The
question with which we are here confronted is whether or not
one who is adjudged insane by the insanity commission may on
appeal to the district court have the cause determined by a
jury.
Surprising
as it may seem, this question appears never before to have
been passed upon by this court.
Section
3560 of the 1935 Code is as follows: " 3560. Appeal. Any
person found to be insane, or his next friend, may appeal
from such finding to the district court by giving the clerk
thereof, within ten days after such finding has been made
notice in writing that an appeal is taken, which may be
signed by the party, his agent, next friend, guardian, or
attorney, and, when thus appealed, it shall stand for trial
anew. Upon appeal it shall be the duty of the county
attorney, without additional compensation, to prosecute the
action on behalf of the informant."
From
this it appears that the Legislature did not make any
definite provision concerning the manner of trial in cases of
this character, and it becomes necessary to look to other
provisions.
Section
10939 is as follows:
" 10939. Civil and special actions. A civil action is a
proceeding in a court of justice in which one party, known as
the plaintiff, demands against another party, known as the
defendant, the enforcement or protection of a private right,
or the prevention or redress of a private wrong. It may also
be brought for the recovery of a penalty or forfeiture.
Every
other proceeding in a civil case is a special action."
In the
case at bar there is no party plaintiff who demands anything
against the other party, Helen Brewer, or who seeks the
enforcement or protection of a private right or the
prevention or redress of a private wrong. The proceeding is
brought against one alleged to be mentally sick, for the
purpose of restraining that individual until she has
recovered. Therefore, under the provisions of the statute
above quoted, this is either a special action or a criminal
action. This court has time and again held that it is not a
criminal action.
In the
case of
County of Black Hawk v. Springer, 58 Iowa 417, at
page 418, 10 N.W. 791, this court said: " It is
contended that before a person can be adjudged insane he is
entitled to the safeguards provided for in this section. But
it is clear to us that this provision applies only to
criminal prosecutions or accusations for offenses against the
criminal law, where it is sought to punish the offender by
fine or imprisonment. The inquest of lunacy by a board of
commissioners is in no sense a criminal proceeding. The
restraint of an insane person is not designed as punishment
for any act done. The insane are by the law taken into the
care and custody of the state, for treatment for their
unfortunate infirmity. In our opinion, whatever may be
thought of the power of the legislative department of the
state to provide a special tribunal for the examination of
persons alleged to be insane, the safeguards and limitations
provided by our laws for the correction of any abuse which
may arise from the acts of the commissioners, are ample for
the protection of the citizen. By the act of the general
assembly approved March 26, 1880, any person found to be
insane by the commissioners of insanity, may appeal to the
circuit court, and upon such appeal the cause shall be tried
anew, and if the person is found not to be insane he shall be
discharged."
Section
11429 of the 1935 Code is as follows: " 11429. How
issues tried. Issues of fact in an ordinary action must be
tried by jury, unless the same is waived. All other issues
shall be tried by the court, unless a reference thereof is
made."
Since
an inquisition of insanity is not an ordinary action it must
fall under the second part of this section, wherein it is
provided that the issues shall be tried by the court.
In the
case of In re Bradley, reported in 108 Iowa 476, at page 479,
79 N.W. 280, 281 we find this court said: " In the case
at bar the appeal to the district court was from the action
of the board of supervisors in refusing to order the
construction of the ditch. We shall enter upon no extended
argument to show that this is a special proceeding. Under our
statute all controversies in courts of justice are
comprehended under one of two heads (Code, § 3424),-actions
or special proceedings. An action is a controversy in which
one party as plaintiff seeks against another known as ‘
defendant’ the enforcement of a private right or the
redress of a private wrong. Every other civil controversy is
a special proceeding. Id. § 3425. In this matter
there is neither a plaintiff nor defendant, though appellees
have sought to make it appear there is, by the manner in
which counsel entitled the documents filed in this court. Nor
is a private right claimed. What is asked is of a public
nature. The right of eminent domain cannot be exercised in
behalf of private interests only. Unless particularly
provided for, a jury is not usually allowed in a special
proceeding."
In Re
Bresee, reported in 82 Iowa 573, 48 N.W. 991, although this
court did not have before it the question with which we are
confronted, did point the way. We find the following, 82 Iowa
573, at pages 577, 578, 48 N.W. 991, 992:
" It is especially urged, in support of another trial,
that appellant was entitled to a trial by jury in the
district court. The determination of this question is
important. It is purely a special proceeding, and hence,
technically, not a ‘ civil action,’ which is
defined to be a proceeding in which one party known as the
‘ plaintiff,’ demands against another party,
known as the ‘ defendant,’ the protection of a
private right or the redress of a private wrong. Code, §
2505. Being another remedy in a civil case it is a special
proceeding. Id. § 2507. Special proceedings are not
classed as ‘ ordinary’ or ‘
equitable’ by the Code, and we may now consider its
provisions as to what causes are triable by jury. Section
2740 is as follows:
‘
Issues of fact, in an action by ordinary proceeding, must
be tried to a jury, unless the same is waived. All other
issues shall be tried by the court, unless a reference
thereof is made.’ The issues in this proceeding are
‘ other’ than those ‘ in an action by
ordinary proceedings,’ and hence, under the letter of
the statute, are to be tried by the court. It may be well
here to observe that proceedings denominated as ‘
special’ have been in this court, where the issues
below have been tried to a jury; but an examination will
show, we think, that in each of such cases the proceeding,
if special at its inception, had so changed in its progress
as to present parties plaintiff and defendant with private
rights to be determined, and, hence became an action by
ordinary proceedings.
It is
urged that appellant was entitled to a jury trial in the
district court, under the constitutional guaranties that the
right of trial by jury shall remain inviolate;
and in all criminal prosecutions, and in cases involving the
life or liberty of an individual, the accused shall have a
right to a speedy and public trial by an impartial jury.
These provisions are found in sections 9 and 10 of article 1
of the constitution of the state. In Black Hawk County v.
Springer, 58 Iowa 417, 10 N.W. 791, this court
considered the rights of a person charged with insanity to a
trial by jury under these provisions of the constitution, and
held that they applied ‘ only to criminal prosecutions
or accusations for offenses against the criminal law, where
it is sought to punish the offender by fine or
imprisonment.’ It is also there determined that the
‘ inquest of lunacy’ is not a criminal
proceeding. See, also, Chavannes v. Priestley, 80
Iowa 316, 45 N.W. 766, . It thus appears that
the constitution does not impair the statutory authority as
to how the issues in such a proceeding are to be tried."
We find
that this is a special proceeding, and, under the decisions
of this court, unless a jury is provided for, it is triable
to the court.
The
history of this statute is interesting. Section 859 of the
1851 Code provided: " Sec. 859. Inquiry. When the court
is informed that any person in the county is insane, and is
satisfied there is sufficient cause for an inquiry it may
cause the person to be brought before it and inquire into the
facts by testimony and may summon witnesses therefor, and a...
