(concurring) : While I believe that Me. Justice Holloway is correct in what he says in the foregoing well-considered opinion as to the constitutionality of the statute, yet it is not because of this belief that I decide, as I do, that the writ should be quashed and the proceedings dismissed. I so' decide upon the single ground that the complainant was not in the custody of the sheriff, or at all restrained of his liberty, when he prayed for the writ.
The complainant, in his petition addressed to the justices of this court, declared under oath that he was “unlawfully imprisoned, detained and confined of his liberty by Joshua Pond, sheriff of Ravalli county, * * * in the county jail of said county.” A writ of habeas corpus was issued by order of the chief justice, returnable before this court.
The sheriff, under oath, made his return that “at the time said writ was issued * * * and served upon me the said W. P. O’Brien was by me imprisoned and restrained of his liberty, and confined in the county jail of Ravalli county, and that such imprisonment and restraint would have continued until this time, had not this honorable court directed that said W. P. O’Brien, relator herein, be released upon executing a satisfactory bond in the sum of $500. * * *”
*548The complainant, being examined upon his oath in this court at the time of the hearing, declared that at the time the poetition was made and at the time the sheriff was served with the writ he was not in the custody of the sheriff at all, but had been allowed to go at his own will pending his application for said writ.
Looking to Article VIII, Section 3, of the Constitution of this state, -we find that a petition for a, writ of habeas corpus addressed to a justice of this court must show that, the complainant is “held in actual custody.” In Section 110 of the Code of Civil Procedure, is said the same tiling.
The writ of habeas corpus is to enable a person unlawfully held in actual custody to regain his liberty. It is not designed for the purpose of assisting persons to' get expeditiously, or at all, a mere decision of the court upon unsettled and disputed points of law. In the case of a bona fide petition of a person actually in custody this court may and will grant a, writ returnable and order a hearing to be had as provided by law. But it will not permit the sacred writ, which was intended to protect the citizen from unlawful imprisonment, to' be- made, by convenient arrangement, a mere means of securing such a decision as is referred to above.