Addis v. Applegate

Gaynor, J. — 153 — 1- p^fAappiicávenue”1 ‘*¡uflgé lent in°point of distance.” — 152 — — Division I. On the 29th day of April, 1911, the plaintiff was adjudged to be a fit subject for detention and — 153 — treatment at the Iowa State Hospital for Females at Mt. Pleasant, as an inebriate. The order for her detention was made by the district court of Clayton county, and provided that she be cornmitted to and detained in said hospital until , ,Tj .. cured, not exceeding three years. It was made to appear at said hearing that she was addicted to the excessive use of morphine. No question is made about the propriety or sufficiency of the order of commitment, or the proceedings under which the order was made. Nor is there any claim that she was not at that time a fit subject for detention in the hospital for inebriates. The order for her detention was issued to the sheriff of Clayton county, commanding him to deliver her, without delay, to the superintendent of the Hospital for Inebriates at Mt. Pleasant, and this was accordingly done. The defendant herein, C. F. Applegate, was at the time, and is now, the superintendent of the hospital, and he received her and took her into his custody under and by virtue of such order, and was so detaining her at the time this action was commenced. On the 18th day of August, 1912, the plaintiff filed a petition for writ of habeas corpus before Hon. W. J. Springer, one of the judges of the district court in and for Clayton county, this being the county in which the judgment of commitment was entered, and the one in which she then resided. The application for the writ of habeas corpus states, and the fact appears to be, that she was committed to the care of the defendant on the 2d day of May, 1911, under said order for treatment. It is claimed that plaintiff is entirely cured of the morphine habit; that the defendant herein, the superintendent of the hospital, knowing that she is cured, refuses to restore her to her liberty or to discharge her from his custody, and that, therefore, her further confinement and custody in said hospital and her further restraint by the defendant are illegal. Plaintiff further alleges, in her application for the writ, as a reason for not making application to the nearest court or — 154 — judge, that the judge to whom the application was made was most convenient, in that she can procure testimony at the time of hearing to much better advantage and with less expense than can be done in any other county in the state. There are other allegations in the application for the writ which are not material to this controversy, and are not, therefore, set out. Upon the filing of the petition aforesaid, Hon. W. J. Springer, on the 18th day of August, 1912, ordered that a writ issue in due form, as provided by See. 4423 of the Code, commanding this defendant to bring the plaintiff before him on the 17th day of September, 1912, at the hour of 9 o’clock A. M., to be dealt with according to law. On said date, the defendant herein appeared before said judge and filed the ' following motion, which was, on the same day, overruled: “Comes now the defendant in the above entitled cause and moves the court to dismiss the petition of plaintiff filed herein and to remand the plaintiff to the custody of the defendant for the following reasons: “1st. It appears by the allegations of said petition that the plaintiff was, at the time of the filing of said petition, confined at the State Hospital for Female Inebriates at Mt. Pleasant, in Henry county, Iowa, and it is not shown that said petition was presented to the court or judge most convenient to the applicant from the point of distance, as required by Sec. 4420 of the Code; nor is said action brought in the county where the cause arose, as required by Code Sec. 3494. “2d. For the reason that this court has no jurisdiction to issue the writ of habeas corpus issued herein, because the judges of the district court of the judicial district in which Henry county is situated were, at the time said petition was filed and said writ issued, most convenient to the applicant in the point of distance.” Thereupon the defendant filed a motion for a change of vende from Clayton county to Henry county, supported by — 155 — the affidavit of the defendant, in which he states that he is an actual resident of Henry county; superintendent of the Hospital for Females at Mt. Pleasant; that his official acts are performed in Henry county; that he was a resident of said county at the time the action was commenced; that the only restraint of the plaintiff made by him is as superintendent of the hospital, and at said institution. This motion being overruled, the defendant made his return to the writ, in which he admits the commitment and confinement of the plaintiff at the times and places alleged in her application, and further challenges the jurisdiction of Judge Springer to issue the writ, or to try, hear, or determine the issues involved; alleges that there are two judges of the district court, one residing in Mt. Pleasant, where plaintiff is confined, and one residing in Burlington, both of whom are more convenient in point of distance to the applicant than is Hon. W. J. Springer. Upon the filing of the said return, the defendant asked that plaintiff’s petition be dismissed; that she be remanded to his custody, to be detained by him in obedience to the writ of commitment. Thereupon the cause proceeded to trial upon the issues joined, and, upon such hearing, the plaintiff was discharged. From the action of Judge Springer in the premises, the defendant appeals, and assigns as error: 1. The court erred in overruling defendant’s motion to dismiss and remand. 