The dissenting opinion of our chief justice prompts me to state the reasons why I concur in the opinion of Mr. Justice Givens.
The statute governing this case is chapter 2 of title 64 of our code. That chapter, commencing with sec. 64-201, extending to and including sec. 64-215, relates to the arrest, hearing and commitment of persons so far disordered in mind as to endanger health, persons, or property, sometimes referred to as insane persons. Section 64-216, relates, exclusively, to persons so far addicted to the intemperate use of narcotics or stimulants as to have lost the power of self-control, or who are subject to dipsomania or inebriety. It is necessary, in order that we may have a correct understanding of this case, that we keep in mind the distinctions which exist between sec. 64-216 and the sections of the chapter which precede it. Words appearing in italics are not so printed in the code. They are italicized here for emphasis.
"64-201. Whenever it appears by affidavit to the satisfaction of a magistrate of the county that any person within the county is so far disordered in his mind as to endanger health,persons, or property, he must issue and deliver to some peace officer for service a warrant, directing that such *Page 152 person be arrested and taken before any judge of a court of record within the county for examination.
"64-202. Whenever a person is charged with being so fardisordered in his mind as to endanger health, persons, orproperty or shall be charged with being insane, it shall be the duty of the judge before whom the accused person is brought for examination to immediately ascertain from such person or otherwise if said person so accused or charged is represented by an attorney and the said judge shall not proceed with any examination of said accused until such person is so represented; and if such person is not represented by an attorney, before any further proceedings shall be had it shall be the duty of said judge to immediately designate and appoint a licensed and practicing attorney of the county in which such examination is being had who has been a licensed and practicing attorney for not less than three years in Idaho immediately preceding his appointment, to defend said person so accused ofbeing disordered in his mind or otherwise insane; and it shall be the duty of said attorney so appointed to immediately examine into the merits of said charge or affidavit specified in section 64-201 and to defend the rights of the person so accused; and no person shall, after the taking effect of this section, be committed to an insane asylum unless the commitment or the record of the proceedings affirmatively shows that such person was represented by counsel as herein specified, and the judge shall have no jurisdiction to commit a person to the insane asylum unless this section has been complied with. If the person accused of being disordered in his mind is unable to pay for the services of said attorney the judge, before whom said examination is had, shall allow such appointed attorney a sum not less than ten dollars nor more than twenty-five dollars which shall be certified by the judge to the county commissioners; and it shall be the duty of said county commissioners to audit and allow such claim: provided, however, that in case of a protracted trial the judge may, in his discretion, allow a further compensation not to exceed the sum of fifty dollars: provided, however, that nothing in this section shall be construed to prevent the accused *Page 153 person from employing any attorney at his own expense that he may see fit.
"64-209. The judge, after such examination and certificate made, if he believes the person so far disordered in his mind as to endanger health, person, or property, must make an order that he be confined in the insane asylum."
It will be observed that sec. 64-202 provides for the examination of one charged with being either so far disorderedin his mind as to endanger health, person, or property, orcharged with being insane; that at such examination the person so charged shall be entitled to be represented by an attorney and no examination shall be had unless he is so represented. Furthermore, he cannot be committed to an asylum unless the commitment, or the record of the proceedings, affirmatively shows that he was represented by counsel. After the examination prescribed in sec. 64-202 the judge, if he believes the person examined to be so far disordered in his mind as to endangerhealth, person, or property, must make an order that he be confined in the insane asylum. That section makes no provision for fixing the duration of the confinement.
Let us compare the foregoing sections with 64-216. It provides:
"64-216. Whenever it appears by affidavit to the satisfaction of a magistrate of the county, that any person within the county is so far addicted to the intemperate use of narcoticsor stimulants as to have lost the power of self-control, or issubject 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 the district court of the county, or the judge thereof, for a hearing and examination on such charge. Such officer must thereupon arrest and detain such person until a hearing and examination can be had. . . . . He must be taken before the district court, or the judge thereof, to whom said warrant and affidavit of arrest must be delivered to be filed with the clerk. . . . . The hearing and examination shall be had in compliance with the provisions of section 64-203 to 64-207. . . . . The judge, after such hearing and examination, if he believes the person is so far addicted tothe intemperate use of narcotics or stimulants *Page 154 as to have lost the power of self-control, or is subject todipsomania or inebriety, must make an order that he be confined in one of the state insane asylums which shall be designated in said order, . . . . Such order and statement shall be in substantially the form provided by section 64-209 for the commitment of insane persons. The said court, or the judgethereof, shall commit such person for a definite period, not toexceed two years, but provided that he may be paroled or released under the same rules and conditions that the insane are paroled and released. . . . ."
In order to justify the commitment of one accused, pursuant to the provisions of sec. 64-216, the judge must be convinced that such person is "so far addicted to the intemperate use ofnarcotics or stimulants as to have lost the power ofself-control or is subject to dipsomania or inebriety." If he is so convinced it becomes his duty to "commit such person fora definite period, not to exceed two years." That section does not provide for representation of the accused at public expense.
With these statutory provisions clearly in mind, an examination of the commitment shows appellant was brought before the district court for examination on the charge of inebriety that an attorney was appointed to represent her; that witnesses were sworn and examined, whereupon the court found: "and being myself satisfied that she is so far disordered in mind as to injure health, person, or property, and after satisfactory proof as to the truth of all set forth in the certificate of the said physicians; THEREFORE, It is ordered that she be confined in the insane asylum at Blackfoot, Idaho, and that the Sheriff of Ada County is hereby ordered to deliver the said person to the agent appointed by the medical superintendent for the conveyance of such person to the asylum."
While the order of commitment shows appellant was brought before the court on a charge of inebriety it also shows that, after a hearing had, she was committed to the asylum because she was so far disordered in mind as to endanger health,person, or property. In receiving and detaining appellant in the insane asylum the superintendent followed the clear mandate of the order of commitment, which the court had jurisdiction to issue, and is protected thereby. *Page 155
Something is said in the dissenting opinion to the effect that the law presumes all persons sane until the contrary is shown. That rule does not apply to one confined in an insane asylum, pursuant to an order of commitment, issued by a court of competent jurisdiction, based on a finding that she is so far disordered in her mind as to endanger health, person, or property.
Justice Holden authorizes me to say he concurs in the views herein expressed.