portunity for the production and examination, rior court for a hearing and examination on of witnesses, what constitutes a reasonable opportunity must be determined by the circumstances of each case, and is within the sound discretion of the judge before whom the charge is heard. COURT. [Ed. Note. For other cases, see Drunkards, Cent. Dig. §§ 2-4, 9; Dec. Dig. 2.] 4. DRUNKARDS 2-COMMITMENT TO STATE INSTITUTION-PROCEEDINGS-DISCRETION OF Under Pol. Code, § 2185c, as added by St. 1911, p. 396, requiring the judge in a proceeding to commit an inebriate to the state hospital to give a reasonable opportunity for the production and examination of witnesses, where the judge informed the person proceeded against that he was entitled to subpoena witnesses and to examine them at the hearing in his own behalf, the fact that only a few hours could have intervened between the making of the order and the time specified therein for the hearing, does not show an abuse of discretion by the judge, in the absence of any request by the party for further opportunity. [Ed. Note. For other cases, see Drunkards, Cent. Dig. §§ 2-4, 9; Dec. Dig. 2.] 5. JURY 19-RIGHT TO TRIAL BY JURYNATURE OF RIGHT. One against whom proceedings for commitment to the state hospital as an inebriate were commenced is not entitled as of right to a jury trial, and Pol. Code, § 2185c, as added by St. 1911, p. 396, authorizing such commitment, is not unconstitutional for failure to provide for jury trial; the right secured by the Constitution being the right to a jury trial as it was recognized at common law. [Ed. Note.-For other cases, see Jury, Cent. Dig. §§ 104-133; Dec. Dig. 19.] Application by Jeremiah C. O'Connor for a writ of habeas corpus. Writ discharged, and prisoner remanded. Edward D. Wilbur, of San Francisco, for petitioner. Edward J. Tyrrel, of Oakland, and W. F. Stafford, of San Francisco, for respondent. He must be such charge. Such officer must thereupon, ar- Sections 2169 and 2170 of the Political "Sec. 2169. The superior judge may, for any hearing, issue subpoenas and compel the attendance of witnesses and must compel the attendance of at least two medical examiners, who must hear the testimony of all witnesses, make a personal examination of the alleged insane person, and testify before the judge as to the result of such examination, and to any other pertinent facts within their knowledge. The judge must also cause to be examined before him as a witness, any other person whom he has reason to believe has any knowledge of the mental condition of the alleged insane person or of his financial condition or that of the persons liable for his maintenance. The alleged insane person must be present at the hearing, and if he has no attorney, the judge may appoint an attorney to represent him. making the examination and hearing the testi"Sec. 2170. If the medical examiners, after mony, believe such person to be dangerously insane, they must make a certificate, under their hand, showing as nearly as possible the facts as herein indicated, and in substantially the fol HART, J. The petitioner was on the 9th day of June, 1915, by the Hon. John J. Van Nostrand, a judge of the superior court in and for the city and county of San Francisco, committed, under and by virtue of the pro-lowing form." visions of section 2185c of the Political Code (Stats. 1911, p. 396), to the Napa State Hospital for the cure and treatment of the insane. The petitioner insists that the order of commitment under which he is held at the state hospital is void for reasons to be hereafter noticed, and that therefore his con· finement in said institution involves an unlawful restraint of his personal liberty. So much of section 2185c of the Political Code as is necessary to a clear understanding of the points made by the petitioner reads: "Whenever it appears by affidavit to the satisfaction of a magistrate of a county, or city and county, that any person is so far addicted to the intemperate use of narcotics or stimulants as to have lost the power of self-control, or is subject to dipsomania or inebriety, he must issue and deliver to some peace officer for service, a warrant directing that such person be arrested and taken before a judge of the supe Then follows the form of the certificate of the medical examiners appointed to investigate the condition of the patient, which must, among other things, contain a general statement of the facts from which the medical examiners have reached the conclusion that the patient "is so far addicted to the intemperate use of narcotics or stimulants as to have lost the power of self-control, or is subject to dipsomania or inebriety." The petitioner presents and urges several different and distinct grounds upon which he bases the claim that his commitment to the state hospital was beyond the authority of the judge to order. These are: (1) That a copy of the affidavit upon which the warrant for his arrest was issued and of said warrant of arrest were not personally delivered to him at the time of his arrest; (2) For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes The order fixing the time for the hearing of the charge, as does the judgment or order of commitment, recites that the petitioner was brought before the judge on the 9th day of June, 1915, upon a warrant issued upon an affidavit sworn to by Jeremiah O'Connor, Jr., that he was then and there, in open court, informed of the charge alleged in said affidavit against him, and was further informed of his rights to make a defense to