2. The court erred in overruling defendant’s motion for a change of venue. 3. The court erred in assuming the power to determine the question of fact as to whether or not the plaintiff is cured, when this was solely a question to be determined by the superintendent of the inebriate department of the hospital. We shall consider these assignments in the order in which they were made. Division I. Did the court err in overruling the defendant’s motion to dismiss and remand? — 156 — Section 4420 of the Code provides: “Application for the writ must be made to the court or judge most convenient in point of distance to the applicant, and the more remote court or judge, if applied to therefor, may refuse the same, unless a sufficient reason be stated in the petition for not making the application to the more convenient court or a judge thereof. ’ ’ The Supreme Court of this state, the district courts and the superior courts, and each and every judge of each and every one of these courts has jurisdiction to entertain an application for a writ of habeas corpus and to allow the writ upon a proper showing, and the writ, when issued, “may be served in any part of the state.” Section 4419 of the Code. We start, then, with the proposition that each of the district judges of this state is, by virtue of the statute, invested with the power to entertain an inquisition of this character, and, upon proper application, to issue a writ, which, when issued, may be served upon anyone within the limits of the state. Section 4420 puts some limitation upon the exercise of the power so invested, in so far as it says that the “application for the writ must be made to the court or judge most convenient in point of distance to the applicant.” It does not say, however, that a more remote judge, if applied to, may not issue the writ upon a showing that a citizen of the state is illegally deprived of his liberty. It does not assume to take from the more remote judge the jurisdiction given him under and by virtue of the provisions of Sec. 4419, but says that he may refuse to grant the writ “unless a sufficient reason be stated in the petition for not making the application to the more convenient court or a judge thereof.” The statute does not define what is meant by “ a more convenient court or judge, ’ ’ unless we infer, from what precedes, that it was intended by the legislature to mean in point of distance. The statute does not say that the application shall be made to the judge nearest in point of distance to the applicant, but to the one “most convenient in point of distance.” — 157 — It has been held by this court that the applicant referred to in the statute is the party restrained of his liberty. Therefore it follows that the writ must be applied for to a judge most convenient in point of distance to the party restrained of his liberty. The thought of the legislature seems to be that the convenience of the party restrained is the controlling factor in the selection of the judge. In the application in this case, it was asserted by the applicant that Judge Springer, to whom the application was made, was more convenient to the applicant in point of distance. This allegation was based upon the alleged reason that a hearing before him would be more convenient, in that the testimony upon the hearing could be procured with less expense, and to much better advantage, than could be done in any other county in the state. The application, therefore, tendered a question of fact, upon which the judge was called upon to act, and upon .the proof of which rested his right to grant or refuse the writ. In assuming jurisdiction, he must have found this allegation to be true. Tie must have found affirmatively that it was more convenient to the applicant in point of distance to make the application to him, than to a judge nearer in point of distance. Cases may arise in which this is absolutely true, and the court, in passing upon the application, in a fair consideration of all conditions, might readily so determine. His determination of this question is made upon the allegations of the application. Does the fact, if it be a fact, that upon a hearing m this court it appears that his determination was not well founded, or that he erred in his determination upon this question, oust him of jurisdiction Í The Constitution of this state recognizes the writ of habeas corpus as an existing remedy in all eases in which it is properly applied for. The statute herein set out designates the courts or officers which may issue a writ. The statute does not attempt to point out, nor could it conveniently do so, all the cases in which the writ may be applied for or used. The proceeding is in the nature of an inquisition — to inquire into and determine, upon proper — 158 — application, whether the party complaining is or is not unlawfully restrained of his liberty. The right to the writ antedates our Constitution and our statute. They attempt only to reassert the right and to maintain it inviolate, regulating, however, the manner of its use. Ve are, therefore, compelled