(dissenting):
Section 454 of the Code of' Criminal Procedure is void for being violative of the constitutional prohibitions against depriving any person of “life, liberty or property without due process of law” (U. S. Const. 14th Amendt. §1; N. Y. Const, art. 1, § 6). It provides that if the defendant be acquitted on the ground of insanity in any case, i. e., at the time the offense was committed, and is in custody, the -trial court must, if it “deem his discharge dangerous to the. public peace or safety, order him to be committed to the state lunatic asylum, until he becomes sane”. Ho hearing is required in respect of his sanity. The commitment prescribed is final and permanent instead' of only temporary for the purpose of a hearing or trial. The requirement is that he be committed “ until he becomes sane ”, thus allowing him to be treated as insane in the discretion of the trial court without giving him opportunity to be heard on the question of his present .sanity.
It is not disputed that alleged lunatics, the same as alleged criminals, may be temporarily committed without a hearing law*175fully in the discretion of courts and judges, i. e., until their case can be heard in conformity with the requirement of due process of law; but they may not be committed permanently, any more than alleged criminals, without a hearing of a judicial nature on notice, which, and nothing short of which, is due process of law; and any statute permitting the like is void. This statute prescribes no notice or hearing, and none was given or had. This latter is unimportant, however, for the test of the validity of the statute is not what was done, but what may be done under it. All of the cases now to be cited decide the general .principle, and . several of them are still more in point, as they deal with statutes the same or similar to the one now in question (Stuart v. Palmer, 74 N. Y. 183; Matter of Kenny, 23 Misc. Rep. 9; Hagar v. .Reclamation District No. 108, 111 U. S. 701, 708; Simon v. Craft, 182 id. 427; People ex rel. Ordway v. St. Saviour’s Sanitarium, 34 App. Div. 363; Underwood v. People, 32 Mich. 1; Matter of Boyett, 136 N. C. 415; 67 L. R. A. 972; Matter of Lambert, 134 Cal. 626; State ex rel. Blaisdell v. Billings, 55 Minn. 467; Brown v. Urguhart, 139 Fed. Rep. 846; City of Portland v. City of Bangor, 65 Me. 120; Chase v. Hathaway, 14 Mass. 222; Matter of Blewitt, 131 N. Y. 546). The decision to the contrary in Matter of Brown (39 Wash. 160) is disapproved by the learned reporter’s note in another report of that case (1 L. R. A. [N. S.] 540).
It suffices to say of the Massachusetts case of Gleason v. Inhabitants of West Boylston (136 Mass. 489) that the point now up was not there raised or considered at all, much less decided. The statute in that state is that on a verdict of acquittal of homicide on the ground of insanity the defendant shall be committed by the trial court to a state lunatic asylum for life, no discretion whatever being given to the court in the matter; and then the Governor and council are given power to discharge him whenever it appears that may be done without danger ' to. others; The only question in the Gleason case was what township or locality was chargeable with the expense of keep of a person so committed, and all that was said was on the unquestioned assumption that a commitment under the statute was valid.
If legislative power exists to qualify the defense of insanity in *176homicide cases so that a verdict of acquittal on . that ground shall be a qualified acquittal only, not entitling the defendant to go free, but on which he shall be committed for life, or for a less' time, we, have no such statute. Under ours, which relates to. indictments for all crimes alike, the acquittal is complete and unqualified. The -trial court- is not required by it to -commit the defendant on or by virtue of the verdict, but is only given power to commit him after the verdict if lie be then insane, according, to its judgment and discretion, but only if he be in custody; and it is permitted by the statute to exercise such judgment and discretion without a hearing.. It is the same as. though the "statute gave such power to-some other court or magistrate on the defendant’s-acquittal. The order of commitment does not follow and is not made on the verdict, but on the judicial conclusion made afterwards that the defendant is not only a. lunatic but.a dangerous one at the time of his acquittal, and such conclusion is not permissible except on due process, of law. .
But, it is asked, -if the Legislature had the power to enact that on a verdict o.f acquittal on the ground of insanity at the time the homicide was. committed, the defendant should be committed by the trial Judge in every case, simply on the verdict, how is the - defendant injured, by a statute- permitting him to be committed only if the trial court should in his discretion deem him insane at the time of acquittal % The question is scarcely plausible, and we do not need to grope for an answer. If the Legislature wanted a defendant to be committed simply on such a verdict of acquittal, it would have so enacted. But'i-t did not want that, but only that he should be committed if,insane at the time of acquittal, and not e've,n then unless he . should be dangerous to the public peace or safety, and it delegated the-decision or finding of that fact to the trial court after the verdict; and the.statute is void because it permits it to do só without giving the defendant a hearing. There are many things -that the Legislature may do, as. matter in its legislative jurisdiction and capacity, but .¡the- doing of which, if delegated by it -to any officer or tribunal as á matter of'judgment and discretion, becomes judicial, and may only be done by such officer or tribunal by: due process - of law;. as, for instance, is the familiar and often applied rule ip the matter of taxation and assessment.- The Legislature, may. apportion and cast a tax or assessment, as a matter of *177legislation, but if it delegate the doing of it, the official, board or tribunal to whom it delegates it can act only on due process of law, i. e., after a hearing on notice (The Taxing Power, etc., 42 Alb. L. J. 64, 68). .