such charge, and to be represented by counsel, and produce witnesses in relation to such charge. The order fixing the time for hear served on the petitioner, the time for the hearing having been fixed for the hour of 11 a. m. of said 9th day of June, 1915, and one Roseberg certified that he served said order on the petitioner by delivering to him a copy of the same. that the time fixed by the judge after the pe- | rected in said warrant, personally to said titioner was brought before him for the hear- Jeremiah O'Connor at the time of his arrest." ing of the charge was not such as to afford to the petitioner "a reasonable opportunity for the production and examination of the witnesses"; (3) that the petitioner was, as a matter of right, entitled to a trial by jury upon the charge preferred against him, and that, such right having been denied to him, his commitment to the state hospital was not the crystallization of a trial according to due process of law, and that section 2185c, by reason of the absence therefrom of a provision giving to persons charged thereunder the right of trial by jury, is unconstitutional. [1, 2] Obviously the sole ultimate questioning also required that a copy of the same be which is involved in a proceeding on habeas corpus is one merely of jurisdiction; that is, whether the order or the judgment or the adjudication or the process whose validity is thus attacked and questioned was one coming within the lawful authority or jurisdiction of the judge or the court or other legally constituted tribunal making, granting, or issuing it. And, since it is clear that the judge making the adjudication assailed through this proceeding is by law invested with jurisdiction of the subject-matter thereof, and that he acquired jurisdiction of the person of the petitioner, it must be assumed, in this collateral attack upon the adjudication, in the absence of a contrary showing appearing upon the face of the judgment roll, if it may so be called, that the proceedings leading to the judgment or order of commitment were in all respects regular or had in accordance with the vital requirements of the statute author-informed of all the rights guaranteed to a izing the commitment. Ex parte Clary, 149 Cal. 735, 87 Pac. 580; State Commission in Lunacy v. Eldridge, 7 Cal. App. 298, 94 Pac. 597, 600; Ex parte Lewis, 11 Cal. App. 530, 105 Pac. 774; Gridley v. College of St. Francis, 137 N. Y. 327, 33 N. E. 331. These observations apply particularly to the first two points, in the order above given, against the validity of the commitment. The affidavit upon which the warrant of arrest was issued was made and filed by Jeremiah O'Connor, Jr., a son of the petitioner, on the 8th day of June, 1915, and on that day was, with a copy thereof and a copy of said affidavit, given into the hands of a police offi cer. The certificate of the officer executing the warrant, and which is a part of the record in the proceedings, recites that said officer re ceived said warrant on the 8th day of June, 1915, and served the same by arresting said Jeremiah O'Connor, alleged to be an inebriate, and brought him before Hon. John J. Van Nostrand, judge of the superior court of the state of California in and for the city and county of San Francisco on the 8th day of June, 1915, "and I further certify," continues the certificate, "that I delivered a copy of said warrant of arrest, together with a copy of the affidavit of intemperance, as di Thus it will be observed that there is absolutely no ground for the contention that a copy of the affidavit, and the warrant was not personally delivered to the petitioner at the time of his arrest, as the statute requires shall be done. [3, 4] As to the point that the petitioner was not accorded “a reasonable opportunity for the production and examination of witnesses," as the statute requires, we cannot say that the judge abused his discretion in that regard. As has been shown, the record discloses that the petitioner, upon being brought before the judge, was by the latter person charged under section 2185c with being an inebriate or dipsomaniac. He was exwitnesses and to examine them at the hearplicitly told that he was entitled to subpoena ing in his own behalf. What constitutes the "reasonable opportuwhich the statute contemplates shall be given nity" to produce and examine witnesses a person charged and examined under section 2185c of the Political Code is a matter which must be determined by the circumstances of each particular case, and thus the matter is one whose determination rests in the sound discretion of the judge before whom the charge is pending and heard. This court so held in the case of In re Lewis, on habeas corpus, 11 Cal. App. 530, 532, 105 Pac. 774, where the petitioner, an insane patient, was examined under the provisions of section 2168 et seq., Political Code, and wherein he raised the identical point under consideration; the section just named also providing that the patient must be given "a reasonable opportunity for the production and examination of witnesses." We there, among other things, said: "The determination of what is 'reasonable opportunity' is committed by the statute to the sound discretion of the court, to be exercised in particular case, and, where it does not appear view of the surrounding circumstances of each on the face of the proceedings that such discre tion has been abused, the judgment of the court, for the alleged reason that the person adjudged insane has not been given a reasonable opportunity to