(dissenting). I regret that I am unable to agree with my associates in this case. The results that follow from their conclusions are, I believe, more desirable than the results that follow my own conclusions; and I would gladly subscribe to their views, did I riot think that the legislation of this state imperatively forbids it. The matter is of so much importance that I deem it my duty to express my views by something further than a formal dissent.
We may start with the general propositions that originally a party who deemed himself unlawfully deprived of his liberty had the right to have the legality of his confinement passed upon by every court in the realm. If remanded by one court, he was at full liberty to petition another, and he could continue this process as long as he could find a court to which to apply. Under this practice the petitioner never asked for an appeal or review in any form. He had a speedier means of reaching the same result. If discharged by any one of the numerous courts to which he could apply, such discharge was, from the origin of the writ, held final. The crown could not appeal, any more than it could when a prisoner was discharged by the verdict of a jury. Hence a review was unknown in habeas corpus cases, and this, too, at a time when a review, if obtained at all, would have been obtained by a writ of error, which is a writ of right, and not an appeal, which is the creature of statute. But this fact, standing alone, establishes nothing. It does not show that a writ of error might or might not have been granted. I have found no English case where the writ has been refused. In the celebrated case of Ashby and White, reported in 14 Howell, St. Tr. 695-888, the matter was discussed at great length. This was in 1704-05, being in Queen Anne’s reign. Certain parties had been imprisoned by order of the house of commons for an alleged violation of the privileges of the house. They petitioned the Court of Queen’s Bench for a writ of habeas corpus, but on the hearing they were remanded. They then sought, by writ of error to bring the matter before the queen in parliament. The house of commons and the house of lords were in direct opposition on the point. Conferences were had, and exhaustive discussions; the commons being determined to keep the parties in confinement. It put forth the argument that the fact that no writ had ever been granted to review habeas corpus proceedings was evidence that none was allowable. In the end the commons petitioned the queen not to grant the writ, while the lords issued an address to the queen, the logic of which never has been, and never can be, answered, in which they urged the immediate issuance of, the writ. The queen replied *176the same day, saying: “My Lords: I should have granted the writ of error desired in this address; but finding an absolute necessity of putting an immediate end to this session, I am sensible there could have been no further proceeding upon that matter.” She forthwith prorogued parliament, and thus, of course, put an end to the imprisonment. There are some dicta in the early English cases to the effect that the writ of error will not lie in habeas corpus cases. City of London, 8 Coke, 121b; Rex v. Trinity Chapel, 8 Mod. 27. But in these cases, and all others where I find the point mentioned, procedendo, mandamus, and habeas corpus are classed together, and practically for the same reasons, as proceedings that cannot be reviewed by writ of error. But no decision in England has held directly that a writ of error would not lie to review proceedings on habeas corpus, while the house 'of lords has declared that the writ would lie. In the case of Yates v. People, 6 Johns. 337-523, it was held (not upon any statute, but purely upon common law grounds) that a writ of error would lie from the court for the correction of errors to the Supreme Court, to review a decision of the latter court in habeas corpus proceedings. This case is very exhaustive. I think I am justified in saying that it involved more research and labor than have been bestowed upon all the cases in the books where the right to review by writ of error or appeal has been denied in habeas corpus cases. True, there was a diversity of opinion in that case, and that diversity continued until the matter was finally settled in New York by express statute giving the right of appeal. Another case decided upon the same grounds and in the same way is Ex parte Lafonta, 2 Rob. (La.) 495. Another full discussion of this question may be found in Holmes v. Jennison, 14 Pet. 540. I cite these cases simply to show that it has never been the settled law that proceedings upon habeas corpus cquld not be reviewed by a higher court.
