(concurring). The importance of the questions decided, and a dissent which has been a progressive development by means of addition and subtraction, and as to which the members of the court have constantly changed in attitude, constrain me to state fully the ultimate conclusions which impel me to agree to the decision of the court, and also the reasoning upon which these conclusions are reached. My ultimate conclusions are:
1. When the officers of a state asylum detain a patient, the tribunals of the county in which the asylum is situated *172are, of necessity, the ones nearest the detained patient. If the general provisions on venue that require all actions to be brought in the county wherein some defendant resides, or in which he does an official act, apply to an application in habeas corpus made by such patient, these statutes accomplish that all such applications must be made to the tribunal literally the nearest to the applicant. If that be the true construction of these general statutes, then Code Sec. 4420, which provides that application of habeas corpus “must be made to the tribunal most convenient to applicant in point of distance,” has no effect whatever. On that construction, the words of this statute compel application to' the tribunal “physically the nearest,” a requirement already made by said general statutes. Therefore, I hold that See. 4420 is special and controls the general, and that a fair construction of all the statutes on the subject is that while, ordinarily, application must be made in the tribunal nearest to applicant, in habeas corpus, subject to proper guards against abuse, the application must be entertained in a tribunal which, though not physically the nearest, is found to be the most convenient in point of distance.
2. There is no evidence in this record that the tribunal selected by this applicant is not most convenient to her in point of distance; and, in any event, the respondent may not complain on appeal that the applicant was tried in a tribunal not most convenient to her.
3. On the authority of Ware v. Sanders, 146 Iowa, at 242, the point of improper forum was waived by producing the applicant.
4. Certain statutes provide for conditional release on parole, upon compliance with stated conditions. I am of opinion that, although one of these conditions is that a parole is obtainable only on the recommendation of the superintendent, this does not affect the jurisdiction of the courts to grant applicatiojis for discharge which invoke a statute other than the parole statutes, to wit, the one which provides that *173“the term of the detention and treatment shall be until the patient is cured, and not exceeding three years.” A parole is a conditional and experimental release before expiration of sentence. But the statute last referred to terminates the sentence whenever a cure occurs, though that be earlier than the maximum time. It follows that one who invokes this statute is not seeking a conditional release before termination of sentence, but is asserting that he is illegally detained •oecause detained after his sentence has expired. Therefore, the parole statutes are not involved; for, though the courts have no power to grant a parole, and its granting depends upon the recommendation of the superintendent, they do have power to discharge one who is being imprisoned after the expiration of his sentence. If, as the minority claims, habeas corpus will not lie to liberate a detained inebriate, then the amendment to the habeas corpus statute which makes the requirements of the statute amended mandatory in applications “by an inmate of or one confined in a state institution” commits the absurdity of making mandatory regulations concerning an application which cannot be entertained at all.
Division I.
I. The respondent superintendent detained applicant in Henry county by official act done therein. This writ was issued by the district court of Clayton county. If our general statutes on venue control, the minority is rightly of opinion that, initially, none other than the. district court for Henry county had jurisdiction to entertain the application. A statute provision on venue requires that personal actions shall be brought in some county in which some defendant actually resides; and the further provision that this rules, “except as otherwise provided,” confesses that the main enactment is not exclusive. (Sec. 3501, Code.) Another commands that actions which complain of an act done under color of public office must be brought in the county where that act or some part thereof was done. (Sec. 3494, *174Code Sup. 1907.) When the superintendent of a state hospital detains a patient therein, the detention occurs in the county where the superintendent resides, and constitutes an official act done therein. Using the word “distance” literally, the tribunals that sit in that county are the least distant from a patient who seeks release by habeas corpus; If these two statutes provide that the county wherein the superintendent resides and detains the applicant is the only place wherein the application can be initiated, and physical nearness to the tribunal applied to is equivalent to “most convenient in point of distance to the applicant” — if, therefore, it be sound construction that habeas corpus must be applied for in the county where the superintendent resides and detains the applicant, and that this county is the most convenient to applicant in point of distance- — it was a waste of words to enact Sec. 4420, which provides that the application £ 1 must be made to the court or judge most convenient in point of distance to the applicant.” For, on such construction, Secs. 3494 and 3501 accomplish all that the- words of 4420 can. If, literally, distance is the test, then the nearest tribunal is the proper one, whether it is or is not convenient. The only way in which the words of See. 4420 can have effect is to hold that nearest in distance may not be the most convenient in point of distance. Otherwise, “most convenient in point of distance” means, merely, in the county wherein the superintendent lives — a needless statute, because, without it, that is the only county in which application can be made. Again, the statute provision (Sec. 4419, Code) that the writ of habeas corpus “may be served in any part of the state” is useless, because there never can be occasion to make such service. No one can be detained unless someone is present to detain him. If the writ can be applied for only in a district wherein the detained person is, no writ need ever be issued to operate outside of that district. Construction which results in needlessly disregarding statutes in pari materia is not favored, of course-, and it is such construction *175that the minority declares for. It is clear that all the statutes on the subject may have effect, and that we should not be asked to repeal Secs. 4419 and 4420. Rightly construed, all together provide that, ordinarily, personal actions must be brought in the county where the defendant resides, or in which an official act complained of has been done; recognize that ordinarily the tribunals in such county are the most convenient to which the plaintiff is entitled, that in some instances these tribunals, even if literally the least distant, are not the most convenient to applicant in point of distance, and, therefore, provide, with proper guard against abuse of the practice, that courts may entertain habeas corpus, though other courts are nearer in literal distance, though the respondent does not live in the county wherein application is made, and though applicant be not detained therein. This I construe to be the holding of the majority, and agree to.
