% maximum thwarts that legislative objective; granting a security interest in consumer goods purchased with a loan does not similarly discriminate against indigent persons.

In addition, if a lender takes possession of cash "collateral" as a condition precedent to loaning money at the maximum rate of interest, the usury statutes would be violated. Either the "collateral" would be viewed as an interest-free loan to the lender with the fair market value of the loan considered a hidden interest payment, or else the amount of the loan would be reduced by the amount of the collateral retained by the lender. Since interest payments would be based on the stated loan amount rather than the actual loan amount, the usury statute would be violated.

Finally, I agree with the lower courts' conclusion that the taking of excess collateral interferes with the judicial discretion and authority to set reasonable bail. In setting reasonable bail, the trial judge has concluded that the criminal defendant ought to be able to obtain pretrial release upon payment of, at most, 10% of that amount for *282 a surety bond. The sum total of reasonable bail plus a surcharge may well constitute excessive bail. McDermott v San Francisco Superior Court, 6 Cal 3d 693; 100 Cal Rptr 297; 493 P2d 1161 (1972). We are not persuaded by defendants' argument that trial judges are "well aware" of the practice of requiring collateral. The judge has no control over, or advance knowledge of, the amount of excess collateral the bondsman will require.[3] Further, conscientious trial judges attempt to set reasonable bail, not some less than reasonable amount based on the assumption that the bail bondsman will exact an undetermined surcharge. Hence, the judge cannot effectively exercise his or her discretion in making the crucial determination of the minimum amount of bail necessary to ensure a defendant's presence at judicial proceedings. Instead, that discretion is vested in the bondsman, who can arbitrarily require collateral security less than 100%, but in excess of the 10% fee. This construction of the statute would destroy the intent of the Legislature to provide an alternate system for meeting bail requirements where defendants do not own or have access to any significant amount of property.

II

The circuit court defined the plaintiff class as including persons who purchased bail bonds from the defendants or for whom such bail bonds were purchased. The defendants did not appeal that determination to the Court of Appeals, nor did they argue in this Court that the person for whom *283 the bail bond was purchased lacked standing to challenge the excessive fee charged. Indeed, the defendants refer to a bail bond as "a contract between a criminal defendant (or another who purchases a bail bond on his behalf) and a bail bondsman". Yet my brother feels obligated to decide sua sponte that the only person with standing to challenge an excessive bail bond fee is the person actually delivering the fee to the bondsman, absent a showing that the prisoner directly or indirectly paid the fee. I think the issue should not have been reached; but, having been reached and resolved, I am compelled to express my disagreement with its resolution.

The interests of the incarcerated individual and the bond purchaser are identical, since both seek to obtain the prisoner's release for a cost not in excess of the allowable statutory maximum. I cannot agree that persons "for whom" bail bonds are purchased are not damaged by illegal bail bond overcharges. In most, if not all, cases, the bond purchaser can properly be seen as an agent for the prisoner. The principle has been "well settled and elementary", at least since 1876, that a principal has a right to sue upon a contract made by his agent, "whether known to be such or not". Jenness v Shaw, 35 Mich 20, 21 (1876). The principle was affirmed in American Enameled Brick & Tile Co v Brozek, 251 Mich 7; 231 NW 45 (1930). As a unanimous Court put it in Grand Rapids Milk Producers Ass'n v McGavin, 295 Mich 477, 481; 295 NW 232 (1940):

"There is no question about the proposition that an undisclosed principal may claim the benefit of a contract, maintain an action thereon, and enforce any *284 remedies which might have been pursued by the agent himself".

A fortiori, a disclosed principal, as here, may also enforce his agent's rights and remedies.

