attained in defiance of the constitution, and without due process of law.

Let us now turn to the statute in question. It must be observed at the outset that private, as well as public, hospitals are within its terms, and for this reason, if for no other, the rights of the citizen should be closely guarded. Laws of 1893, chapter 5, section 17, requires that every person committed to custody as insane must be so committed in the manner thereafter prescribed. Section 19 provides that whenever the probate judge, or, in his absence, the court commissioner, shall receive information in writing (the form being given) that there is an insane person in his county needing care and treatment, he shall issue what is called a "commission in lunacy" (the form thereof being prescribed) to two physicians, styled "examiners in lunacy." This section permits the filing of an information not even sworn to by anybody. That it has opened the door to wrong and injustice—to the making of very serious and unwarranted charges against others by wholly irresponsible and evil-minded persons-is evident, although the method of instituting the proceedings does not affect the validity of the act. The commission directs the two physicians designated, who, under section 18, must now possess certain qualifications, to "examine" the alleged lunatic, and certify to the probate judge or court commissioner, within one day after their examination, the result thereof, with their recommendation as to the special action necessary to be taken. The form of this certificate and recommendation is laid down in section 20. This certificate must be duly sworn to or affirmed before the officer issuing 476 the commission: Laws of 1893, c. 5, sec. 21. If (sec. 19) the examiners certify that the person examined is sane the case shall be dismissed. If they disagree the officer shall call other examiners, or take further testimony. If they certify the person to be insane, and a proper subject for commitment, for any of the reasons specified in section 17, it is made the duty of the officer to visit the alleged insane person, or to require him to be brought into court; "but he shall cause him to be fully informed of the proceedings being taken against him." If the officer deems it advisable he may call other examiners, or take further testimony, and in all cases, "before issuing a warrant of commitment," the county attorney shall be informed, and it is made his duty to take such steps as are deemed necessary to protect the rights of such

person. If satisfied that the person is insane, and that the reason for his commitment is sufficient, under the provisions. of the act, the probate judge or the court commissioner approves the certificate of the examiners, and issues an order or warrant in duplicate, committing him to the custody of the superintendent of one of the state hospitals, or to the euperintendent or keeper of any private hospital or institution for the insane, which under the same law has been duly licensed. This order or warrant may be executed by the sheriff or by a private individual, and through it the person named therein is placed in the custody of the superintendent or keeper to whom it may have been directed. There are some other provisions in respect to these commitments, but they have no bearing on the questions now before us, and we now reach a consideration of the controlling provisions of the statute. The commission issues to the examiners, and they are authorized and directed to "examine" the alleged lunatic. Their examination is not made under oath. It may be formal or informal, as they choose, and the person under examination may not have the slightest idea that he is the subject of inquiry or investigation. The examination may be at any place where the subject can be found, or at a place convenient for the examiners. It may be public or private, and, judging from the questions found in the form to be answered by the examiners, it may consist simply in observing the alleged lunatic, and in making inquiries of him or of his acquaintances, or, for that matter, accepting common street gossip. To illustrate: In the certificate signed by the physicians who made 477 this examination is the answer to a most important question, viz: "Has the patient shown any disposition to injure others"? The answer is: "Yes. It is reported that she threatens to shoot, carries firearms, and did shoot at one person passing, not knowing whom."

When this examination, of which the subject need not be informed, and in which he takes no part, is completed, the examiners are required to make a verified written report and recommendation, and on this the officer may commit without any other or further act, except that he must see the subject, either in or out of court, informing him fully of the proceedings, and must also notify the county attorney of what is going on. Not until after the examination, report, and recommendation, upon which the officer may commit, if he so

AM. ST. REP., VOL. XLIII. — 34

chooses, need there be any notice whatsoever to the person charged with being a proper subject for the insane asylum, nor need the county attorney be advised of the proceeding. If personal rights are of any consequence, and if they need protection at any time, such notice should precede the examination, not follow it. But, aside from this serious defect in the law, it will be seen that there is no provision which assures to the accused a trial at any time, either before or after notice, under the forms of law; no provision which guarantees to him a judicial investigation and a determination as to his sanity. The officer before whom the inquiry is pend ing is nowhere required to conduct his examination with the least regards to the rights of the person charged with being insane-his right to exercise his faculties without unwarranted restraint, and to follow any lawful avocation for the support of life.

Nor is the officer obliged to hear a particle of testimony, although he is at liberty so to do. The accused or the county attorney might appear before him with an army of volunteer witnesses; but if their testimony was received or heard, or if there was the slightest approach to a trial, it would be through the grace of the officer, not as a matter of right to the person whose personal liberty is jeopardized by the proceeding. We are not speaking of what every honorable and humane officer would do when a case was before him, but of what the statute will permit an officer to do.

Further examination of this enactment need not be made, for enough has been said to establish its invalidity, and to indicate what outrages might be perpetrated under it. The objection to 478 such a proceeding as that authorized by this statute does not lie in the fact that the person named may be restrained of his liberty, but in allowing it to be done without first having a judicial investigation to ascertain whether the charges made against him are true; not in committing him to the hospital, but in doing it without first giving him an opportunity to be heard.

We are compelled to the conclusion that the enactment of the sections referred to is unconstitutional, because they allow and sanction a denial of the protection of the law, and the deprivation of personal liberty without due process of law. But we do not intend to intimate that in this case the upright and conscientious judge of probate before whom it was pending acted arbitrarily, or that he adhered to the letter of

the statute, disregarding the rights or requests of Mrs. Blaisdell or her friends, when, after the examination, report, and recommendation, she appeared before him. There is nothing to indicate such a course. As we have shown, the statute is so constructed that the opportunity to be heard in defense is not guaranteed to the person charged. It is not framed so as to compel a hearing before condemnation or a trial, under the general forms of law, before judgment is pronounced. Where it is plain that legislation upon any subject is in conflict with constitutional provisions, the duty of the court is obvi ous, and must be performed, whether the interests of a large number or of a certain class of people are involved, or the rights of a single citizen.