It is conceded that Ware’s Case, 146 Iowa 233, says that which supports this position, but it is insisted that its “real decision” is merely that the jurisdiction of the Supreme Court is state-wide. The case expressly holds two things: (1) That as to the Supreme Court or a judge thereof, the statute requiring the application to be made to the tribunal most convenient to the applicant has no application, since the original jurisdiction of the Supreme Court is state-wide. (2) That, at all events, this statute does not expressly provide that the most convenient tribunal has exclusive jurisdiction, nor command the more remote judge to refuse the writ, because the statute is in this respect .simply directory, and that, therefore, the writ may be granted by a tribunal not the one nearest to the petitioner.
In Hamill v. Schitz Brewing Co., 165 Iowa 266, we pass on the effect of a decision by us of a controversy in which it was contended: (1) There is no power, after the jury has returned a verdict and been discharged, to give the defeated party a judgment effecting in result what would be equivalent to directing verdict in his favor; and (2) under the *176record, a directed verdict was in no event justified in the state of the evidence, even if it had been applied for before the power to grant it had lapsed. Both contentions were sustained in the decision which Hamill’s case, supra, reviews. We hold that what was said on both heads is binding law, and not dictum. In other words, though it was unnecessary to go farther, after having held that there was no power to direct a verdict, adding that the evidence did not warrant such direction was a binding decision, and not a “mere dictum or gratuitous or irrelevant expression.” Both on this authority and in reason, the “real decision” in the Ware Case was more than a decision that the Supreme Court has state-wide jurisdiction. It decides that habeas corpus can be entertained, though applied for in a tribunal not nearest to applicant.
The following is hornbook law: The test is whether a fact has been fully and fairly investigated and tried, and actually determined, or whether it is inferable from the judgment itself that it was determined. 2 Black, Judgments, Sec. 614, approved in Reynolds v. Lyon County, 121 Iowa 733, 742, 743. Every point which has been either expressly or by necessary implication in issue, or which must necessarily have been decided in order to support the judgment or decree, is concluded. Freeman, Judgments, Sec. 257. An estoppel beyond what appears on the face of a judgment applies to every allegation which, having been made on the one side and denied on the other, was at issue and determined in the course of the proceedings. Stevens v. Hughes, 31 Pa. St. 381.
In the Wore Case, the express challenge was not that the Supreme Court lacked state-wide jurisdiction, but that it was not the tribunal most convenient in point of distance to the applicant. That this court is not contemplated by the statute which requires the tribunal to be the one most convenient to the applicant in point of distance, because the jurisdiction of the court is state-wide, is one good answer to this challenge. It is manifestly just as good an answer that,' *177even if the court did not have state-wide jurisdiction, its jurisdiction was not well challenged because the statute which permits application to be made to the most convenient tribunal is, at most, directory1. Not only is the latter a decision because it is an express declaration upon an express challenge interposed, but it can and must be inferred from the judgment that such ruling was made, and of necessity. The challenge was that the court lacked jurisdiction. Both by retaining the application, and in express terms, this contention is overruled. This ruling is the ultimate decision. For such ruling two reasons, equally cogent and relevant, are assigned: first, that the statute in question has no application; second, that if it has, it is merely directory. Both are reasons for an ultimate decision rather than the decision itself. Why the stating of one of these reasons is more the real decision than the other is difficult to apprehend. If the claim asserted by the minority be followed to its bitter end, then the only ultimate decision ever pronounced by a court of last resort is that there shall ensue either affirmance or reversal. If that be so, if the reasons, and all or either of them, for affirming and reversing must be'treated as dictum, if the only effect of our decisions is their final result, if there is no function for the announced reasons that underlie and induce the judgments of courts of last resort, and if the reasons assigned for the decision, though relevant and cogent, are mere words, there is no occasion to publish official reports of such decisions.
2.
The hyper-analysis used to minimize the Ware Case is in sharp contrast with the plenary effect arbitrarily given to cases relied on by the minority. Whether the one restrained must present the application to a judge in the district of the restraint, or, that being impossible, to the nearest judge who will act, was neither involved nor even discussed in Thompson v. Oglesby, 42 Iowa 598. The sole question was whether one *178who presented the application of the person restrained was in such sense the applicant as that venue lay with the tribunal most convenient to this presenter. The case was determined in this court upon the concession that, if the presenter “is not the applicant ivithin the meaning of the statute, the motion for change of venue should have been granted.” Upon this concession, the only question that could be decided was whether such presenter is such applicant; and all that is decided is that he is not. Some language to the effect that when it may be presumed that respondent and the person restrained are together, and so, that the evidence as to the legality of the restraint would ordinarily be in the same place, then, for the benefit of the one restrained, it should be allowable to show the illegal restraint with the least trouble and expense, is pure dictum, and inapplicable besides. The real decision is further made clear by what follows this dictum, to wit: That “there is no reason why his imprisonment should continue until he can be brought before some remote court or judge, wherever shme person may happen to be who desires to present a petition in his behalf.”
In Rivers v. Mitchell, 57 Iowa 193, 195, the wife lived in Oskaloosa, the husband in Des Moines. The application was made to a judge in Polk county and the point was made that there was no jurisdiction to issue the writ because the application was not made to the court or judge most convenient in jmint of distance to the applicant. It is held that the children were, in a sense, the applicant, and it would be presumed that they and the father were together, and upon this point the Thompson Case, supra, is cited.