to look to the common law, the statutes of the state and the decisions of the courts, to determine the cases in which the right may be employed and the manner in which the right to the writ may be exercised. The primary question, in all proceedings of this kind, is whether or not the applicant is illegally restrained of his liberty at the time the application is made. It is immaterial, so far as the right to the writ is concerned, whether or not he was originally restrained by criminal or civil process. The question to be determined upon the hearing is, Is he now lawfully or unlawfully restrained? The writ may be applied for and secured upon the application of the person confined, or the application may be made on his behalf by another, or the writ may be issued by the court on its own motion in a proper case. To entitle the applicant to the writ, there must be at least a prima-facie showing made in the application that the detention or confinement of the applicant is unlawful. Without such prima-facie showing in the application itself, the writ ought to be denied. This court, in the case of Ware v. Sanders, 146 Iowa 233, 240, speaking through Judge Weaver, said: “Both by motion and in argument counsel for the State attack the jurisdiction of this court to entertain or pass upon plaintiff’s petition, because the application for the writ was not made to the court or judge most convenient to the petitioner, as provided by Code See. 4420. While the section referred to provides a general rule directing the application to be made to the most convenient judge, it does not expressly provide that such judge has exclusive jurisdiction, nor does — 159 — it command the more remote judge to whom it may be presented to refuse the writ, but the language is that he ‘may refuse the same.’ The phrase ‘convenient in point of distance’ is one of quite indefinite meaning, and often might reasonably be applied to any one of several judges residing in different localities. The statutory restriction serves to put the judge upon his guard, and suggest inquiry into the propriety of his entertaining the proceeding and the good faith of the applicant in coming to him, but we think it is not a jurisdictional question. If, as is provided in some states, the statute required the matter to be first presented to a judge of the county or district where the plaintiff is restrained, an objection to an application first made elsewhere would raise a very different question; for, in such case, a territorial limit is clearly and explicitly defined, and no room is left for construction.” This language is in point here. The same issue was tendered there as is tendered here, and the decision sustained the right of a more remote court or judge to assume jurisdiction and determine the controversy there. It will be further noted that the statute says the application must be made to the judge “most convenient in point of distance to the applicant. ’ ’ The convenience of the applicant seems to be the controlling thought of the legislature in the selection of the judge. There is nothing in the statute indicating that the legislature intended that the convenience of the party charged with the illegal restraint should be considered. It therefore occurs to the mind that it is not a matter of which he can complain if the application is made to one, though not convenient to him, who is alleged to be and claimed to be, convenient to the applicant. The question of convenience to the applicant is a matter that affects him alone, and if it is inconvenient for him to select a remoter judge, it is not for the other party to make complaint. No right is given defendant to select, nor is his convenience provided for in the statute. — 160 — There is no doubt that this provision of the statute is advisedly there, giving the judge the right to refuse to entertain the writ, if, in his judgment, it ought to be made to one more convenient to the place where the applicant is confined. Cases may arise in which it would be a great hardship to require one applying for a writ on behalf of the one restrained of his liberty to make application to the judge nearest to the place of confinement. For instance, in cases of children, where there is a separation of parties and the wife is given the control and custody of the child and has a right to the possession of it, and the father wrongfully removes it to some remote corner of the state, and there restrains it of its liberty, and denies the wife’s right to the possession; if, under such a supposable case, and one that may often arise, the wife should apply, on behalf of the child, for a writ of habeas corpus to the judge residing in the county from which the child was taken, and it should be made to appear that all the witnesses who were material to the proper determination of the rights of the parties to the possession of the child were residing in that county and were most convenient and accessible and most easily procured and with less expense upon a hearing there, and the judge should so find and issue the writ, could the party against whom the writ issues be heard to say: “True, I have wrongfully taken the child from the possession of the applicant and am wrongfully restraining him, but inasmuch as I have removed him to a remote comer of the state, and hold him in my possession there, and was so holding him at the time this writ was issued, the writ ought to be quashed as improvidently issued, because the application was not made to a judge most convenient, in point of distance, to the place where I was then unlawfully restraining the applicant of his liberty?” To hold that would be to say that it was the purpose and intention of the legislature that'the convenience of the wrongdoer should be considered, rather than the convenience of the one who is seeking the — 161 — liberty of whieh he is alleged to be wrongfully deprived. The statute does not so provide. It is true that in this case, the applicant was originally rightfully in the possession of the defendant, and rightfully restrained of her liberty by him, because her restraint was secured, and authority to restrain given, under due process of law. But however rightful the original restraint may be, however right the restraint in its inception, may have been, it may become wrongful, and the right to restrain may terminate by the happening of subsequent conditions, or by the operation of the law itself upon the rights of the parties, and the question in all these cases is not whether the original restraint was rightful, but whether or not, at the time of filing the application for the writ, the applicant is wrongfully restrained of liberty, and this must be determined by the then conditions. From what has been heretofore said, it is apparent to us that Judge Springer, who issued the writ in this ease, had jurisdiction to issue the writ which the defendant sought, by his motion, to quash, and that there was no error in the court’s ruling on that point. As bearing upon this question, see Broomhead v. Chisolm, 47 Ga. 390. This case, though not exactly in point upon the question here raised, suggests, at least, the correctness of our conclusion. 3ee also Simmons v. Georgia Iron & Coal Co., 61 L. R. A. 739 (43 S. E. 780); Anderson v. Culver et al., 3 Practice Reports (Can.) 306. 2. Habeas cob-pus : issuance of writ: public officers. The fact that the defendant was a public officer did not render him immune from inquisition of this kind, and his official character neither enlarged nor abridged his rights. Most of the cases of this character that have come before the courts for determination were cases in which the party complaining was held under pretense of official authority, or under some claimed legal right to make the restraint. It does not make any difference by what authority the original restraint is made; for, when the writ is issued, it is the duty of the party — 162 — against whom the writ runs to obey the same and bring before the judge the party alleged to have been illegally restrained, to explain and justify, if he can, the fact of restraint or imprisonment. The very purpose and object of the remedy is to give speedy and effective relief to those who are deprived of their liberty wrongfully, no matter by whom, or under what claim the imprisonment is made. The application is made originally for the sole purpose of compelling the person against whom it runs to produce before the court or judge the body of the person claimed to have been illegally restrained, in order that the cause of his detention may be inquired into. Where a public officer is charged with restraining one wrongfully of his liberty, and a writ issues, he must produce before the court, in obedience to the writ, the person alleged to have been wrongfully restrained. So far as the proceeding in habeas corpus is concerned, his responsibility ceases when he has done this. This court then passes upon all questions, both of law and fact, and determines the ultimate question whether the person is or is not wrongfully restrained of his liberty. The proceeding is instituted and carried on for his benefit. The officer presumably is not personally interested in the outcome. It is not, in a technical sense, a suit between the applicant and the officer, and the officer is not liable for costs in this proceeding, nor can he be mulcted in damages, even though it be made to appear that the restraint is wrongful. The proceeding is simply to fix the status and rights of the applicant, his right to liberty or otherwise; and if it appears that he was wrongfully restrained, he must be discharged. As stated by Mr. Justice Bleckley in Perry v. McLendon, 62 Georgia 598, 604: “The writ should be issued, providing the petition contains the requisite matter, is in due form, duly authenticated, duly presented, and does not show on its face that the imprisonment, though complained of as illegal, is in fact legal.” — 163 — It would seem, therefore, that it is the duty of thp court or judge to whom the application is presented, before issuing the writ, to inspect the application to see if it contains, sufficient averments, is in due form of law, and properly subscribed. If it does not, he should refuse to issue the writ. If it does, it is his duty to grant it. In Simmons v. Georgia Iron & Coal Co., supra, Justice Cobb, speaking for that court, said: “We know of no law which authorizes either the person against whom the writ is prayed, or anyone else, to come into court and object to the issuance of the writ. There is no precedent for an objection of this character. It is a matter to be determined solely by the judge. And, even after the . writ is issued, and the respondent has appeared in answer to it, the sufficiency of the petition (to justify