Barry v. Hall, 7049.

• Decision Date: 11 April 1938
• Docket Number: No. 7049.,7049.
• Citation: 98 F.2d 222
• Parties: BARRY v. HALL.
• Court: U.S. Court of Appeals — District of Columbia Circuit

98 F.2d 222 (1938)

BARRY v. HALL.

No. 7049.

United States Court of Appeals for the District of Columbia.

Decided April 11, 1938.

Rehearing Denied May 26, 1938.

COPYRIGHT MATERIAL OMITTED

Thomas Barry, of Washington, D. C., pro se.

Leslie C. Garnett, Allen J. Krouse, Elwood H. Seal, Vernon E. West, and Stanley DeNeale, all of Washington, D. C., for appellee.

Upon request of the court, Lawrence Koenigsberger, of Washington, D. C., filed a brief as amicus curiæ.

Before GRONER, Chief Justice, and STEPHENS and MILLER, Associate Justices.

STEPHENS, Associate Justice.

This is an appeal from an order of the District Court of the United States for the District of Columbia discharging a writ of habeas corpus and dismissing the petition upon which it was founded. There is no bill of exceptions, and we can therefore consider only whether the order is sustainable on the pleadings. Fleischmann Construction Co. v. United States, 1926, 270 U. S. 349, 356, 46 S.Ct. 284, 287, 70 L.Ed. 624; Eastman Kodak Co. v. Gray, 1934, 292 U. S. 332, 337, 54 S.Ct. 722, 724, 78 L.Ed. 1291; Harvey Co. v. Malley, 1933, 288 U.S. 415, 419, 53 S.Ct. 426, 427, 77 L.Ed. 866. Also there is no assignment of errors. But under paragraph 5 of rule 8 of this court we may notice and pass upon plain error not assigned.

According to the pleadings the appellant, whose home was originally at Memphis, Tennessee, was a seaman in the United States Merchant Marine. As such he came to be a beneficiary of the Federal statutes setting up a United States marine-hospital service, now a part of the United States Public Health Service, for the care and treatment of disabled civilian seamen. He was first in the United States Marine Hospital at Evansville, Indiana. From there he was, on September 1, 1935, transferred to Saint Elizabeths Hospital for the Insane in the District of Columbia where he has since been confined. This transfer was based upon the following United States Treasury Department letter:

"Treasury Department "Washington "August 17, 1935. "Superintendent "St. Elizabeths Hospital "Washington, D. C.

"Sir:

"By direction of the Secretary, you are hereby requested to receive into St. Elizabeth's Hospital, the person of Thomas Barry, a merchant seaman, transferred from U. S. Marine Hospital, Evansville, Indiana, to be cared for as prescribed by the Acts of Congress approved March 3, 1875, and July 1, 1918.

"Respectfully "(Seal) (Sgd) Josephine Roche "Assistant Secretary of the Treasury."

No other foundation for the original introduction of the appellant into Saint Elizabeths appears. No other basis for his continued confinement there appears except that on January 26, 1937, and again on July 27, 1937, the appellant appeared in the District Court of the United States for the District of Columbia on writs of habeas corpus, which were discharged, the appellant being remanded to the custody of the appellee, the superintendent of Saint Elizabeths. The appellant is indigent; he is not a member of the United States Army, Navy, Marine Corps or Coast Guard. The only issue of fact under the pleadings is as to his sanity. He alleges that he is not now and never has been insane; the appellee "denies that the petitioner . . . has never at any time been insane" and alleges that he has been and now is of unsound mind and in need of care in a mental hospital.

The statute referred to in the Treasury Department letter reads as follows:

"Insane patients of the Public Health Service shall be admitted into Saint Elizabeths Hospital upon the order of the Secretary of the Treasury, and shall be cared for therein until cured or until removed by the same authority. The Public Health Service shall pay to Saint Elizabeths Hospital the actual per capita cost of maintenance in the said hospital of patients committed by that service." Act of March 3, 1875, 18 Stat. 486; as amended by Act of July 1, 1902, 32 Stat. 712; Act of August 14, 1912, 37 Stat. 309; Act of July 1, 1916, 39 Stat. 309; and Act of July 1, 1918, 40 Stat. 644; 24 U.S.C. § 193, 24 U.S.C.A. § 193

The question in the case — is the appellant illegally confined and consequently entitled to be released under the present writ — will be discussed first in terms of his confinement under the Treasury Department letter until, but not including, the time of the order of remand on the writ of habeas corpus of January 26, 1937; and second, in terms of his continued confinement under that order of remand and the further one of July 27, 1937; under the second point will be discussed also the effect of the trial court's factual determination under the present writ that the appellant is now of unsound mind. Thereafter will be discussed a point urged by the appellee to the effect that unless the appellant is held to be presently lawfully confined, he will become a charge upon the District of Columbia, and finally a question concerning the propriety of holding him for a further hearing.