On suggestion that to do so is important, I have carefully considered the case of Laird Bros. v. Dickerson, 40 Iowa 665. It decides that if, on an attachment against a nonresident, no property is found in the county wherein suit is brought and the venue is changed to a county wherein a levy is made, the levy is valid from its date, and it is said that, except as the manner of its jurisdiction is prescribed by *179statute, both, by the Constitution and statute the district court “has jurisdiction over every cause brought within its district,” and that “this idea of the general and unlimited jurisdiction of the district court is further illustrated by the fact that they are styled the district court for the state, . . . with authority to grant writs running into any part of the state. ... It is therefore clear, . . . that the district courts have general jurisdiction of all matters brought before them.” This is not a decision that the court might not err as to venue, but it does hold that there is jurisdiction of a case brought in the wrong county, that there is power to issue some writs running to any county in the state, and is a strong implication that when the writ may thus run, it may have important bearing on whether venue has been rightly laid. While not an exact authority for the ruling opinion, it is none for the dissent, and tends to militate against rather than to sustain it.
In re Jewett, (Kan.) 77 Pac. 567, holds that, where a Constitution gives district courts such “jurisdiction as may be provided by law,” the exercise of such jurisdiction is limited, to “within their respective districts,” and where there is no pi’ovision to serve writ or process in any county of the state except in criminal cases, there is no jurisdiction to order the writ of habeas corpus to run outside the district. This is merely a decision that habeas corpus cases are not criminal cases, and the case says that the only question is “whether a proceeding in habeas corpus is in its nature civil or criminal.” In treating this as applicable, our statute, which allows the writ to be served in any county of the state, is overlooked.
In re Doll, 50 N. W. (Minn.) 607, is this: Under a statute provision that the person applying for the writ must apply to a court or judge in the county where he is restrained, if there be one therein willing and capable to act; that if there are none in that county, application must be made to the nearest or most accessible court or judge capable and *180willing to act; that if the application be made to one not in the county of the restraint, .proof is. required that there be none in that county willing and able to act, and that the more remote tribunal applied to shall deny the application unless such proof is made, it is held that without such proof it is error to entertain the application outside of the county of the restraint. This rule is in a general way followed in Ex parte Ellis, 11 Cal. 222, 225, and the statute there is merely that writ may be granted by certain named judges. Neither Kansas, Minnesota, nor California have statutes which authorize habeas corpus to be brought where it is most convenient in distance to the applicant, or permitting the writ to run into any part of the state.
College of Physicians v. Guilbert, 100 Iowa 213, was a proceeding to compel the state board of medical examiners to recognize a medical school as being in good standing. Writ of certiorari was resorted to to compel this action, and obtained in a county in which the act complained of was not done, and in which the officers charged with doing same did not reside. The case, therefore, decided rightly that the writ was not warranted. It is not applicable here, because there is no statute provision that the writ of certiorari may be obtained of a tribunal most convenient to applicant in point of distance; because there is no statute like Sec. 4419, under which writ of certiorari may, like habeas corpus, be served in any part of the state; and because the only statute provision as to certiorari is Sec. 4155, Code, that this writ “may be granted by the district court or judge thereof.”
Ex parte Clarice, 100 U. S. 399, and Ex parte Virginia, idem, 339, but hold that when the writ of habeas corpus is directed to an inferior court by the Supreme Court of the United States, it involves appellate review, and that appellate courts are authorized to issue it by exercise of either original or appellate jurisdiction.
State ex rel. Durner v. Huegin, 85 N. W. (Wis.) 1046, as to which the minority say that it “is also quite closely in *181point,” holds that, for the purpose of review as to who are adversative parties, — or plaintiff and defendant, no matter how named, — as to what counsel may be paid by the state, and in settling what is res judicata, a habeas corpus proceeding is civil and not criminal.
Sec. 260, Code, cited, deals with the superior court, and provides that “said court shall have jurisdiction concurrent with the district court in all civil matters,” except some excluded in terms.
Barranger v. Baum, 30 S. E. (Ga.) 524, says nothing about habeas corpus, except that it is an extraordinary remedy within the purview of statutes which prescribe the time for filing bill of exceptions in suits which seek an extraordinary remedy; and that where an extradition warrant is asked, petitioner may show on habeas corpus that he has given bond in bail trover for goods involved in the criminal charge upon which the warrant is demanded.
Surely none of these make clear that the voice of authority is against entertaining habeas corpus as was done below.
II. The dissent presents the following arguments (stated in ultimate effect) why the statute should be construed to limit entertaining the application to the tribunal nearest to applicant. Roughly, these arguments are: ■ (1) Opportunity for harassment of respondent by captiously selecting a tribunal at great distance, which, as is claimed, the judge has no power to deal with because he cannot refuse the writ. (2) Hardship or expense, or both, to respondent and witnesses. (3) There is no adequate review, if any. (4) It has been the custom of the Supreme Court to send such application to the tribunal nearest to applicant.
As to the last, the general statutes on venue contemplate that, unless special provision be made, all actions, and, consequently, all complaints of official action, must be prosecuted in the tribunal nearest to the impleaded official. Therefore, if a special provision is made that a particular complaint shall be presented where it “is most convenient in point of *182distance to applicant,” these words are not repealed because the Supreme Court has sent applications which comply with these words to a district court nearest to applicant. And, for all that appears, the particular courts to which such transfers have been made were not only nearest to applicant, but, as well, “most convenient in distance.” If sending such an application away proves that the statute under consideration has no effect, it can be as well argued that the transfer repeals the law which authorizes the Supreme Court to entertain habeas corpus.
2.