the issuance of the writ) cannot be tested by demurrer, though it seems that a motion may be made to quash the writ because of insufficient averments.” We are aware of what this court said in Thompson v. Oglesby, 42 Iowa 598. In that case, the application was made by one other than the person confined, and the question arose as to who should be considered the applicant in determining the venue, and it was there determined to be the party in whose interest the application was filed, and not the person making the formal application. The question here considered was not determined. It was assumed that the writ was wrongfully issued if not made by the judge nearest to the person in whose interest the application was made, and it was assumed that the evidence showing the legality of the imprisonment would be at the place where the applicant was restrained, and the court assumed that this provision of the statute as to the venue was made in the interest of the defendant, the party charged with the illegal restraint; for in that opinion it is said: “If the imprisonment is legal, the defendant should be allowed to show it with the least possible trouble and expense.” — 164 — It is also said, — and in this there is a suggestion that the rights of the applicant ought to be considered: 1 ‘ There is no reason why his imprisonment should continue until he can be brought before some remote court or judge, wherever some person may happen to be who desires to present the petition in his behalf.” The court further said: “This case has been argued upon the supposition that if Hannah M. Thompson (mother of the person restrained, and the one who made the application) is not the applicant, within the meaning of the statute, the motion for a change of venue should have been granted. In our consideration of the case we shall proceed upon the same supposition.” The only question involved in that case, as appears from the statement of the issues, was not the jurisdiction of the judge granting the writ to issue it, but the right of the party against whom it was issued to have the venue or the hearing changed to the county in which the party was illegally restrained. We do not. think the question here presented was in that case involved in the issues considered or determined. It will be noted that, at the time this action was commenced, chapter 293 of the Acts of the Thirty-Fifth General Assembly was not in force, and the same rule applied to public officers and to the citizen alike. 3‘ ptrefAvenu(f: statuatesc°¿£ciustatúte^not1 applicable. The next contention, that the court erred in overruling defendant’s motion for a change of venue from Clayton county to Henry county, is involved in what we have said. This motion was made before the defendant had made , , ,, any return, and was based upon the following affidavit: “I, C. F. Applegate, being duly sworn, on oath state that I am now, and for more than eight years last past have been, an actual resident of Henry county, Iowa., and, during said time, have been superintendent of the State Hospital for Female Inebriates at Mt. Pleasant, Iowa, and all my official acts are and have been performed in said Henry county, and — 165 — ■was a resident of the said county at the time of the commencement of this action, and the issuance and service of the writ of habeas, corpus herein; and my only restraint of plaintiff has been as superintendent of said hospital; all of which is true as I verily believe.” This affidavit for the change rests entirely upon the thought that the defendant is a resident of Henry county, and is superintendent of the State Hospital for Females at Mt. Pleasant, in said county; that he was a resident of the county at the time the writ was sued out; and that the only restraint of the plaintiff by him was as superintendent of the hospital; and proceeds upon the theory that he is entitled to have the venue changed to the county of his residence. Now it is apparent that, if the court had jurisdiction of the subject-matter and of the parties, and had a right to issue the writ and the right to hear and determine the question involved, the fact that it would be more convenient for the defendant to have the hearing in the county of his residence would not be sufficient ground for changing the venue. There is no showing in the application for a change of venue that it would be more convenient for the applicant to have the hearing in Henry county, but it proceeds upon the theory that the statute requires the venue to be laid at a place nearest, in point of distance, to the place of confinement, and this the statute does not require. The judge to whom the application is made is invested with some discretion. Of course, it is a legal discretion, but the question as to whether he will assume jurisdiction or not, if he be the more remote judge, must be determined by him upon the application submitted and the nature and character of the investigation sought. It is not to be assumed that he will abuse his discretion in this respect and assume jurisdiction to the detriment of the public or to the embarrassment of the fair administration of the criminal laws or of the officers charged with their enforcement. The mere fact that the defendant is a nonresident of the — 166 — county in which the judge resides, or in which the judge is at the time the writ is issued, the mere fact that there are judges