Individual cases might arise in which the incarcerated person does not pay the bond "premium" either directly to the purchaser or indirectly, by considering the money paid by the purchaser to be a loan. If the bond purchaser expects and receives no repayment from the prisoner, it might be appropriate to allow the purchaser rather than the prisoner to collect the refund from any overcharge.[4] However, it is manifestly unjust to dismiss Mr. Attee from the lawsuit on the basis that he has failed to show that he directly or indirectly paid the bail bond fee. Neither the defendants nor any of the lower courts have suggested such a requirement. If the Court insists on sua sponte imposing a new barrier to recovery in this lawsuit, at the very least it should allow the plaintiff an opportunity to amend his pleadings in order to allege that he "directly or indirectly" paid the fee. Even under my colleague's analysis, the result should be a remand as to plaintiff Attee rather than outright dismissal.

Clearly the principal and the agent cannot both obtain a refund of an excessive fee, but any such double recovery can be easily avoided by the trial court in its administration of the class action. While the end result may well be the same under either approach, it would be less confusing to leave the class definition intact. Any dispute between the co-plaintiffs as to who "actually paid" the *285 excessive fee cannot absolve the defendants from liability. I would remand this case with instructions that either the purchaser or the person for whom the bond was purchased has standing to challenge an excessive bail bond fee, but that only one recovery should be allowed.

RILEY, J., took no part in the decision of this case.

NOTES

[1] Citizens for Pretrial Justice is an unincorporated, nonprofit association located in Wayne County. Defendant Mitchell died while this action was pending and no representative has joined in this appeal.

[2] The trial court by its order of November 21, 1975, granted the defendants' motion to dismiss as to all plaintiffs named in the pleadings dated April 3, 1975. William H. Jones, Barbara Cartwright, Edward Attee, and Charles Holt were permitted to intervene in the same order. William H. Jones has settled with the defendants and is no longer a party to this action.

[3] The statute provides in pertinent part:

"It shall be lawful to charge for executing any bond in a criminal case, but no person engaged in the bonding business, either as principal or clerk, agent or representative of another, either directly or indirectly, shall charge, accept or receive any sum of money or property, other than the regular prevailing fee for bonding, which shall not exceed 10% of the face value of the bond for a 12 month period or any part thereof, from any person for whom he has executed bond, for any other service whatever performed in connection with any indictment, information or charge upon which the person is bailed or held."

[4] The statute provides in pertinent part:

"In all criminal cases where any person or persons have entered into any recognizance for the personal appearance of another and such bail and surety shall afterwards desire to be relieved from his responsibility, he may with or without assistance, arrest the accused and deliver him at the jail or to the sheriff of said county. In making such arrest he shall be entitled to the assistance of the sheriff, chief of police of any city or any peace officer. The sheriff or keeper of any jail in said county is authorized to receive such principal and detain him in jail until he is discharged in due course of law. Upon delivery of his principal at the jail by the surety or any officer, such surety shall be released from the conditions of his recognizance."

[5] The trial court defined the class as follows:

"A. All those who purchased a bail bond from the defendants within six years from the date of filing of complaint herein or [sic, and] paid fees or posted collateral totaling more than ten (10%) percent of the face value of the bond written.

"B. All those for whom the defendants posted bond in return for fees and collateral in excess of ten (10%) percent of the face value of the bond posted within six years from the date of filing of the complaint herein.

"C. All individuals who purchased a bail bond and who paid fees or posted collateral totaling more than ten (10%) percent of the face value of the bond written subsequent to the filing of the bill of complaint.

"D. All individuals who purchased bonds and had them revoked under the revocation statute."

On appeal the parties agreed that the trial court intended the word "and" to follow the word "herein" in subgroup A rather than the word "or". 88 Mich App 519; 278 NW2d 653 (1979).

[6] The Court of Appeals defined the class as follows:

"Group `A' includes all those who, within three years prior to the complaint's filing, or subsequent thereto, purchased a bond from defendants and did one of the following:

"(1) paid fees exceeding 10% of the bond's face value; or

"(2) posted collateral exceeding 10% of the bond's face value; or

"(3) paid fees and posted collateral which together exceeded 10% of the bond's face value.