As to the claim that, in details specified, such great hardships will follow our construction as that it should be held that the legislature meant nothing by the words it put into Sec. 4420, I am of opinion that most of these hardships are fancied; that as much hardship will result from adopting the construction favored by the minority; that if any burdens are created by the view of the majority, the legislature must have foreseen them; and that clear words in a statute should not be cancelled because their natural effect is to produce consequences anticipated by the body that employed such words. I think what has just been said is applicable to most of the arguments advanced by the minority, which have not as yet been referred to. These are:
a. As to the statement that the patient will be encouraged to bring as many applications as he can induce attorneys to institute, and he or his friends may be able to finance, and this as a method of obtaining a release without the burdens attached to release or parole — As will be shown later, an application to be discharged because cured is not one for, and if granted does not obtain, a parole. Hence, the construction of the majority will not enable one to use an application like the one at bar as a means of getting a parole. A patient may vex officers by repeated applications, whether venue lies in *183one county or another. However, the average inmate of an asylum is hardly in position to finance any such applications.
b. The argument that allowing application to a tribunal literally not the nearest might “perhaps” be a burdensome expense to the state, and, certainly, upon respondents who are not rich, is met in part by the minority which makes such argument with the statement that ‘1 attendance in the supposed case is compulsory. ’ ’ And, as will be later pointed out, witnesses might have to go a greater distance to attend upon a court in the county where the superintendent lives than if the inquiry were held in some other county.
c. It is claimed that under our construction actions may be brought in remote counties though “there be no shadow of excuse” for proceeding there; that; if the plain words of the statute be given effect, it will be possible ‘ ‘ for some worthless vagabond of a father” to call the mother to defend her rightful custody of their child in the most remote of counties, by his merely alleging that he and his witnesses live there, and that it is most convenient for him as a place of trial; that the court or judge has no discretion and must entertain such application, and is subject to a penalty if he refuse; that, therefore, no review of the right to apply exists below, and that there is no adequate appellate review. I answer that, if the construction of the minority ruled, these applications would have to be made in the county of respondent’s residence ; that, therefore, there could be no review anywhere else, no matter how much hardship the making application in that one county would create; that, as will presently appear, trial in that county might be much more burdensome than if held in some other county; and that for the rest, the premise is faulty, and the deduction irrelevant. There is no law which penalizes the judge who rightly denies the writ of habeas corpus and the minority itself suggests that there may be a transfer of the application or a quashing of the writ issued — which, of course, presupposes review. As will be seen presently, review below is not only permitted but imposed. So far as review *184on appeal is concerned, that is, under well-settled rules, far from plenary. But it is as full as appellate review of the kindred acts of denying or granting a change of venue, and, surely, if review of an act authorized by statute is inadequate, additional legislation, rather than,judicial amendment or repeal, is the remedy. The minority errs in the premise that the courts have no power of review, and in the deduction that they will not refuse to entertain applications wrongfully made in a more remote county, — that they will hold a tribunal to be most convenient in point of distance to applicant when that is not true. All this simply overlooks the statute contemplating a judicial inquiry into whether the tribunal selected is the one authorized by statute, in that it provides that if the one selected be not the one most convenient in point of distance, the application shall not be entertained unless a satisfactory showing be made which excuses the selecting of the less convenient court or judge. It also ignores the foundation upon which the administration of justice must rest, to wit, the presumption that the judges of the land will not entertain applications where the selection of the tribunal is not warranted by statute, is purely captious, made with evil intent, and is without “shadow of excuse.”
d. The statement, that “whether she was cured or not was not within the knowledge of persons living within Clayton county; for it is conclusively adjudged (in that county) that where they knew her she was addicted to the drug habit and should be confined in an asylum” either means nothing whatsoever or else asserts that, if one is an inhabitant of a county wherein a patient is adjudged fit for detention, he can never have knowledge that the person there committed has been cured. This ignores that whatever was adjudicated in Clayton county binds equally the inhabitants of all the counties. And it makes the impossible claim that the inhabitants of a county wherein a patient is adjudged to go to an asylum can get no knowledge that the person committed has later been cured. In the same case is the statement that “no one but witnesses *185who saw her after she had been taken to Mr. Pleasant could give any opinion as to her recovery; so that not only the parties but the witnesses were at Mt. Pleasant.” If one concede that none but witnesses who saw applicant after she had been taken to Mt. Pleasant could give an opinion as to her recovery, I know of no law which prohibits people who live in Clayton county from seeing her while in Mt. Pleasant.
e. A thought already expressed may properly be amplified in this connection. Since general statutes provide that all applications must be brought in the county wherein the respondent lives, the legislature must have foreseen that the special provision, that a particular application should be brought in the county most convenient in point of distance to the applicant, would probably be understood to provide for eases in which courts might entertain the application on the ground that it was most convenient to applicant in point of distance, although not the nearest in distance. It must have been known that the arrangement of railroad service and the location of witnesses might make the tribunal nearest in an air line more inconvenient than one not so near in distance physically. In foreseeing this, is included anticipating that applications might be made before tribunals not most convenient in point of distance, — that there is opportunity to institute vexatious litigation and impose burdensome expense, and other hardships. When, therefore, in the knowledge that either or all of these might happen, the legislature made this specific statute covering particular eases, and additional to general statutes, construction should not make this special provision idle, nor deal with the general statute as though no addition thereto existed, merely because- there might result under this special statute what the legislature must have foreseen would, or might, follow its enactment.
f. If the tribunal applied to is “most convenient in point of distance to the applicant, ” it is not material, were it true, that trying the application before such tribunal is, in some regards, greatly more burdensome than would be trial before *186some other. If obeying the statute creates avoidable and undue hardship, the remedy must come from the legislature. The judiciary is limited to inquiry whether the tribunal selected is most convenient to applicant in point of distance. The vital question for the court is what provision the legislature has made, not whether it might have made a better one. But it is not true that no hardships will follow on the construction favored by the minority. Most convenient to applicant involves (1) the distance he must travel, (2) the convenience of that travel, in the sense that a court more miles away may be more readily accessible than one not so many miles away, and (3) — as is strongly intimated in Thompson’s Case, supra— where applicant's friends and witnesses are. ¥e take judicial notice that courts and judges act in county seats, and that it may be much more difficult to reach the seat of the county in which some of the parties live than to reach some other county seat. The friends and witnesses of applicant may be so located as that some county other than the one in which respondent lives may be most convenient in point of distance, i. e., the distance these must travel. If the majority is right in holding that only those who saw the patient in the hospital can testify as to his recovery, hardship would surely result from giving the tribunals of the county wherein the hospital is exclusive jurisdiction in a case where all who had there seen him, except the respondent and his subordinates, always lived in or had removed to a part of the state remote from the hospital.
If we follow the elementary rule affirmed by the Ware Case, that, in determining whether procedure in habeas corpus is valid, we should not construe “with overteehnical nicety,” and that everything which is “ambiguous or doubtful should be interpreted liberally to promote the effectiveness of the proceeding,” it is not difficult to find that the legislature had a substantial reason for this exceptional and clear statute. The very reasons which ordinarily make it a hardship to litigate in courts held in counties in which defendant does not reside are reasons for letting the convenience of the applicant *187in habeas corpus determine, the forum. The superintendent or physician is not at home in the asylum in the ordinary sense of home. He defends for the state, and the state is not a stranger in any of. its courts. If it is permissible to presume that local sentiment may be hostile to the state, then it should be arranged that all indictments be tried at some spot, as nearly central to all the inhabitants of the state as possible, where the state has no enemies. On the other hand, the hospital town is not the home of the patient. That patient may be a child whose home, friends and evidence are far from the place of detention. In many, if not in most cases, evidence and help to establish the right to liberty may, as seen, be found in some place other than the county in which the institution is. Have we the right to annul the legislative will which so plainly desired to give the patient an opportunity to overcome a handicap — to permit him to make his struggle for freedom where he thought conditions the most favorable?
III. By a statute requiring applications in habeas corpus to be made to the tribunal most convenient to applicant in point of distance, although other statutes provide that actions, generally, must be prosecuted in those that are physically nearest, and by enacting that the tribunal applied to may refuse the writ unless applying to the more remote court is well excused, the legislature recognizes that judicial inquiry may be necessary to determine whether application had been made to the proper court — whether the tribunals of the county in which respondent lived were or were not the ones most convenient to applicant in the sense of the statute. We said in Ware’s Case, supra, that “the phrase ‘convenient in point of distance’ is one of quite indefinite meaning, and often might reasonably be applied to any one of several judges residing in different localities.” It is clear, then, that whether the tribunal applied to meets the requirements of this special statute is a pure question of fact. By entertaining the application, the trial court resolved this question of fact in favor *188of the position that the tribunal selected was most convenient to applicant in point.of distance. This being so, there are two reasons, resting on accepted rules of practice, for not disturbing this finding: (1) Such finding of fact, ordinarily, concludes us, and no evidence was put in to support a claim that the court applied to was not the one so most convenient. (2) The respondent may not complain that the court selected by applicant was not the one so most convenient to applicant. While the court may decline the writ if proper excuse is not made for bringing the application in the more remote county, error in retaining the application avails only those who are injured thereby. This statute is for the benefit of applicant, and does not consider the convenience of respondent. He may not complain that applicant went before a court less convenient to him than he might have selected. The respondent is not harmed because his adversary was content with less than the law gave.
IY. As the minority concedes that the amendment of Sec. 4420 by Acts Thirty-fifth General Assembly, Ch. 293, does not affect this appeal, there would seem to be no occasion to refer to this amendment. But it is so misconstrued as that, for the benefit of future litigation, such construction should not go unchallenged. And the view taken of the effect of statute amendment on decisions upon which the amendment does not operate is such as that approval by silence would endorse an utter confusion of the relations between the legislative and judicial departments. The amendment referred to makes two changes: (1) compels the refusal of the writ if application be not made to the tribunal most convenient to applicant.in point of distance. Before, such refusal was discretionary. (2) On the question whether a case exists for retaining the application, though the tribunal is not thus most convenient, no consideration is to be given to the convenience or preference of attorneys, witnesses, or other persons interested in the release of applicant. An amendment that an application must be denied unless good reason be shown for *189entertaining it in a tribunal not most convenient to applicant in point of distance, and defining what is not a sufficient reason for entertaining an application made to a tribunal not thus convenient, manifestly works no change whatever in the statute which, in express terms, puts the venue with the tribunal thus most convenient. The amendment is wholly confined to what shall be done if application is made to a tribunal not so most convenient. The tribunal which is thus convenient remains the proper one.
The dissent proceeds on the assumption that said amendment has relieved the people of the state from various alleged oppressions possible under a construction which allows an inmate of a state institution to bring habeas corpus where the statute says he may. It congratulates the legislature upon “this providential act” — providential because of the fancied relief given superintendents of state institutions. Mingled with this felicitation upon what, as seen, the legislature has not yet done, is regret that the imagined relief given to such officers was not extended to all respondents in habeas corpus; and thus the dissent justifies itself with the statement that none would have been written had the legislature done its whole duty. The minority assumes that this imagined and lauded relief was given to cure in part the evils arising from the views of the majority — views not announced when the legislature acted. Upon this is based the hope that, under the spur of this dissent, the assembly will complete what has not yet been begun.
But just how is this judicial pronouncement justified, or proper, or relevant, if the legislature had acted as the dissent asserts? If the legislature thought it proper or necessary to amend the statute under consideration, that was its right. Such amendment may prove that an amendment was needed to make the law what the minority asserts we should declare it to be without reference to amendment. But the amending of a statute is surely no reason why the Supreme Court should have done the amending, and beaten the General Assembly in *190a race at law making. If the legislature has by amendment given certain officers an immunity, it must be assumed that it needed the act of the legislature to create such immunity; the Supreme Court is not to create it. In the last analysis, the dissent is a criticism upon the court for the failure to anticipate by decision what the legislature has finally done by enactment. It is hardly the accepted understanding of the functions of courts of last resort that they are to relieve the legislative department from making such amendment to statute law as it may develop is needed.
