(dissenting). I dissent from the views entertained by the majority of the court in this case, and, though the question is but a narrow one of procedure, I feel that I should briefly state the reasons for my dissent. I have arrived at a conclusion in this case only after considerable reluctance, due to the fact that the result arrived at by the majority provides an apparently simple procedure for securing a review and determination of the issues involved in habeas corpus proceedings before district courts. But, upon mature reflection, it seems to me that the simplicity of the procedure is apparent rather than real, and that it gives rise to difficulties and complications that would be altogether eliminated if the statute (§ 11,362, Compiled Laws of 1913) were strictly adhered to and no distinction attempted to be read into it, based upon the use of the writ to determine the legal custodianship of a minor as distinguished from its use to determine the legality of an imprisonment. Whatever warrant there may be for such a distinction in the ultimate determination of the rights of the parties after the writ has been issued, I am satisfied that, under our statutes, there is no occasion for carrying the distinction into the realm of procedure.
When an application is made and is supported by the facts which the statute requires to be stated, the statute provides that the writ “must be granted” by the supreme court or by any judge thereof. The language is mandatory, and it is sufficiently broad to bring before this court or before any judge thereof the merits of any controversy which might be properly disposed of in a habeas corpus proceeding. The attempt to clarify the procedure by entertaining appeals from orders of district courts only tends to greater confusion. Such a state of confusion will only be partially avoided by following out the suggestion contained in the concurring opinion of Judge Christianson, to the effect that a judge of this court ought not to hear and determine proceedings in habeas corpus whore the custody of an infant is involved. In my judgment, this power should not be relinquished. Under the statute the duty is mandatory and is one that has previously been exercised. Re Sidle, 31 N. D. 406, 154 N. W. 277. It would be equally *239the duty of a judge of this court to issue the writ in similar circumstances. Comp. Laws 1913, § 11,362.
Traditionally, and of necessity, habeas corpus is a speedy remedy for the determination of the legality of a restraint of personal liberty or the legal custodianship of a minor; and the writ may be issued by a district judge, where a person is restrained of his liberty in his district, or by a judge of this court or by the court in term time or vacation. When the writ is issued the judgment should, in all cases, determine the cause upon the merits presented in the application, the answer, and the evidence. Under the rale adhered to by the majority, this court will be driven to the review of the records for the purpose of determining the correctness of judgments entered hy district courts in habeas corpus proceedings, while the statute contemplates that the court itself should determine the matter as an original proposition or, in its discretion, direct that it be determined before a designated district court or judge. It is inconceivable that any cause can arise wherein the writ may be appropriately employed where the merits cannot be brought to this court by an original application. If facts are stated in the application which would seem to warrant a final adjudication in this court, it can, of course, he determined here, rather than before a district judge. Ibid. Hence, there is no occasion for an appeal in such matters. If an appeal had been contemplated, it is difficult to see why a judge of this court, as distinguished from the court itself, would have been authorized by statute to issue the writ and determine the cause. Clearly there would be no appeal in such a case, hut yet on a subsequent original application the court itself might deteimine the whole controversy anew. As further indicating the confusion which results from the holding of a majority, a party adversely affected by the determination of the issues in a habeas corpus proceeding hy a district judge might renew his application before the time had expired for an appeal. If his application he denied, he might then apply to this court or to a judge thereof, and it would become the duty of the court or of the judge to issue the writ. The statute does not contemplate that the legality of a restraint or the custodianship of a minor shall ever be placed beyond the realm of inquiry in an appropriate original habeas corpus proceeding. This is the virtue of the writ..
The doctrine of res judicata in such cases is employed largely at the *240discretion of the courts before whom a hearing is had for the purpose of preventing the repeated litigation of questions of fact, and its application may safely be left to the sound discretion of the judge before whom the application is made or hearing had. The statute does not give to a person who claims that his liberty is restrained the right to appear before various district judges, but, on the contrary, it localizes the jurisdiction to the district within which the party is restrained. This takes care of the inconvenience that would result if a party were free to make successive applications to different district judges.
As I view the question, it is fully covered by the statute, and there is no occasion for making the distinction that is made by the majority in order to secure a review of the action of the district court. Whatever the necessities may be in those jurisdictions where statutes similar to ours do not exist, and where ample statutory provision might not be made for a review of the proceedings had in habeas corpus matters before courts of original jurisdiction, it is clear that these necessities are not present in this state under our statutes. Even if there were a necessity for a review in this court, in my judgment it would be preferable to provide for such review by writ of error under the authority of chapter 225 of the Session Laws of 1917.