nearer to the point where the plaintiff is restrained (and there is no showing of this fact in the affidavit for a change of venue) than the one issuing the writ, are not in themselves grounds for a change of venue. The defendant relies on Sec. 3504 of the Code of 1897 as giving him the right to the change in venue for which he applied. This statute provides: “If an action is brought in a ivrong county, it may there be prosecuted to a termination, unless the defendant, before answer, demands a change of place of trial to the proper county, in which ease the court shall order the same at the cost of the plaintiff, and may award the defendant a reasonable compensation for his trouble and expense in attending at the wrong county.” The defendant also relies upon Sec. 3494, Code Sup., 1907, second division, regulating the place of bringing actions, in which it is provided that actions for the following causes must be brought in the county where the cause or some part thereof arose: “Those against a public officer or person specially appointed to execute his duties, for an act done by him in virtue or under color of his office. ’ ’ A casual reading of the statute authorizing the issuance of the writ will show that these limitations do not apply. There is no question, under this statute, that the plaintiff had a right to apply to Judge Springer, of Clayton county, for the writ. There is no question that he had a right to refuse the writ (though not obliged.to do so), if it was made to appear to him that there was another judge more convenient in point of distance to the applicant. There was invested in him, by the statute, a judicial discretion in the matter. An error of judgment on his part as to the existence of conditions which ought to suggest to1 him the propriety of refusing, even though such conditions were in the statute, would not oust him of — 167 — jurisdiction, or a right to hear and determine the question. The legislature, in saying that he had a right to refuse the writ, — in saying that he may refuse the writ, not that he must refuse the writ, — evidently were not afraid that the judges of the district would abuse the discretion invested in them, to the prejudice of the public good, and we think we ought not to assume to entertain any such fear. The remoter judge, having jurisdiction of habeas corpus proceedings, and a right to entertain inquisitions of that character, may exercise that jurisdiction upon any showing which satisfies him that the interests of justice would be thereby more nearly attained. There is no limitation on the right of any judge of the district court of Iowa to issue a writ of habeas corpus on proper application, running into any part of the state. Indeed, that right is given him by the statute, and upon a proper showing for a writ, a wrongful or unlawful refusal to grant the writ subjects him to a penalty. But the legislature says that he must refuse the writ, even though properly applied for, if, from the showing of the petitioner, it is apparent that the petitioner would not be entitled to any relief, or he may refuse it, unless a sufficient reason be stated in the petition for not making the application to a more convenient judge or court. We think the motion for a change of venue was properly overruled. 4. Habeas cob-pus : “Inebriate” Act: commitment “until cured” : power of court to determine question of cure: parole. Division II. Upon this appeal the defendant states his last ground for reversal in the following language: “The court erred in assuming the power to determine the question of fact, as to whether or not the plaintiff is cured, when the matter was wholly for the determination of the superintendent of the inebriate department of the State Hospital.” This question was not involved in the motion to quash the writ, but appears only in the answer or return made by the defendant, and was made in the following language': — 168 — “The defendant further alleges that the plaintiff is not cured, and has never been found to be cured, either by the defendant, or by the board of control.” Whether this allegation in the answer was made for the purpose of tendering an issue of fact with the plaintiff as to whether she was cured or not, or whether it was intended to raise the legal question that the court had no jurisdiction to inquire into the fact whether she was cured or not, does not appear. 5' rnifont habeas notPheái'aPI>eal Whether she was cured or not was a question of fact. Whether the court had a right to inquire into the fact is a question of law. The question of fact was determined adversely to the appellant in the court below. The case is not triable de novo here. If the court had a right to consider and determine this question, its finding is binding upon the defendant. There was evidence to support the finding of the court, and we treat it the same as the verdict of a jury. In discussing this question as to the right of the court to hear and determine the question, the plaintiff relies upon Sec. 2310-al2 of the Supplement to the Code of 1907, as follows: “The board of control of state institutions may discharge any person committed to a state hospital under the provisions of this act on the recommendation of the superintendent when satisfied that such person will not receive substantial benefit from further hospital treatment.” This has no application to the ease at bar. The plaintiff also relies on See. 2310-a3, which provides: “If after thirty days of such treatment and detention a patient shall appear to be cured, and if the physician in charge and the superintendent of said institution shall so recommend, the governor shall parole said patient, provided — 169 — that said patient shall pledge himself” as provided in said section. 