"Group `B' includes all persons for whom a bond was purchased from defendants within three years prior to the filing of the complaint, or subsequent thereto, and for which purchase defendants charged as in `A' (1), (2) or (3)."

This definition of the class was set forth in Judge CAVANAGH'S dissenting opinion. It also included Groups "C" and "D" which included persons with claims for revocation of a bond pursuant to MCL 765.26; MSA 28.913. Because the majority of the Court of Appeals panel found this statute constitutional, persons with claims arising from bond revocation would not be within the class.

[7] In Mr. Holt's motion to intervene and affidavit, he alleges that: (1) he was arrested with Mr. Powell; (2) he was not free on bond; and (3) he obtained his release from the jail within a couple of hours. Any claim Mr. Holt may have against the defendants for this incident does not arise out of the bond revocation and arrest statute because Mr. Holt was not a principal on a bond executed by the defendants.

[8] These facts are taken from Mr. Attee's motion to intervene and his affidavit in support of the motion. Plaintiffs' brief on appeal stated that Mr. Attee purchased the bond on his own behalf. Defendant's brief on appeal stated that Mr. Attee purchased the bond on behalf of Willie Harris.

[9] Mr. Attee had signed the bond agreement which previously had been entered into by Willie Harris.

[10] The Court of Appeals applied the three-year statute of limitations to the causes of action alleging statutory overcharges and to the alleged constitutional wrongs.

[11] The defendants rely on 1965 PA 203, §§ 13(2) and 13(3), which levied an assessment as an additional cost equal to 10% of every fine, penalty, and forfeiture imposed and collected by the courts for criminal offenses to be deposited in the law enforcement officers training fund. MCL 28.613; MSA 4.450(13). The Court of Appeals declared subsection (2) to be unconstitutional in People v Barber, 14 Mich App 395; 165 NW2d 608 (1968). Subsections (2) and (3) were repealed effective January 11, 1977. 1976 PA 422.

[1] The acceptance and receipt of money in excess of 10% is obvious where, as here, it is alleged that the defendant bail bonding agency demanded possession of cash collateral. For example, on or about September 16, 1974, Barbara Cartwright purchased a bail bond from the Goldfarb Bonding Agency in order to secure the pretrial release of Buford Miller. She was charged a $55 fee for the $500 bond. In addition, defendant Goldfarb required, as a condition precedent to posting the bond, an additional $250 cash as "collateral" or "security". I cannot comprehend how the payment of $305 cash for a $500 bail bond satisfies the crystal clear statutory mandate against charging, accepting or receiving money in excess of 10% of the face value of the bond, even if part of the money might be returned at a later time. Nor would I reach a different result if the collateral were in the form of a security interest in property rather than cash. The statute specifically forbids the acceptance or receipt of any money or property in excess of the 10% fee. The statute also forbids direct or indirect charges in excess of 10%.

[2] The defendants argue that the taking of collateral gives the defendant an important financial incentive to appear at trial. But the statute does not forbid the taking of collateral; it only forbids taking money or property exceeding 10% of the bond. A shrewd bondsman might well minimize bond forfeitures by charging a fee of less than 10%, with the balance paid as collateral. The total value of the money or property received simply cannot exceed 10%. If that amount is insufficient to assure the defendant's appearance, the bondsman need not write the bond; in the alternative, the trial court may require "additional security or other conditions" as are necessary. GCR 1963, 790.4(c)(2).

[3] The amount of collateral, plus the fee, will necessarily be less than 100% of the bond. If the defendant can post collateral worth 100% of the bail, he will not ordinarily go to a bondsman to pay an additional 10% fee when the collateral can be given to the court directly.

[4] However, even in a true "gift" situation, the person for whom the bond is purchased may have enforceable rights under a third-party beneficiary theory. MCL 600.1405; MSA 27 A. 1405. See, also, Williams v Polgar, 391 Mich 6; 215 NW2d 149 (1974).