Y. All questions of whether this application was entertained in the proper forum have, on the authority of the Ware Case, 146 Iowa, at 242, been waived by the fact that the respondent appeared to the writ and produced the patient. In that case we said:
“In the last cited case (Simmons v. Georgia Iron & Coal Co., 117 Ga. 305, 43 S. E. 780), where question was raised whether the particular judge issuing the writ should have entertained the proceeding, it was held that, as the party against whom the writ issued appeared and produced the petitioner and pleaded to the petition, objection to the propriety of the judge’s action should be- overruled. The same principle appears to be affirmed in Broomhead v. Chisolm, 47 Ga. 390; Church on Habeas Corpus, See. 156; Re Ross, 3 Practice Reports (Can.) 301. In the Broomhead Case the court, responding to an objection to the jurisdiction, said that whatever might have been the decision had the respondent declined to produce the prisoner, it was unnecessary to consider, for, ‘having brought him before the judge in obedience to the writ, we are not disposed to scan too critically the mode in which he got there, but hold that being there, the judge had authority to pass such order as the nature of the case demanded.’ ”
Division II.
As the result of a laborious analysis of numerous statutes, the minority finds that female inebriates are received *191at either of the hospitals for the insane, while male inebriates are received in the institution at Knoxville alone; that the statute which allows release before expiration of term applies to the institution of Knoxville only, and declares upon these findings that it was a mistake to commit the applicant for a term which could be shortened or suspended, and that the sentence erroneously imposed on her should be treated as a definite sentence for not less than one nor more than three years, a sentence authorized by a statute under which she was not committed. If what the minority says is to have any effect, it is its ultimate conclusion: (1) That the legislature intended to make it possible for a woman to be detained after she was cured, while the term imposed upon the male could at least be suspended by parole upon the mere belief that he appeared to be cured. (2) That while, where a statute is not applicable to women, they may not use its provision to gain freedom, such statute is, however, effective to put them into and keep them in detention.
It is the fact, and at one stage of its evolution the dissent admitted, that no question is made as to the propriety of the commitment. Under it the superintendent took and keeps applicant. Surely, one who is imprisoned may invoke the law under which the detention is justified, in testing the legality of his detention. See Jones v. McClaughry, 169 Iowa 281. If this be not permitted, and if the sentence is not warranted by the statute under which it is ordered and is being executed, then the writ must be sustained without consideration of who can discharge a patient rightly committed; because, of course, habeas corpus lies to liberate one who is detained under a law which does not apply to him — upon a commitment which has no law to rest upon. But because a distinction as to who may be paroled is utterly arbitrary if based upon difference in sex, I am firmly persuaded that the legislature did not intend to make such distinction. One cannot conceive why a woman, and not a man, should be detained for a fixed term, without provision for liberation if sooner cured. To construe the law *192thus is to disregard the elementary rule declared in Ware’s Case, supra, that in dealing with habeas corpus, or other remedies in aid of liberty, the construction should not exhibit “overtechnical nicety,” but should be one that is “liberal and calculated to promote the effectiveness of the proceeding. ’ ’
II. The statute under which the application at bar is made provides that “the term of detention and treatment shall be until cured, not exceeding three years”; other statutes, that there may be conditional release upon the recommendation of certain hospital officers, and before it has been determined there has been a cure, if (1) there is apparent cure, or (2) if these officers believe there has been a cure. The dissent points out, rightly, that habeas corpus will not lie unless the applicant be entitled to unconditional and absolute release, a release without any of the safeguards thrown about the granting of parole. It is urged there should be no unconditional release because it can never be known except by long continued conduct that there has been a cure; that no release by the court is in any view warranted unless the conditions are exacted for which the parole statute provides; that if, on application for absolute discharge, the court would find no more than an apparent cure, a complication would arise on whether, upon such finding, the hospital officers must give a parole. The question is asked whether it is possible there can be full release in one case and conditional in another. It is said the difference between actual cure, apparent cure, and cases wherein the superintendent believes there is a cure is too refined for distinction, and argued that, if the court had any jurisdiction to release, all applications for release are for the court, and that this destroys the conditional release provided upon recommendation by the hospital officers. The ultimate argument made, in terms, is that the contrary is true; that there can be no release by the court, and the hospital officers alone can act either upon apparent or actual cure.
I shall attempt to show presently that all this rests upon the misconception that one who applies for liberation because *193detained after cure has ended his sentence is applying for a parole. For present purposes, it suffices to say that, if the courts have no power to determine on habeas corpus whether an inebriate is being unlawfully detained at the state hospital, it will have to be explained what the legislature meant by Ch. 293, Thirty-fifth General Assembly, wherein it amended the habeas corpus statute by making the provisions of that statute mandatory in all cases where “the applicant is an inmate of or confined in a state institution.” The amendment makes no exception, and surely one committed as an inebriate is “an inmate of or confined in a state institution.” If habeas corpus may, under no circumstances, be resorted to by an inebriate thus confined, what occasion was there for a provision that as to him the requirements' of the statute on applications for habeas corpus must be followed?
2.
The statute under which applicant was committed enacts that the “term of detention and treatment shall be until cured, not exceeding three years.” Self-evidently, this contemplates that rightful detention is at an end whenever the patient is “cured.” The gravamen of the application here is detention after cure. Other statutes provide for releases of patients “whom the superintendent believes to be cured,” or so much improved as to make their release on trial advisable; and so if “after thirty days’ treatment and detention a phtient shall appear to be cured.” Notwithstanding the assertion of the dissent that the legislature makes no perceivable distinction between a cure and an apparent cure, and that when the superintendent believes there is an apparent cure this is in his mind equivalent to actual cure, it is perfectly manifest that the legislature has made a clearly expressed distinction between cases of actual cure and those where the superintendent believes a cure exists, or where the patient “shall appear to be cured.” The very words used in the statutes *194prove that such distinction is made, more clearly than any argument can.