produce his witnesses and cause them to be examined touching his mental condition, cannot be disturbed." the value of his property passed upon and determined by a jury. The Supreme Court upheld the validity of the statute, saying, through Field, J.: "The provision of the Constitution that 'the and remain inviolate forever,' applies only to right of trial by jury shall be secured to all, civil and criminal cases in which an issue of fact is joined. The language was used with reference to the right as it exists at common law. * *It is in this common-law sense that the language has always been regarded by the courts of this state. It is a right 'secured to all,' and 'inviolate forever,' in cases in which it is exerto the course of the common law, as that law is cised in the administration of justice according understood in the several states of the Union. It is a right, therefore, which can only be claimed in actions at law, or criminal actions, where an issue of fact is made by the pleadings. It cannot be claimed in equity cases, unless such issue be specially framed for a jury under the It cannot be asserted direction of the court. upon the issue at law; for that is a matter purely for the court. The fact, therefore, that property and rights of property may be involved in the disposition of a particular case or proby jury. There must be an action at law, as ceeding does not determine the right to a trial contradistinguished from a suit in equity, and from a special proceeding, or a criminal action, and an issue of fact joined therein upon the pleadings, before a jury trial can be claimed as a constitutional right.' The statute does not provide that any particular space of time shall intervene between the time at which the order is made fixing a time for the hearing and the time so fixed, and the mere fact that in this case there could have intervened only a few hours between the time of making the order and the time specified therein for the hearing does not necessarily justify the conclusion that the petitioner was not accorded a "reasonable opportunity" to produce and examine his witnesses. Whether the petitioner availed himself of this right by having witnesses produced and examined is not made affirmatively to appear in the record. Indeed, the law nowhere requires that that fact shall be so made to appear. But it is to be assumed that, had the petitioner, having been informed of his rights in that regard, made a demand for the production of witnesses and presented the names of such witnesses, the judge, in obedience to the duty expressly enjoined upon him by the statute, would have given the Under the common law, there was no inpetitioner ample opportunity to have produc- quisition precisely like that authorized by ed such witnesses, and, if necessary for that section 2185c of the Political Code. purpose, have continued the hearing to some nearest approach thereto were the proceedfuture time. It does not appear in the rec-ings, under the writs of de idiota inquirendo ord that any such demand or request was made by the petitioner. Upon this point we conclude that upon no view of the record can it be said that the petitioner was denied the "reasonable opportunity" for the production and examination of witnesses to which he was entitled under the statute. [5] 3. The contention that the petitioner was entitled as of right to a trial by jury is untenable, and it follows, therefore, that section 2185c is not unconstitutional because it omits to provide for a trial by jury in cases arising under its provisions. The right of trial by jury secured by the Constitution is the right to a jury trial as it existed and was recognized at common law. Koppikus v. State Capitol Commissioners, 16 Cal. 249; Cassidy v. Sullivan, 64 Cal. 266, 28 Pac. 234; Woods v. Varnum, 85 Cal. 639, 644, 24 Pac. 843; People v. Powell, 87 Cal. 348, 25 Pac. 481, 11 L. R. A. 75; Ex parte Wong You Ting, 106 Cal. 296, 39 Pac. 627; In re Fife, 110 Cal. 8, 42 Pac. 299. The Koppikus Case involved the question whether an act of the Legislature providing for the construction of the state capitol in Sacramento and investing the state capitol commissioners with the power and authority of appraising the value of the property upon which the capitol building was to be erected and making an award to the owner of the same, in accordance with such appraisement, was unconstitutional, in that it denied to the owner the right to have the issue as to The and de lunatico inquirendo, which were analogous to the proceeding for like purpose under our law, whereby the question of the insanity or idiocy of one was investigated, with a view of committing him for treatment or safe-keeping, if he were found to be either a lunatic or an idiot. While in the earlier history of the common law, when the profits of the lands of one found to be an idiot or lunatic passed to the crown, the issue was tried by a jury of twelve men, yet in later times, when mental diseases of a nature to impair the will came to be recognized as curable and appropriate subjects of governmental cognizance, proceedings looking to the determination of whether a person was of unsound mind to the extent of being unable to take care of himself and his property rights or of being dangerous to the safety of the public were summarily conducted or prosecuted without the intervention of a jury; due provision being made for the care and preservation of the patient's estate while he remained mentally incompetent and the return of the same and its profits to him if he recovered from his malady, and for the proper disposition thereof should he die a non compos mentis. 