The effect of section 15, art. 1, of the Constitution of Texas, wherein it is provided that "the right of trial by jury shall remain inviolate," was to perpetuate the right in those cases wherein, at the date of its adoption, it had been universally recognized and become firmly established. Cockrill v. Cox, 65 Tex. 669.
Without reviewing in detail the history of the legislation upon the subject, it is sufficient to say that by the eighth section of the Act of February 5, 1858 (4 Gammel's Laws, 986), it was provided that proceedings to adjudge one a lunatic should be had before the Chief Justice of the county, and a jury should be summoned and impaneled to try the matter. This remained the law until the adoption of the present Constitution. The right to a trial by jury in a lunacy proceeding thus existing when the Constitution was adopted, the same, by the provision quoted, was perpetuated; and the Legislature was without authority to destroy it, as was attempted to be done by the act under which appellant is held in custody. Cockrill v. Cox, supra.
In County of Black Hawk v. Springer, 58 Iowa 417, 10 N.W. 791, it was held that the constitutional provision that "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," applied only to criminal prosecutions or accusations for offenses against the criminal law, where it was sought to punish the offender by fine or imprisonment; that it did not apply to a lunacy inquiry before a board of commissioners, because such was in no sense a criminal proceeding. Conceding the correctness of that interpretation of the Constitution of Iowa, it is apparent that the provision so construed presents a different question from the effect to be given to our constitutional provision, in view of the law existing at the date of its adoption. The rule of constitutional interpretation announced in Cockrill v. Cox and now considered does not seem to have been involved.
In re Bresee, 82 Iowa 573, 48 N.W. 991, denies the right of trial by jury in a lunacy proceeding, basing its holding upon the interpretation given in County of Black Hawk v. Springer, supra, to sections 9 and 10 of article 1 of the Iowa Constitution.
The reasoning in Fant v. Buchanan (Miss.) 17 So. 371, denying the right of a trial by jury, is not applicable under our Constitution, laws, and system of jurisprudence.
In State v. Linderholm, 84 Kan. 603, 892, 114 P. 857, it is held that a hearing to determine the mental condition of an alleged insane person is not a "trial" within the meaning of the constitutional provision securing the right of trial by jury, but is merely an inquest which bears no resemblance to an action either civil or criminal. This decision I do not regard as sound. To my mind, it matters not what the nature of the proceeding may be. If, in such proceedings, the right to a jury trial was universally recognized and had become firmly established when our Constitution was adopted, then the right was perpetuated by the provision now considered. Sporza v. German Savings Bank, 192 N.Y. 8, 84 N.E. 406.
The expression of opinion by our Court of Criminal Appeals, in Ex parte Singleton, 72 Tex. Crim. 122, 161 S.W. 123, is obiter dictum and cannot be regarded as authority.
The cases from Iowa and Mississippi are thus distinguishable, and I do not concur in the views expressed in the Kansas case and Ex parte Singleton. The other cases cited by appellees upon this phase of the case are not regarded as in point. For the reason indicated, I regard the act in question as in conflict with section 15, art. 1, of the state Constitution, and for that reason invalid. *Page 376
But it is contended, if the act is subject to this objection, the district judge before whom the habeas corpus proceedings were held properly refused to discharge the applicant because she was in fact insane, and was properly restrained for the protection of herself and others and that she might be properly treated for her mental disorder. See Ex parte Dagley, 35 Okla. 180, 128 P. 699, 44 L.R.A. (N. S.) 389; In re Dowdell, 169 Mass. 387, 47 N.E. 1033, 61 Am. St. Rep. 290; Denny v. Tyler, 85 Mass. (3 Allen) 225. The statement of facts is silent with respect to the mental condition of Mrs. White, and the record otherwise would not justify the court in assuming that she was insane. The rule announced in the cases just noted therefore could have no application here.
The court below erred in refusing the applicant any relief. She should have been remanded temporarily to the custody of the sheriff, in order that proceedings may be had under the old law under which a jury should be impaneled and the issues tried as therein provided.
The constitutional defect indicated affects the validity of the entire act under consideration and leaves the old lunacy act in effect. The applicant may be properly held in restraint and custody until her mental condition can be determined under the old law.
A proper complaint in lunacy has been filed against her, warrant issued under which she was taken in custody, and she may be held thereunder until tried. If the proceedings against her be not promptly consummated, she should be entitled to discharge upon an application for habeas corpus made to any court of competent jurisdiction.
Under the authorities, I believe we are warranted in temporarily remanding appellant to the custody of the sheriff until her mental condition and the proper disposition to be made of her can be determined in a lawful manner. In re Crosswell, 28 Rawle I. 137, 66 A. 55, 13 Ann.Cas. 874; In re Chow Goo Pool (C. C.) 25 F. 77; In re Dowdell, supra; Denny v. Tyler, supra.