Ex Parte Allen

• Decision Date: 06 October 1909
• Citation: 82 Vt. 365,73 A. 1078
• Parties: EX PARTE ALLEN.
• Court: Vermont Supreme Court

73 A. 1078

82 Vt. 365

EX PARTE ALLEN.

Supreme Court of Vermont. Lamoille.

Oct. 6, 1909.

[Copyrighted material omitted.]

Habeas corpus for the discharge of Lydia Ann Allen from the state hospital for the insane. Writ granted.

Argued before MUNSON, WATSON, HASELTON, and POWERS, JJ.

F. S. Rogers, for relator.

WATSON, J. It appears from the complaint and the respondent's return that Lydia Ann Allen was committed to the Vermont State Hospital for the Insane at Waterbury on the 17th day of October, 1906, by virtue of an order of removal made by the judge of probate for the district in which she lives, as an insane state pauper, and the certificate of two physicians as to her insanity was left with the respondent as superintendent of said hospital by the authorized person executing the order and in connection therewith, and that by virtue of said order and the certificate of the physicians, and not otherwise, she hitherto has been and now is there detained. It is alleged in the complaint that the said Lydia Ann has never had any hearing nor notice of any hearing on the question of her insanity, nor on the question of her removal and commitment to the hospital and confinement therein, and that all proceedings under which she was thus committed and is now detained are illegal, unconstitutional, and void. No claim is made but that the certificate of insanity was made by legally qualified physicians and upon an examination made by them in accordance with the specific provisions of the statute under which they acted; but it is said that those provisions do not answer the requirements of due process of law guaranteed by the Constitutions of this state and of the United States.

By P. S. 3753, no person except as provided in chapter 167 shall be admitted to or detained in a hospital for the insane as a patient or inmate except upon the certificate of such person's insanity made by two legally qualified physicians, residents of this state. The certificate shall contain a statement that the physicians making the same are each legally qualified to practice as a physician in the state and the reasons for adjudging such person insane. By section 3754 the physicians shall subscribe and make oath to the certificate before a magistrate authorized to administer oaths. The magistrate shall append thereto his jurat, and certify therein that the physicians are of unquestionable integrity and skill. By section 3755 the certificate shall be made and sworn to not more than 10 days before the admission of the insane person to the hospital for the insane unless a longer time is required to dispose of an appeal taken from the decision of the physicians as provided by law, and shall be in the hands of the proper officer of the hospital at the time the insane person is received therein. By section 3756 the certificate of the physicians shall be given only after a careful examination of the supposed insane person made not more than five days previous to making the certificate. As seen this statute requires the physicians to make a careful examination of the supposed insane person within a specified time before giving a certificate, but it contains no provision for prior notice to such person, and there would seem to be no difficulty in making an examination requisite to a certificate in compliance with the requirements of the statute without any knowledge or suspicion by the one under examination as to what is being done, or the purpose of it. An appeal from the decision of the physicians to the board of supervisors of the insane could be had by the next friend or relative of the person whose insanity was so certified (P. S. 3757), but no right of appeal was given to such person, nor was there any provision explicitly requiring the examination of the case by the appellate board to be on notice to him, nor in his presence, when an appeal was taken by one having such right. No appeal was taken in this instance, consequently that particular portion of the statute is material here only as it is a part of the whole involved and necessarily examined in the proper solution of the constitutional question presented. By P. S. 3715, insane persons in a town destitute of means to support themselves, and without relatives in the state bound by law to support them, shall while in a hospital for the insane be supported by the state. By section 3716 the selectmen of such town shall on application of the overseer of the poor ascertain whether such insane person is liable to be supported by the state, and may institute a court of inquiry before the judge of probate of the district in which the town is situated, giving at least 10 days' notice thereof to the state's attorney of the county. By section 3717 the state's attorney, or, in case he is unable to attend, an attorney appointed by the probate court, shall investigate the case; and, if he finds that the insane person is not liable to be supported by the state, he shall attend the court of inquiry, and produce, at the expense of the state such witnesses and testimony as he deems advisable for the protection of the rights of the state. By section 3718, if the judge of probate finds from the evidence that such insane person is liable to be supported by the state, as aforesaid, and the insanity of such person is certified in writing, duly sworn to, by two legally qualified physicans, residents of this state, "he shall issue an order for the removal of such insane person to the Vermont State Hospital for the Insane at Waterbury, or to the Brattleboro Retreat at Brattleboro, to be there supported." By section 3710 an officer or other person appointed by the judge of probate shall remove such insane person to said hospital or retreat, and leave with the superintendent or one of the trustees thereof a copy of such order, with his return thereon, and also the certificate of the two physicians as to the insanity of such person, which shall be a sufficient warrant for receiving him therein.