The contention that the trial of the defendant’s plea of insanity at the time he committed the offense was a trial of the question of and established his present insanity, by aid of the presumption of the continuance of insanity, once it be established as of a given time (Cook v. Cook, 53 Barb. 180), is fallacious. While such presumption of continuance was evidence of present insanity, it was not conclusive evidence. It is only a presumption of fact, and the defendant was entitled to opportunity to rebut it like any other evidence. Such a presumption might suffice as a foundation for a statute to temporarily commit him to give him a hearing, but not for a statute to permanently commit him without a hearing. There may also have been evidence given on the trial of the indictment tending to prove that the defendant was then insane; but that would leave us, at most, with the same case still, viz., with evidence which the defendant was entitled to opportunity to rebut. The issue of insanity on the trial was only whether the defendant was insane at the time he committed the offense, and that is all that the verdict could establish. The notion that he was also at the same time perplexed and in jeopardy with an issue of his present sanity, of the trial of which the said statute in and of itself gave him due notice, is without foundation. ■ He was not in the evil casé of being tried at the same time on an issue of his present sanity before the Judge and of his past sanity before the jury. The only notice the statute gave him was that if he should be acquitted the trial court might summarily commit him as a mere matter of discretion, and such sfonte, not as an alleged lunatic and for the purpose of a hearing, but as a lunatic and “until he becomes sane”.
To say that since he is not remediless, that as he may resort to the writ of habeas corpus or some other means of a hearing to establish his sanity and regain his liberty, he is not deprived of due process of law, is to miss the purpose of that safeguard, with all due respect 'to judicial opinions which suggest thé thing. It requires that a hearing be given before a permanent judgment or order *178depriving one of his liberty, and does not intend the hearing which he may afterwards be able to get by dint of seeking relief against' his unlawful commitment. A principal office of the writ is to get jieople out who have beeip committed- without due process of law, and -on that ground.
While the decision in the recent case of Sporza v. German Savings Bank (192 N. Y. 8) is not in point, it is instructive by analogy as showing the policy in this state of careful application of the constitutional provisions for the protection of liberty and property to alleged incompetents. Ail of the Judges there agreed that an alleged* incompetent had the. right to have the question of his incompetency not only tried, but tried by a jury, before a committee of his person or of his property may be appointed.
And the provisions of our Insanity Law for the commitment and custody of lunatics (chap. 545, Laws of 1896, a codification of former statutes) show the same care to preserve the benefit of the said constitutional safeguard. By them a Judge of a court of record is empowered to commit an alleged lunatic to a lunatic asylum on the certificate of two physicians, medical examiners in lunacy, with or without notice to the lunatic, according to his condition, or the urgency of the case. But the alleged lunatic, or any friend of his, is given by them the right and opportunity in the same proceeding to have a jury trial of his sanity forthwith after the making of the order of commitment, or at any time within 10 days. Ho new proceeding has to be originated. In that way the requisite of a hearing on notice, i. e., of due process of law, is provided for; and such notice is also requisite under the provisions of the Code of Civil Procedure for the appointment of a committee (Matter of Blewitt,131 N. Y. 541). But the commitment provided for by the statute here in question is not under the Insanity Law, and the said provisions of that law do not apply to the case of one -so committed.
-The claim of the relator that he cannot be permanently committed as a lunatic without a jury trial is well taken only if the said statute under which he was committed is void. In that case he could be committed and detained only under the Insanity Law, there being no other way provided by law; and that, as we have seen, gives him the right to a jury trial.
*179Under a former writ of habeas corpus a hearing was had on the. question of this relator’s sanity before the Judge who issued it, after his claim that the said statute under which he was committed was void had been overruled. It was had on the theory of the learned Judge that the relatbr had been lawfully adjudged a lunatic and committed, and if that were so would have been regular. But that not being the case, the hearing was nbt permissible, and cannot supersede or take the place of the trial by jury which the relator was entitled to as a prerequisite to his permanent commitment. The proceedings and safeguards prescribed by the Insanity Law were the only course open against the relator from the beginning. He should have been committed in the way prescribed by it or not at all.
The order should be reversed and the relator discharged, unless within five days, he be committed under the Insanity Law.
Order affirmed, without costs.