Under the Constitution, and Sec. 225 of the Code, the district court has “general, original and exclusive jurisdiction of all actions, proceedings and remedies, except in cases where concurrent or exclusive jurisdiction is conferred upon some other tribunal.” Whether, under this, it was necessary to give the district court jurisdiction in habeas corpus needs no consideration because it is elsewhere expressly given such jurisdiction; and the grant is exclusive, except that the Supreme Court, its judges, and those of superior courts are also given such jurisdiction. As habeas corpus can be entertained by the district court, and as it is the proper remedy for one who is illegally imprisoned with or without form of law (Express Company v. Lynch, 65 Ga. 240, 245; Barranger’s Case, 30 S. E. (Ga.).at 527, left col.), it follows that, unless some statute has made an exception, the district court has power to discharge one who is illegally detained in a state institution. And as the officers of such institutions have no inherent power to make judicial investigations, and to release patients as their result, it follows, also, that as to such officers the power to release a patient is exclusively in the district court, unless some statute has given these officers either exclusive or concurrent authority. That certain statutes hereafter discussed give such powers in some cases is true, and it may be assumed that, in so far as power is conferred at all, it is exclusive. But as the court has power to act in the particular case at bar unless same has been exclusively conferred upon officers of state hospitals, the exact question is whether this has been done. Now while the statute says that the term shall end when the patient is cured, it does not say who shall determine whether a cure has occurred before the maximum time of the commitment has expired. Such silence authorizes the district court to make such inquiry and no silence can authorize said ministerial officers to make it. This particular statute, then, gives the court power to act, and no *195power to said officers. If the court does not possess this power, it must, as said, be due to the fact that other statute provisions deprive it of that power. In varied ways, the minority insists that the so-called parole statutes divest the court of power on habeas corpus to say that an actual cure has occurred, and that, therefore, detention is unlawful. The remaining question is whether said statutes have any reference to release for actual cure. If these make all releases dependent upon recommendation by the hospital officers, and the exactment of certain conditions, then the trial court erred; otherwise its decision is right. One statute needs little consideration on this inquiry: it provides that the board of control may discharge persons committed on recommendation of the superintendent “when satisfied that such person will not receive substantial benefit from further hospital treatment.” (Ch. 119, Thirty-second General Assembly.) Certainly, this does not deal with cases of cure, but contemplates rather those in which cure is found to be hopeless. Other provision is that, upon signing prescribed pledge, making report and other conditions, and with provision for return on breach of pledge, or failure to observe conditions, any patient may be “paroled” if the superintendent believes him to be cured, or so much improved as to make his release on trial advisable. (Ch. 185, Thirty-fifth General Assembly.) The only other provision permits parole by the governor on the recommendation of the physician in charge and superintendent, and on similar conditions and pledges, in cases where the patient shall appear to be cured after thirty days’ treatment and detention. Beyond question, these authorize a parole on recommendation of these officers, and the exacting of said conditions in all cases where the superintendent believés a cure exists, or there is so much improvement as to make release on trial advisable, and where the patient “shall appear to be cured.” But the power thus given confers only what it gives. It deals with experiments in cases wherein it is merely possible that a cure has occurred, and makes provision for summarily curing the *196error if the conditional discharge prove an error. These do not pretend to negative that a patient may be actually cured, and do not intend to cancel the other statute which deals with cure only, and ends the term upon cure. The parole statutes no more give exclusive authority, or any authority, that said officers may determine whether there has been an absolute cure, and, therefore, a warrant for absolute discharge, than giving the board of- control the power to issue a parole takes from the governor the power to issue a full pardon.
3.
The essential error of the minority is confusing an application for parole with one which asserts that the applicant is being detained after his sentence has expired, and holding thereupon that a statute which contemplates that the sentence has expired when a cure occurs, and fixes a maximum imprisonment of three years, has the same function as statutes which allow an experimental release before sentence has expired. The statute invoked by applicant does not commit for three years, but until cured, — is not a law that cure fails to terminate the sentence short of three years, but that, whether cured or not, the state will carry the burden not more than three years. Were it conceded that the patient has in fact been cured after the lapse of but one year, it would follow that the detention had ended, and that subsequent confinement was illegal. The essence of parole and kindred statutes is that they involve an optional clemency. To an act which one may do or refuse to do, the condition may be attached that it will be done only if named persons so recommend. When one of whom relief is sought which is optional attaches conditions the most unreasonable, all the seeker can do is to abandon his quest. But those who seek release under the statute at bar are not asking clemency. They are not asking an optional shortening of sentence. They urge, and I think rightly, that their term ends whenever cured, and that the three years’ maximum is an administrative provision to re*197lieve the state if treatment for three years fails to get a cure; that they are cured, and are being unlawfully restrained because detained after their sentence has expired.
4.