It is true that' in this state the writ of error is abolished, and all reviews are by appeal, as provided by statute. The majority-opinion cites certain cases to show that, under a general statute allowing appeals from all final judgments, appeals are not allowed in habeas corpus cases. The first case is Howe v. State, 9 Mo. 690. There the Circuit Court had refused to, discharge petitioner, and he appealed. The appeal was dismissed on the ground that the decision was not final, because the petitioner could make another original application to another circuit judge, or justice of the County Court, or justice of the Supreme Court. What that court would have held, had petitioner been discharged, and the state appealed, does not appear. Certainly the judgment would have been final in that case. But as to' whether or not an order remanding a prisoner is a final judgment, within the meaning of appeal statutes, seen the opinion of Chief Justice Taney in Holmes v. Jennison, supra. In Ex parte Jilz, 64 Mo. 205, no question of a right of appeal was involved. That was an original application to the Supreme Court for a writ of habeas corpus. What the Court did hold *177was that where the petitioner was discharged the matter became res adjudicata. It is difficult to state the precise condition of the law on this point in Michigan. The majority opinion cites the case of People v. Conant, 59 Mich. 565, 26 N. W. Rep. 768; and the case holds that the discharge of a party, held upon a criminal charge, on habeas corpus proceedings, is not reviewable on writ of error. People v. Fairman, 59 Mich. 568, 26 N. W. Rep. 769, is a stronger case on the same point, as that case holds that a writ of error does not lie at common law to review habeas corpus proceedings. In People v. Judge of Calhoun Circuit Court, 30 Mich. 266, it was held that a writ of error would not issue to review habeas corpus proceedings before a judge at chambers, for the reason that such proceedings were not according to the course of the common law, and it was held that the proper remedy for errors committel in such proceedings was by certiorari. In re Hicks, 20 Mich. 133, the Court said: “They (the petitioners) insist'that the decision of the court below on the habeas corpus, and the discharge of the parties, is final, and not reviewable in any form. We cannot accede to this view. The constitution has vested this Court with a general superintending control over all inferior courts, and has clothed it with power to issue writs of error, habeas corpus, and other original and remedial writs; and we cannot doubt our authority to review by some mode a decision on habeas corpus, when made by a circuit judge.” It would appear that in that state the right to review the proceedings in some manner is unquestioned, except in the single case of the discharge of a person held upon a criminal charge. Other considerations enter into such a case, that I need not stop to discuss. Nor do I think the majority opinion at all strengthened by the citations from Wisconsin. It is true that our general appeal law in civil cases is the same as that of Wisconsin', and it is also true that in that state habeas corpus proceedings are reviewed, not under the appeal law, but by writ of error, and that is because in that state habeas corpus proceedings are classed as criminal in their nature; and in the case cited (State v. Grottkau, 73 Wis. 589, 41 N. W. Rep. 80, 1063) a writ of error was refused to the state because the Court had held in State v. Kemp, 17 Wis. 669, — and the ruling had never b.een questioned or doubted, — that a writ of error would not lie at the suit of the state to reverse a judgment for the defendant in a criminal prosecution; and the Court entered into an extended argument to show that a' judgment of discharge on habeas corpus, where the petitioner was charged with a crime, was in no manner different in character.
These are all the cases cited by my associates to establish the proposition that appeals in habeas corpus cases are not permitted under general appeal laws. I submit that only in part do these cases support the proposition. In so far as they do support it, they are based upon statutes that permit appeals from final judgments only. *178Hurd, Hab. Corp. § 573, states that, by the current of state authority, decisions in habeas corpus refusing a discharge are' not final, blit the party may apply^to successive court's; and the reason that he assigns is that no appeal or writ of error lies from such decisions, and he cites the cases to support the position. When we turn to the cases that deny an appeal or writ of error, we find that the reason assigned is that the decision is not final as the petitioner may renew his application. See Howe v. State, supra; Hammond v. People, 32 Ill. 446; Ex parte Thompson, 93 Ill. 89. Thus, the reasoning moves ever in a circle. It is not strange that legislatures and courts should break away from it. Again, under the old practice as stated in Howe v. State it might happen that a party would make his application to the Supreme Court of the state, and on the hearing be remanded, but upon a renewed application before a justice of the County Court he might be discharged. The discharge would be final, and the Supreme Court would be effectually reversed by the County Court. Enlightened judicature can hardly tolerate such a farce, even in the interests of the great personal liberty writ. As a result the trend of legislation is to limit the applications for the writ so that it may not be abused, and at the same time give the right of appeal. Not only has this been done in New York, but also in federal legislation giving the absolute right of appeal in habeas corpus cases from 'the District to the Circuit Courts, and from the Circuit to the Supreme Court; also, from territorial Supreme Courts to federal Supreme Court, and from Supreme Court, District of Columbia, to United States Supreme Court. See Rev. St. U. S. §§ 763, 764, 1909; also, Act March 3, 1885; also, Roberts v. Reilly, 116 U. S. 80, 6 Sup. Ct. 291; In re Sun Hung, 24 Fed. Rep. 723; Wildenhus’ case, 120 U. S. i, 7 Sup. Ct. 385. The appeal is also given in Iowa. Code, § 4101. In Vermont, habeas corpus proceedings are reviewed on exceptions under the general law. In re Cooper, 32 Vt. 253. In West Virginia, on writ of error under the general law. Ex parte Mooney, 26 W. Va. 32. In Washington, under the general appeal law. See annotations to section 732, 2 Hill’s Code. In Indiana, under the general appeal law. State v. Banks, 25 Ind. 495.