3 Blackstone, p. 428; 1 Blackstone, pp. 303–305. The theory upon which such inquisitions were conducted in a summary manner or without the aid of a jury was doubtless that the proceeding does not involve an inquiry as to whether a crime had been committed, nor was the commitment of the patient in said: tended as a punishment, but that its purpose the further provision of the Constitution was for the sole benefit of the patient, by that no person shall be deprived of his facilitating the proper treatment for his dis- liberty without due process of law was vioease, and at the same time protecting his es-lated. The court, rejecting the contention, tate from being lost or destroyed by that improvidence which necessarily accompanies a defect of will or understanding or by impositions practiced upon the incompetent by those ever ready to enrich themselves by any means, however unconscionable, that may become available to them. And so it is true as to the proceeding under section 2185c of our Political Code. Said proceeding does not involve the investigation of a criminal act, nor is the detention of the patient for the period prescribed by said section penal punishment or intended as such. And, as was said by the Supreme Court of Iowa, in the case of In re Bresee, 82 Iowa, 573, 48 N. W. 991, where the main question was whether an alleged insane patient was entitled to have the question of her sanity tried by a jury: "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." See sections 22 and 30 of our Code of Civil Procedure. The object of the statute is merely to authorize the state to take charge of and force treatment upon those so far addicted to the intemperate use of alchoholic liquors or narcotics as to have lost the power of self-control or to have become inebriates or dipsomaniacs. The legislation represents in reality the exercise only of the police power, whereby the state may control or correct the individual habits of its citizens where such habits are or may become a menace to the peace, comfort, "good neighborhood," and health of the commonwealth. The proceeding does not involve a trial, but, in analogy to the common law proceeding in insanity cases, is a mere inquisition, by way of a special proceeding, the determination of which should be left, as the law intends, largely to persons possessing the learning of experts, and not to laymen, of whom juries are ordinarily composed, and who do not, nor are expected to, possess the training and learning essential to a just and intelligent solution of a scientific question such as is necessarily involved in a proceeding whose purpose is to ascertain and determine whether a person, from whatsoever cause, is suffering from some serious mental infirmity. But the position here taken is well buttressed by authority. "It is obvious that these provisions of the Constitution have no application whatever to the police judge here in question did not amount the case of this minor child. The action of to a criminal prosecution, nor to proceedings against the minor according to the course of the common law, in which the right of trial by jury ishment for offenses done, but reformation and is guaranteed. The purpose in view is not puntraining of the child to habits of industry, with a view to his future usefulness when he shall have been reclaimed to society, or shall have attained his majority. Having been abandoned by his parents, the state, as parens patriæ, has succeeded to his control, and stands in loco parentis to him. The restraint imposed upon him by public authority is in its nature and purpose the same which, under other conditions, is habitually imposed by parents, guardians of the person, and others exercising supervision and control over the conduct of those who are, by reason of infancy, lunacy, or otherwise, incapable of properly controlling themselves"-citing Ex parte Crouse, 4 Whart. (Pa.) 9, and Prescott v. State, etc., 19 Ohio St. 184, 2 Am. Rep. 388. In Re Bresee, 82 Iowa, 573, 48 N. W. 991, supra, it is said: "It is urged that the appellant [an alleged insane patient] was entitled to a jury trial in the district court, under the constitutional guaranties that the right of trial by jury shall remain in cases involving the life or liberty of an ininviolate; and in all criminal prosecutions, and dividual, 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.'' In County of Black Hawk v. Springer, 58 Iowa, 417, 10 N. W. 791 (the case referred to in the Bresee Case), the Iowa court thus expressed itself: * 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 donc. 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 tions provided by our laws for the correction alleged to be insane, the safeguards and limitaof any abuse which may arise from the acts of the commissioners are ample for the protection of the citizen." In Ex parte Ah Peen, 51 Cal. 280, the In Crocker v. State, 60 Wis. 553, 556, 19 petitioner, a minor, had been committed to an N. W. 435, the Supreme Court of Wisconsin industrial school in accordance with the says that the common-law right of trial by provisions of an act of the Legislature of jury, as guaranteed by the Constitutions of 1858. He claimed that his commitment was that and other states, extends neither to illegal because he had been denied the right, proceedings to commit infants to an industriguaranteed by the Constitution, to a trial al school or a house of refuge