The provisions of chapter 5 of the Laws of 1893, on this subject, being invalid, those which they were designed to supersede, found in the Probate Code, are in force, and must be observed. As stated in the former decision, they were not; and, as a consequence, the conclusion heretofore reached is adhered to.

DUE PROCESS OF LAW AS APPLIED TO INSANE PERSONS.-It is a fundamental principle of both state and national constitutional law that no man shall be deprived of "life, liberty, or property" without "due process of law"; and, under the express provision of the fourteenth amendment to the constitution of the United States, no state shall "deny to any person within its jurisdiction the equal protection of the laws." The right of personal liberty is thus jealously guarded by constitutional law, and we are unaware of any distinction between the civil rights of a sane person, and those of an insane subject of the government. Nor should there be any. Persons, though insane, are still human beings, and laws which provide for their commitment to hospitals for proper care and treatment mark, it is said, the vast difference between a civilized free people and a savage nation. Such laws are common, but it must be observed in connection with them that all power over the person is liable to abuse. The deprivation of the liberty of a citizen upon the charge of insanity is a matter of very grave importance, because it may easily happen that for fraudulent purposes, perhaps with a view to deprive a person owning property of his control over it, a perfectly sane man may be sent to an asylum by his relatives, upon a certificate of physicians merely, and be illegally confined there for years. The civil rights of insane persons do not seem to have been often adjudicated by the courts, and a close search for authorities reveals the fact that, since the ratification of the fourteenth amendment, in July, 1868, its doctrines as applied to such persons have seldom been defined. Enough is gleaned from the authorities, however, to show that insane persons have rights, that the mere existence of the fact of insanity does not take away or abridge the rights of the citizen, and that a person charged with insanity cannot be deprived of his civil rights without the formalities prescribed by law: Commonwealth v. Kirkbride, 2 Brewst. 400, 419; and it

has been held that statutes providing for the examination, commitment, and custody of insane persons are mandatory, and must be strictly pursued: Meurer's Appeal, 119 Pa. St. 115; State v. Baird, 47 Mo. 301; Territory v. Sheriff of Gallatin County, 6 Mout. 297. If "due process of law" means the regular and orderly course of judicial proceedings in the administration of justice it would also seem clear that a determination of insanity is not conclusive, without the person charged with being insane has had notice, an opportunity to be heard, either in person or by counsel, an opportunity to produce witnesses, and to confront those seeking his retirement to an asylum or hospital, and in general to make what. ever defense may be justified by the circumstances of the case. This we conceive to be borne out by the authorities. There is a great diversity of definition as to "due process of law": See Attorney General v. Jochim, 99 Mich. 358; 41 Am. St. Rep. 606; note to State v. Goodwill, 25 Am. St. Rep. 876; note to Bardwell v. Collins, 20 Am. St. Rep. 554-559; Great West Min. Co. v. Woodmas Min. Co., 12 Col. 46; 13 Am. St. Rep. 204. "Due process

of law" is not necessarily judicial process. Administrative process, regarded as necessary in government, and sanctioned by long usage, is as much due process as any other: Attorney General, 99 Mich. 358; 41 Am. St. Rep. 606; note to Bardwell v. Collins, 20 Am. St. Rep. 554-559.

In the class of cases under consideration "due process of law" undoubtedly means "in the due course of legal proceedings, according to those rules and forms which have been established for the protection of private rights": Burdick v. People, 149 111. 600; 41 Am. St. Rep. 329. It means, at least, some legal procedure, in which the person proceeded against, if he is to be concluded thereby, shall have an opportunity to defend himself: Doyle, Petitioner, 16 R. I. 537; 27 Am. St. Rep. 759. For example, a state statute which authorizes the placing of insane persons in certain hospitals or asylums within the state by their parents, guardians, relatives, or friends, or, if paupers, by the overseers of the poor, upon certificates of their insanity, made by two practicing physicians of good standing, and which provides that when placed in such hospitals or asylums they may be lawfully received and detained therein, until discharged in one of the modes provided in the statute, where such statute does not provide a procedure by which the person confined can, as of right, defend himself, is void, as being in conflict with the due process clause of the national constitution: Doyle, Petitioner, 16 R. I. 537; 27 Am. St. Rep. 759.

The arrest of a person upon a charge of insanity for the purpose of committing or confining him in an insane asylum is, strictly speaking, not an arrest in either a civil or criminal proceeding, but in one sui generis, and ought not, in this day of regard for personal liberty, to be allowed otherwise than upon information on oath; yet, where such an arrest is made without an information upon oath, and an order is made directing the alleged lunatic to be brought before the court for examination, the mere want of an information upon oath will not, it has been held, render void the subsequent inquisition, commitment, and appointment of a guardian, even under a constitutional provision requiring cause to be shown on oath for the arrest of a person on a criminal charge, as such a provision does not apply to a charge of insanity: Sprigg v. Stump, 7 Saw. 280. On the other hand, it is held that the mere fact that a person is insane does not author. ize his arrest and confinement without a warrant if he is not dangerous to himself or to others: Look v. Dean, 108 Mass. 116; 11 Am. Rep. 323. No one has a right to confine an insane person for an indefinite period until hø