It is conceded b.y the majority opinion that in Minnesota and South Dakota, under statutes identical with ours, appeals in habeas corpus are allowed under the general appeal law. But the majority opinion proceeds to argue with much ability and ingenuity, that those cases were improperly decided, under the statutes. From that view I dissent, and this brings us to a more specific examination of our statutes. Section 5156, Rev. Codes, reads, “An action is an ordinary proceeding in a court of justice, by which a party prosecutes another party for the enforcement or 'protection of a right, the redress or prevention of a wrong or the punishment of a public offense.” The next section reads, “Every other remedy is a special proceeding.” It is not possible to misunderstand that language. Every remedy is either a civil action, a criminal action, or a special *179proceeding. A habeas corpus proceeding is a remedy. If it be a civil or criminal action, then, beyond question, it is appealable. If it be a special proceeding, then it comes directly within section 5626, Rev. Codes, which declares what orders are reviewable upon appeal, and the second subdivision of which reads, “A final order affecting a substantial right made in special proceedings.” In my judgment, that exactly covérs this case. But the majority opinion argues that it is not a special proceeding, because it is not placed in the Codes with certain other enumerated special proceedings of a purely civil nature, but, on the other hand, it is placed in the Code of Criminal Precedure. I find no force in the argument. The statute does not declare that special proceedings must be of a civil 'nature. It says, “Every other remedy is a special proceeding.” I regard habeas corpus as more nearly of a civil than of a criminal character, yet, doubtless, the legislature, in placing it among the criminal procedure, regarded it as partaking of that character. As we have seen, it is so regarded in Wisconsin, and the same is true in Indiana. Milligan v. State, 97 Ind. 355. And in Kansas. Gleason v. Commissioners, 30 Kan. 53, 1 Pac. Rep. 384. And in Illinois. Angell v. Union Co., 8 Ill. App. 244. But the location of the habeas corpus act can in no manner alter its inherent character. It is urged that this Court has held that there are remedies that are neither actions nor special proceedings. The first case cited is State v. Davis, 2 N. D. 461, 51 N. W. Rep. 942. There we simply held that the proceeding under review was not a remedy, and could not possibly, in that case, be used as a remedy, and hence was not a special proceeding, under the express definition in the statute. The second case is Myrick v. McCabe, 5 N. D. 422, 67 N. W. Rep. 143. It was a proceeding to remove from office. The syllabus in that case, prepared by Chief Justice Wallin, after citing the section authorizing the proceeding, declares: “Said section creates a remedy, and authorizes a proceeding which is summary 'in its nature, and of a character peculiar ,to itself. The statute which creates the remedy also establishes the practice which governs the proceeding to obtain the remedy. The statute does not contemplate that the proceeding shall be delayed by appeals from intermediate orders or rulings, and do.es not authorize any appeal before the- entry of judgment.” Certainly that case did not hold that the remedy was neither an action nor a special proceeding. The last case is In re Eaton, 7 N. D. 269, 74 N. W. Rep. 870: The case supports the proposition of the majority to some extent. The case was disbarment of an attorney, and resulted in the exoneration of the accused. The decision was written upon his application for judgment for costs. A provision of law allowed costs in special proceedings. If costs were allowed in that case, they could be taxed only against certain attorneys, who formulated the charges and conducted the proceeding's, not of their own volition, but by express appointment and order of the District Court. To have mulcted them in costs would have been exceedingly inequitable and *180unjust. To avoid a result so deplorable, we considered the proceeding so far sui generis that we excluded it from the classification of special proceedings. But certainly it would be entirely subversive of the statute to extend the reasoning of that case to habeas corpus proceedings.