nor to the party, and in support of this proposition cites | rection of the court, without the intervention Ex parte Crouse, 4 Whart. (Pa.) 9; Prescott of a jury. And this latter system prevailed v. State, 19 Ohio St. 184, 2 Am. Rep. 388; long prior to the time when Sir William Ex parte Ah Peen, 51 Cal. 280; Petition of Blackstone gave to the civilized world his Ferrier, 103 Ill. 367, 43 Am. Rep. 10; justly celebrated and splendid commentaries Milwaukee Ind. School v. Milwaukee Co., on the English common law. 40 Wis. 328, 22 Am. Rep. 702; Gaston v. Babcock, 6 Wis. 503; Shroyer v. Richmond, 16 Ohio St. 455; Hagang v. Cohnen, 29 Ohio St. 82. But we need not further multiply cases upon the proposition in hand. They are numerous, and, like the cases above examined, all to the effect that, where the state Constitution guarantees the common-law right of trial by jury, only those cases in which that right was habitually exercised according to the course of the common law come within the terms of the guaranty, and that an inquisition of insanity is not one of those cases. The De Hart Case involved the question whether a statute of New Jersey expressly requiring a jury of 12 men for the determination of the question whether a person was insane or afflicted with some other mental infirmity justifying his detention amounted to a denial to the alleged incompetent of the constitutional right to a trial by jury because it provided that the sheriff should summon 12 instead of 24 persons for that purpose. And, as before intimated, in all the cases where it is held that one charged with insanity is entitled to have the question tried by jury such right is purely statutory or expressly conferred by legislative mandate. Very clearly, if the section of the Code in question here, like our statute governing the investigation of cases of alleged insanity (Pol. Code, § 2174), authorized or required the question of inebriety to be tried by a jury, such requirement, whatever its terms or conditions, if reasonable, would have to be complied with; but the right thus allowed would not be the constitutional or common-law right of trial by jury. But the Legislature has not so ordained as to the trial of questions arising under section 2185c of the Political Code, nor, for reasons already given, does said section violate any of the constitutional guaranties because there is omitted therefrom a provision according to a person charged under its provisions the right of trial by jury. Indeed, if, as the petitioner contends, he is entitled to a trial by jury as of right or by virtue of the constitutional guaranty with respect to trial by jury, it would be altogether unnecessary for the Legislature to declare such right in the statute. The cases and authorities cited by the learned counsel for the petitioner have reference to cases where the Legislature has provided that the question of insanity shall be tried by a jury. In none of them, except in the case of De Hart v. Condit, 51 N. J. Eq. 611, 28 Atl. 603, 40 Am. St. Rep. 545, is there any declaration approaching the statement that the right to a jury trial in such cases is the common-law right. And in the case mentioned it is merely stated, as we have already explained (quoting Blackstone), that under the old common law, proceedings under a writ of de idiota inquirendo or de lunatico inquirendo were had before a jury, and this for the obvious reason that with the adjudication of the person's idiocy or insanity passed the issues and profits of his estate, during the existence of his infirmity, to the crown. In such a proceeding the property rights of the alleged incompetent were to some extent involved, and quite logically, in harmony with the recognized and zealously guarded polity of the British government, after its establishment upon the conquest of William the Conqueror, with respect to the rights of property and the right to a trial by jury where those property rights are affected or questioned, the natural and appropriate mode for determining whether the subject's property should be taken from him, or, substantially, escheated to the crown in such cases, was by a jury of disinterested persons of good common intelligence. As we (District Court of Appeal, Third District, Calihave already shown, after provision was made for the safe-keeping and preservation of the incompetent's estate and the issues and profits thereof, to be returned to him In an action for breach of a contract to upon his restoration or devolved upon his take and market apples, assuming that the jury heirs should he die without recovering from due to defendant's failure to perform the conwere justified in finding that plaintiff's loss was his malady, there was no longer allowed a tract, and that defendant agreed to pay plaintrial of the question of the alleged incom- tiff 50 cents per box net for his apples, and not petent's idiocy or insanity by a jury, but the $10 per ton or 23 cents per box, Civ. Code, § 3300, providing that on breach of an obligation ariswhole question was committed for determina-ing from contract the measure of damages is tion to a court or a committee, under the di- the amount which will compensate the injured The result of the foregoing views is, obviously, that the writ must be discharged, and the petitioner remanded; and it is so ordered. We concur: CHIPMAN, P. J.; BURNETT, J. GRIFFITH v. WELBANKS & CO. fornia. Dec. 21, 1915.) 1. SALES 384 BREACH OF CONTRACT MEASURE OF DAMAGES-STATUTE. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |