In re King

• Citation: 36 N.E. 685,161 Mass. 46
• Parties: In re KING.
• Decision Date: 05 March 1894
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

161 Mass. 46

36 N.E. 685

In re KING.

Supreme Judicial Court of Massachusetts, Suffolk.

March 5, 1894.

Appeal from supreme judicial court, Suffolk county; James M. Barker, Judge.

Petition for a writ of habeas corpus by E.A. Webster Ross on behalf of William Henry King. From a decree remanding King, petitioner appeals. Dismissed.

Thomas Savage, for petitioner.

Shattuck & Munroe, for respondent.

FIELD, C.J.

Mrs. E.A. Webster Ross presented her petition to the supreme judicial court in behalf of William Henry King, praying that said King might be discharged from confinement in the McLean Asylum in Somerville, to which he had been committed as an insane person. A writ of habeas corpus was issued by the court, and Mr. King brought before the court. A guardian ad litem was appointed for Mr. King, and the guardianmade a report to the court. A hearing was had, and a decree entered remanding Mr. King to the custody of the asylum, and a petition by the original petitioner for a rehearing was denied. The petitioner appealed. She also filed exceptions, which were disallowed.

It does not appear from the papers that the petitioner is a relation of Mr. King, or has any interest, direct or contingent, in his property, or has any authority from him, if he could give any authority, to appear in his behalf. Pub.St. c. 185, § 4, provides as follows: “Application for the writ [of habeas corpus] shall be made to the court or magistrate authorized to issue the same by complaint in writing, signed by the party for whose relief it is intended, or by some person in his behalf,” etc. It is often necessary that the court or magistrate should receive a petition signed by some other person in behalf of the person imprisoned, because the person imprisoned may be prevented, by his imprisonment, from signing such an application; but when the person imprisoned is brought before the court or magistrate, and he is a person of full age and of sound mind, he then has control of the proceedings in his behalf. If the person imprisoned is a minor, or if there is reason to believe that he is not of sound mind, a next friend or guardian ad litem may be appointed by the court. After a next friend or guardian ad litem has been thus appointed, a stranger who shows no interest in the controversy cannot control the proceedings, and has no right to appeal from the decision of the court. The appeal in the present case, therefore, must be dismissed, even if an appeal by a proper party would lie. See Lawless v. Reagan, 128 Mass. 592.

There is, perhaps, some uncertainty about the practice of bringing questions of law before the full court in proceedings on habeas corpus. By Pub.St. c. 185, § 3, the writ may be issued by either of the courts named in that section, or by a judge of either of the courts, or, in certain cases, by a justice of the peace; and by section 5 the writ may be made returnable forthwith before the supreme judicial court, or before some justice thereof, in term time or vacation, whether the court is in session or not. By Id. § 7, when the writ is issued by a court in session “it shall be signed by the clerk, otherwise it shall be signed by the magistrate issuing the same.” By Id. § 16, “if the court to which the writ is returnable is adjourned before the writ is returned, the return shall be made before any one of the justices of the court; and if the writ is in any case returned before a justice at a time when the court is in session, such justice may adjourn the case into the court, to be there heard and determined in like manner as if the writ had been returned into court.” These provisions were enacted when there were terms of court, and when a court of common law could not hear causes in vacation. They were enacted that there might be a speedy hearing, whether the court was in session or not. Habeas corpus proceedings are regarded as proceedings at common law. In Wyeth v. Richardson, 10 Gray, 240, it was decided that exceptions do not lie to the discharge of a prisoner on habeas corpus by a single judge. In this case it seems to have been considered that the single judge did not sit as a court, but as a magistrate, and this is implied in the opinion. It is there said: “There is no appellate power over such decisions made at chambers by a justice of this court.” Section 21, c. 185, Pub.St., provides that, “until judgment is given, the court or judge may remand the party, or may bail him to appear from day to day, or may commit him to the sheriff of the county, or may place him under such other care and custody as the circumstances of the case may require.” If the hearing on habeas corpus is had before the court held by a single justice, a reservation of questions of law arising therein would, it seems, be authorized by Pub.St. c. 150, § 8, and a report “after verdict or decision by the court” would, it seems, be authorized by Pub.St. c. 153, § 6. The provisions in the Public Statutes concerning the writ of habeas corpus which we have cited were taken from Gen.St. c. 144, §§ 3, 5, 16, 24, and these substantially were taken from Rev.St. c. 111, §§ 3, 4, 6-9, 18, and these again were taken from St.1784, c. 72. The provision for adjourning the case into court was taken substantially from the fourth section of St.1784, c. 72. See St.1808, c. 80. When St.1784, c. 72, was passed, the supreme judicial court was composed of a chief justice and four other justices, and any three of them were authorized to hold a court, but the court could not be held by a single justice. This was also the law during the provincial period. Any one or more of the justices of the supreme judicial court was first authorized to hold a court by St.1804, c. 105, § 3, and exceptions were therein allowed to any opinion, direction, or judgment of the justice, to be heard by the court when held by three or more justices. The court held by three or more justices had, however, cognizance of all matters and things whatever which were within the jurisdiction of the court. Under the Revised Statutes, the jurisdiction of the court, when held by three or more justices, or held by any one of the justices, was defined by chapter 81, §§ 11-13 et seq. All issues of law were to be heard and determined exclusively in the full court, and questions of law arising in any proceedings had before a court held by a single justice might be reserved for the consideration of the full court, or exceptions might be taken to any ruling of the justice, (Id. §§ 29, 30;) but these statutes did not prohibit the full court from trying any questions of fact as well as of law in such proceedings as habeas corpus. The old cases show that writs of habeas corpus were often made returnable before a court held by three or more justices, and were tried by such court. Com. v. Harrison, 11 Mass. 63; Com. v. Cushing, Id. 67; Com. v. Chandler, Id. 83; Jones v. Kelly, 17 Mass. 116; Ross' Case, 2 Pick. 165; Riley's Case, Id. 172; Com. v. Waite, Id. 445; Com. v. Brickett, 8 Pick. 138;Com. v. Whitney, 10 Pick. 434;Com. v. Downes, 24 Pick. 227;Burnham v. Morrissey, 14 Gray, 226.Sanborn v. Carleton, 15 Gray, 399, was actually heard by Chief Justice Shaw in vacation. This case is more fully reported in 23 Law Rep. 8. See ...