dissenting.
The first sentence of G.S. 122-86 reads as follows: “No person acquitted of a capital felony on the ground of mental illness, and committed to the hospital designated in § 122-83 shall be discharged therefrom unless an act authorizing his discharge be passed by the General Assembly.” The Supreme Court of North Carolina in the case of In re Boyett, 136 N.C. 415, 48 S.E. 789 (1904), in holding this proviso unconstitutional, said:
It is a fundamental principle that every person restrained of his liberty is entitled to have the cause of such restraint inquired into by a judicial officer. The judicial department of the government cannot by any legislation be deprived of this power or relieved of this duty. It must *69afford to every citizen a prompt complete and adequate remedy by due process for every unlawful injury to his person or property. This is absolutely essential to a constitutional government. The Legislature may make laws, prescribe rules of action and provide remedies not provided by the Constitution, the judiciary alone can administer the remedy.
Thereafter, the General Assembly enacted what is now the last sentence of G.S. 122-86 reading as follows: “No judge issuing a writ of habeas corpus upon the application of such person shall order his discharge until the superintendents of the several State hospitals shall certify that they have examined such person and find him to be sane, and that his detention is no longer necessary for his own safety or the safety of the public.” Petitioner contends this proviso is also unconstitutional as violative of “due process” and I agree with the contention.
It appears to me that by enacting the last quoted proviso, the General Assembly merely substituted another nonjudicial group to pass upon the legality of a person’s detention under G.S. 122-86. Our state and federal constitutions guarantee our citizens “due process of law”; this term is defined in Black’s Law Dictionary, Fourth Edition, as “law in its regular course of administration through courts of justice.”
Passing upon the mentality of a person is a complex task and in performing this duty, the courts should rely heavily upon persons who are specially trained in the field of mental health. Nevertheless, the courts should not be deprived of the power and duty to determine ultimately if a person is legally and properly detained.
I vote to reverse the order appealed from and to remand this cause to the superior court for further appropriate proceedings.