1. The appellant's confinement in Saint Elizabeths under the Treasury Department letter until the time of the order of remand on the writ of habeas corpus of January 26, 1937, was illegal. Insanity is not a crime and therefore the constitutional guaranty of jury trial is not applicable; nevertheless, confinement in a mental hospital is as full and effective a deprivation of personal liberty as is confinement in jail. The Fifth Amendment is applicable in the District of Columbia, Sims v. Rives, 1936, 66 App.D.C. 24, 31, 84 F.2d 871, 878, and cases cited; and it guarantees that no person shall be deprived of liberty without due process of law. Due process of law does not necessarily mean a judicial proceeding — the proceeding may be adapted to the nature of the case — but it does necessitate an opportunity for a hearing and a defense. Ballard v. Hunter, 1907, 204 U.S. 241, 255, 27 S.Ct. 261, 51 L.Ed. 461; Simon v. Craft, 1901, 182 U.S. 427, 437, 21 S.Ct. 836, 45 L.Ed. 1165; In re Bryant, 1885, 3 Mackey 489, 14 D.C. 489; see Logue v. Fenning, 1907, 29 App.D.C. 519, 525; cf. Matter of Lambert, 1901, 134 Cal. 626, 66 P. 851, 55 L.R.A. 856, 86 Am.St.Rep. 296; In re Wellman, 1896, 3 Kan.App. 100, 45 P. 726; State v. Billings, 1894, 55 Minn. 467, 57 N.W. 206, 794, 43 Am.St.Rep. 525; Allgor v. New Jersey State Hospital, 1912, 80 N.J.Eq. 386, 84 A. 711; In re Allen, 1909, 82 Vt. 365, 73 A. 1078, 26 L.R.A.,N.S., 232.¹ In Re Wellman, supra, a person alleged to be insane was committed to and confined in an institution without notice of the nature and pendency of the proceedings and without opportunity to be heard. The Court of Appeals of Kansas, in a habeas corpus proceeding, ordered discharge from the confinement, saying:

"Independently of statutes, every person is entitled to his day in court, and to the right to be heard before he is condemned. No mere ex parte proceeding can affect either personal or property rights. Were the legislature to attempt to enact a law authorizing judicial proceedings, the object of which was to affect the person or property of a citizen, without notice or opportunity to be heard, such legislation would be rejected and repudiated in advance as an intolerable outrage upon the rights of the citizen. It would not only be a serious infringement of natural rights, but would be a flagrant violation of the constitutional guaranty that no person shall be deprived of his liberty or property without due process of law.

"Notice and opportunity to be heard lie at the foundation of all judicial procedure. They are fundamental principles of justice which cannot be ignored. Without them no citizen would be safe from the machinations of secret tribunals, and the most sane member of the community might be adjudged insane and landed in a madhouse. It will not do to say that it is useless to serve notice upon an insane person; that it would avail nothing because of his inability to take advantage of it. His sanity is the very thing to be tried. At the threshold of the inquiry the court is supposed to have no knowledge of the mental condition, but the presumption of the law is in favor of sanity. Insanity, like crime, does not exist in law until it is established by evidence in a proper proceeding. A trial without notice — a mere ex parte proceeding — has no proper place in a court of justice. It is a nullity, and void as affecting those not parties to it." 3 Kan.App. at pages 103, 104, 45 P. at page 727

It is not intended by the quotation to cast doubt upon the good faith of the public officers who occasioned the transfer and confinement of the appellant. The question involved is one of principle.

The appellant in the instant case is held under a statute which makes no provision for a hearing and opportunity for defense, and so far as this record shows he had no hearing or opportunity for defense in respect of his transfer to Saint Elizabeths as an insane person. The statute, indeed, is by its plain terms not even intended as a lunacy commitment statute. It assumes insanity already determined and merely authorizes the Public Health Service to transfer insane patients to Saint Elizabeths and requires it to pay Saint Elizabeths the cost of their maintenance; and it authorizes Saint Elizabeths to receive such patients and care for them. Not only do the plain terms of the statute show this but its legislative context does as well. The Act of March 3, 1875, 18 Stat. 485, 486 was "An act to promote economy and efficiency in the marine-hospital service." Sections 1 and 2 required the Secretary of the Treasury to prepare a schedule of the average number of seamen required in safe and ordinary navigation of registered, enrolled and licensed vessels and provided for the assessment and collection from the master or owner of such vessels, of hospital dues calculated upon the average number of seamen as set forth in the schedule. Section 3, 24 U.S.C.A. § 1, defined the term "seaman" wherever employed in legislation relating to the...