It will be observed that, when a court of inquiry is instituted under the statutory provisions above given, the only notice in terms required is to the state's attorney of the county, and his duties in the premises pertain solely to the protection of the rights of the state. The statute is silent regarding notice to the alleged incompetent, than whom, from a legal point of view, no one can have a greater interest in the matters and things there to be heard and determined. Thus securing his confinement in the hospital for the insane, as an Insane state pauper, may be at the request of loving friends and relatives prompted by honest intentions and by considerations looking to the most humane and beneficial treatment that can be given to an unfortunate of that class, or it may be part of a scheme by those seeking to get rid of him personally, or to deprive him of his just property rights, or as relatives to avoid the statutory liability for support, concerning the facts of which his knowledge would to them be most damaging and perhaps sufficient to thwart their sinister intent and purpose altogether if he be given sufficient notice and an adequate opportunity to defend. At common law an insane person may be temporarily restrained without legal process, and, if need be, in an asylum, if his going at large would be dangerous to himself or to others, preliminary to the institution of judicial proceedings for the determination of his mental condition, and such a restraint does not violate any constitutional provision. Colby v. Jackson, 12 N. H. 526; Keleher v. Putnam, 60 N. H. 30, 49 Am. Rep. 301; Porter v. Ritch, 70 Conn. 235, 39 Atl. 169, 47 L. R. A. 353; Look v. Dean, 108 Mass. 116, 11 Am. Rep. 323. When, however, as in the case at bar, the confinement is permanent in nature, the person thus confined is deprived of his liberty which, in order to be lawful, must be in pursuance of a judgment of a court of competent jurisdiction after such person has had sufficient notice and an adequate opportunity to defend. It is no answer to say the person is insane and consequently notice to him will be useless, for that is assuming as a fact the very thing in question and which is presumed to be otherwise until proved. Such notice and opportunity are required by the Constitution of this state (chapter 1, art. 10) wherein it reads: "Nor can any person be justly deprived of bis liberty except by the laws of the land, or the judgment of his peers." And by the fourteenth amendment to the federal Constitution that no state shall "deprive any person of life, liberty, or property, without due process of law." Louisville & Nashville R. R. Co. v. Schmidt, 177 U. S. 230, 20 Sup. Ct. 620, 44 L. Ed. 747; Simon v. Craft, 182 U. S. 427, 21 Sup. Ct. 836, 45 L. Ed. 1105; McCurry v. Hooper, 12 Ala. 823, 46 Am. Dec. 280; In re Lambert, 134 Cal. 626, 66 Pac. 851, 55 L. R. A. 856, 86 Am. St. Rep. 296; Supreme Council R. A. v. Nicholson, 104 Md. 472, 65 Atl. 320, 10 Am. & Eng. Ann. Cas. 213; Chase v. Hathaway, 14 Mass. 222; Hathaway v. Clark, 5 Pick. (Mass.) 490; Evans v. Johnson, 39 W. Va. 299, 19 S. E. 623, 23 L. R. A. 737, 45 Am. St. Rep. 912; State v. Billings, 55 Minn. 467, 57 N. W. 206, 794, 43 Am. St. Rep. 525; Doyle, Petitioner, 16 R. 1. 537, 18 Atl. 159, 5 L. R. A. 359, 27 Am. St. Rep. 759.

As before seen, the statute in question contains no specific provision for notice to the alleged insane person of the institution of proceedings for a court of inquiry to ascertain whether he shall be removed to the hospital for the insane as a state charge. Yet it does not follow that the statute is wanting in due process of law. In Rex v. Benn, 6 T. R. 198, Lord Kenyou, C. J., said: "It is an invariable maxim in our law that no man shall be punished before he has had an opportunity of being heard." And the same principle is stated in Harper v. Carr, 7 T. R. 270, and Reg. v. Simpson, 10 Mod. 375. In Mead v. Deputy Marshal, 1 Brock. 324, Fed. Cas. No. 9,372,...