6. Habeas cob-pus: right to ‘inebriate”te' Acfc There is no provision in this chapter for the release of one confined in a state hospital for inebriates by habeas corpus proceedings. Nor is it necessary that the statute should confer such right. It is a right guaranteed . hy the Constitution, and a right that cannot ^e suspended or refused by legislation. See Sec. 13, article 1, in Bill of Bights, Iowa Constitution. In cases where parties are confined in insane asylums in this state, there is a special provision of the statute as follows: “All persons confined as insane shall be entitled'to the benefit of the writ of habeas corpus, and the question of insanity shall be decided at the hearing. If the judge shall decide that the person is insane, such decision shall be no bar to the issuing of the writ a second time, whenever it shall be alleged that such person has been restored to reason.” (See. 2306, Code, 1897.) It will be noticed that the plaintiff herein was not ordered confined for any definite time. The order provided that she be confined in the hospital until cured, not exceeding three years. Whenever she was cured, she was entitled to be released. Any restraint after she was cured would be a violation of her constitutional right to liberty. These statutes relied upon do not provide any tribunal for determining whether a patient, confined in this hospital, is cured or not. Subdivision a3 of Sec. 2310 only provides for a parole by the governor in the event she shall appear to be cured, and the superintendent and physician recommend her parole. There is no provision for any hearing upon the question of an absolute cure, or her right to be absolutely discharged, upon a showing that she is cured, and there is apparent to us no more reason why a person confined in an insane asylum — 170 — as insane should have a right to be heard in a proceeding of this kind, as to whether she is cured or not of her insanity, than there is for a hearing of the same character and kind where one is confined as an inebriate. As soon as cured, the purpose of confinement was accomplished. No longer was there any right, under the order or under the statute to confine her. When the right to confine expired, the right to her liberty arose. When this was refused, her right to the writ to determine her right to liberty was the only avenue of escape. Sec. 7, chapter 80, of the Acts of the Thirtieth General Assembly provides: “The term of detention and treatment shall be until the patient is cured, and not exceeding three years.” The provisions of this act are incorporated in the Supplement of the Code of 1907 as See. 2310-al2. The three-year limitation is a limitation upon the right to hold the patient whether cured or not. At the expiration of three years, whether the patient be cured of his malady or not, the right to hold him longer, under the order of commitment, expires. This statute gives a right, under proper order, to hold the patient until cured, but whether cured or not, not to exceed three years. The only provision of the statute authorizing the holding of an inebriate for a full three years is found in chapter 184 of the laws of the Thirty-Fifth General Assembly, which provides for the creation of a department to be known as the custodial department, and Sec. 2 of this act (See. 2310-a34, Code Sup. 1913) provides: “Said department shall be for the confinement of all male persons hereinafter committed to said hospital who have been discharged under the provisions of Sec. 2310-al2, Supplement of the Code, 1907, all male persons committed to said hospital who are found by the court making the order of commitment to be habitual inebriates or drug habituates; and any person committed to the hospital who, in the judgment of the board of control of state institutions acting upon — 171 — the recommendation of the superintendent, is believed to be a menace to the maintenance of the discipline of the hospital, and providing that patients of any department of the hospital who leave the institution or grounds thereof without due authority shall be subject to transfer to said custodial department upon the order of the superintendent of the hospital. ’ ’ Section 3 (Sec. 2310-a35, Code Sup. 1913) provides: “No person confined in the custodial department shall be released therefrom until he shall have remained a full term of three years.5 ’ There is no claim in this case that the plaintiff herein should be held under any of the provisions of chapter 184 of the laws of the Thirty-Fifth General Assembly. Nor is the right to hold her based upon any of the provisions of this chapter. Upon a full consideration of this record, we are inclined to the opinion that the court did not err in discharging the plaintiff, and the cause, therefore, should be and is Affirmed. Weaver and Evans, JJ., concur. Salinger, J., specially concurs. Ladd, J., concurs in the conclusions reached in the first division of the opinion; dissents as to the second division. Deemer, C. J., and Preston, J., dissent.