But my associates base their ruling largely upon our habeas corpus statute, which they assert authorizes an application to this Court for the writ of habeas corpus after the writ has been issued by the District Court, a hearing had, and the petitioner remanded; thus -enabling the petitioner to obtain in a speedy manner and without the necessity of an appeal, with its delays, the judgment of this Court upon the merits of his case. Here we diametrically differ. Section 8651, Rev. Codes, as amended by chapter 85, Laws 1897, reads: “The writ of habeas corpus must be granted, issued, and made returnable as hereinafter stated: (1) The writ must be granted by the Supreme Court or any judge thereof upon petition by or on behalf of any person restrained of his liberty within this state. When granted by the Court it shall in all cases be issued out of and under the seal of the Supreme Court, and may be made returnable, either before the Supreme Court, or before the District Court or any judge of the District Court. (2) The writ may be granted, issued, and determined by the District Courts and the judges thereof upon petition by or on behalf of any person restrained of his-liberty in their respective districts. When application is made to the Supreme Court, or to a judge thereof, proof by the oath of the person applying or other sufficient evidence shall be required that the judge of the District Court having jurisdiction by the provisions of subdivision 2 of this section is absent from his district or has refused to grant stich writ, or for some cause to be specially set forth is incapable of acting, and if such proof is not produced the application shall be denied.” That this section is an innovation, and intended as an innovation, upon the old practice is too clear for question. It strikes at once at the matter of repeated applications to courts of equal authority. A District Court, or the judge thereof, can only grant, issue, and determine the writ upon the petition of a party confined in that particular district. No other District Court or judge has any jurisdiction. So much is conceded in the majority opinion. But neither can a party come to this Court in the first instance as a matter of course. Certain facts must be shown. The judge of the District Court of the district where the petitioner is confined must be absent, or must refuse to act, or, for some cause to be specially set forth, must be incapable of acting. What incapacitates a judge? Sickness, consanguinity, affinity, or such personal interest in the result as makes it improper for him to act. These have always been held to disqualify. But the majority would ingraft another disqualification. They say, in effect, that the petitioner must show to this Court that the judge of the proper District Court is absent, or has refused to act, or has acted. 1 humbly submit that the statute will bear no such con*181struction. Its every word presupposes that there has been no action in the District Court when-the party comes to this Court, and that there can be no action there. Let me accept the construction of the majority for a moment, and see where it will lead. Let us suppose that a party confined in the first district presents his petition for a writ of habeas corpus to the Court in that district, and that the writ is granted, the matter heard, and the petitioner remanded. Now, under the holding of the majority, the petitioner can come to this Court with his petition, and an affidavit showing that the judge of the first district is incapable of acting because he has acted, and this Court must then issue another writ; and, as it may be made returnable before any District Court in the state, this Court will send it to the District Court for the second district. That court, in turn, remands the party. Upon the same showing he can come before us again, and obtain another writ, and continue the process until all the District Courts are exhausted; and this in the teeth of the statute, which it is admitted was passed expressly to prevent repeated hearings in the District Courts. I am entirely unwilling to prevert language from what seems to me its plain meaning, when it leads to such groesque results. But it is said that, if there be an appeal for one party, there must be an appeal for both, and that an appeal by the state acts as a supersedeas, and would prevent the execution of the order of discharge, and that this cannot be true, because a section of the habeas corpus act makes it an offense to rearrest a party who has once been discharged on habeas corpus. This argument is based upon a misapprehension of conditions. If the party has been discharged, then the appeal by the state cannot supersede the order. No appeal and no bond can supersede an order or judgment that has been fully executed. An appeal cannot incarcerate a man who is free. It can only prevent a man who is incarcerated from going free. But it is urged that even this enables the state, by taking an appeal before the order of discharge is promulgated, to defeat the purposes of the writ, and hold a party in confinement during a tedious appeal. If this be true, it is a practical objection to my position. I freely admit it, but I do not admit that it is a legal objection. Men find themselves grievously injured by the delays of litigation every day. But I do not concede this to be true. In Iowa, under an express statute giving an appeal to both parties in habeas corpus proceedings, the Supreme Court holds that the order of discharge cannot be superseded. This .is in line with the general provisions which will not allow an appeal by the state in criminal proceedings to supersede a release or an acquittal by a Court or jury. Should such a case ever come before us, it might be our duty, in the interests of personal liberty, to hold that an appeal by the .state did not supersede an order of discharge.
If it be claimed that my construction of the statute renders it unconstitutional, as unduly infringing upon the powers given to this Court to issue writs of habeas corpus, I ariswer that, while it is *182entirety competent for the legislature to regulate and prescribe constitutional powers thus conferred, -yet that question is not before us in this case, and cannot be. We are concerned with the appeal statute, and with this only as it bears upon that. I simply contend that, under our statutes as they stand, a party who has been remanded upon habeas corpus proceedings has a right to appeal to this Court.
(77 N. W. Rep. 617.)