Unless we may presume that judges will not act honestly and intelligently, the fact that hospital officers will deal with conditional releases honestly, and under the guidance of professional skill, furnishes no argument for taking from judges the power to determine whether there should be an absolute release. It might be a wise law that certain questions should be decided by experts, but the most we have is a rule that in some cases the testimony of experts is entitled to special weight. In no instance has power to act judicially been taken from courts on the ground that ministerial officers can give a wiser decision. If it is all wrong that the mere ‘ ‘ belief of the trial judge” that a patient is cured may liberate such patient, it should he made impossible to grant a directed verdict discharging one accused of murder on the ground that the judge believes the evidence fails to show guilt. The statute which contemplates absolute discharge upon proof of cure may be lame in failing to provide for the possibility that such release may prove unjustified, but that is for the legislature. It may be said in passing that the minority rests itself not upon the fact that the judge discharges without providing for recaption, but upon the ground 'that nothing but the judgment of the hospital officials justifies a discharge, and that neither courts nor judges are given power by statute to review their judgment or belief. In other words, if the ministerial officers released on the conclusion that there was an absolute cure, the failure to provide for recaption would not be considered very material. But, after all, any error in absolute release can be cured by a new commitment, which is more than can be said if one tried for felony be erroneously discharged. Of course, it would be ideal if courts never erred, but absolute freedom from error would not result from allowing all eases *198to be decided by experts. If jurisdiction depended upon proof that the courts had expert knowledge, and were infallible, they would rarely have power to act.
The statute which permits judicial inquiry on whether sanity has been restored is at least one instance wherein the legislature thought courts fit to investigate mental condition, and did not feel impelled to leave such inquiry to superintendents and physicians. True, this statute does not refer to inebriates. But the claim that any construction is wrong unless it give the expert exclusive judicial power is weakened by the fact that, in the one instance at least, the legislature, in express terms, left the determination of mental condition to the courts. Can it be that the legislature did not intend to trust anyone but a doctor or superintendent with determining whether an inebriate had been cured, unless so much of an inebriate as to have been committed for being insane ?
5.
Statements that certain ministerial officers alone have power to release, provided there be “absence of fraud, or want of good faith, ’ ’ or unless it appears that the failure or refusal to recommend a discharge was fraudulent or corrupt, or unless, in spite of proper conditions, a parole was refused, are less a successful avoidance than a confession of untenable argument. If the legislature has conferred on certain officers the exclusive authority to release, the motives and the propriety of the conduct of the tribunal so clothed with exclusive authority are quite immaterial. In that state of the law, the courts have no power to grant relief, although the only ones authorized to grant it have improperly or unjustifiably denied it. For, when the legislature entrusts a function exclusively to an officer, it creates a conclusive presumption, binding on all other tribunals, that those alone authorized to act will act rightly. Their motives and conduct and omissions can be dealt with only by a change of officials and the change can but substitute others eaually beyond control. If the minority *199is right, then though the patient be as sound as any mentally, and though the officers testify upon compulsion, by subpoena, that the patient is cured, he may not be released on habeas corpus because these officers have not formulated what they testify to into an official recommendation and a release.
III. The minority urges that unless we construe the statutes as a whole to provide that no patient can be released except upon recommendation by the officers who detain him, these officers would be “involved in constant litigation,” and liable to be haled into court at any time to have a judge determine whether the applicant appeared to be cured; that such patients are of sound mind and generally have friends to help them; that these will make it very unpleasant for the officials; that the judges in the districts in which the hospitals are located will “have their hands full in hearing habeas corpus actions”; and, also, that the officials will be greatly harassed by applications made in remote parts of the state, brought without attempt first to obtain a parole; and that the decision upon such applications is beyond review. That there is review has been shown, and that, if same be inadequate, the legislature must enlarge it has already been said, and is manifestly true. If the officials are threatened with harassment and the judges will be burdened because patients are allowed to apply for discharge to a court, certainly that will be true to even greater degree of applications made in the county of the detention. Such burden will be lighter if distributed than if centered. Passing whether patients committed as inebriates are usually prepared to indulge in expensive captious litigation, the “friends” will more readily finance repeated applications that can be made cheaply than those brought at a great distance from where the trial is in truth most convenient. Granting that habeas corpus will lie at all, the argument based upon the possibility of vexatious repetitions of the application is irrelevant. This court and many others are committed to the doctrine that vexatious litigation will not be enjoined, nor damages allowed because *200such is instituted, even when the promoter is insolvent. Gray v. Coan, 36 Iowa 296. Code Sec. 2306 provides that persons confined for being insane may re-bring habeas corpus after their sanity is denied by decision on an earlier application. While it is true that the statutes dealing with insanity do not refer to inebriates, yet such statute as to habeas corpus sought by one detained as insane is relevant to meet the argument that the legislature never enacts legislation which can make vexatious litigation possible. At least this one statute expressly permits repeated inquiry into mental condition. Therefore, the bare possibility that, under one construction of another statute, repeated investigation of whether an inebriate is cured is possible does not prove that the legislature did not intend such construction. If, as I believe, the statutes under consideration are not ambiguous, then it is immaterial that hardships may result from their enforcement. Of course, such consequences are to be considered if statutes that make them possible are not clear.
IV. As the legislature has not given hospital officers any power to decide whether an absolute release shall be granted because an absolute cure has occurred, the question whether the Constitution permits such power to be given should not, under well-settled and salutary rules, be discussed. But since the Constitution is invoked for the argument that, as parole laws are constitutional, the giving to' ministerial officers power which makes it possible for them to keep a cured patient under detention is also constitutional, I feel impelled to say this: That one law is valid does not necessarily establish the validity of any other law, unless their effect and general scope are substantially the same. I have already pointed out that an application for parole and one for unconditional discharge upon allegation of complete cure are essentially different. I may add that a statute giving ministerial officers exclusive judicial power to detain one after his term is ended, thus prohibiting review of'the act by the courts of the land, would deny due process of law on at least two grounds: (1) Every *201definition of “due process” includes action by a tribunal competent to act. These officers can act, if at all, on specific grant only. There is none, specific or otherwise. (2) It seems to me the legislature cannot say that the courts have no power to determine by habeas corpus, or some other sanctioned judicial procedure, whether there is an illegal restraint, and to liberate one found to be so restrained, and that to turn this power over to boards of control, asylum superintendents or asylum physicians also denies due process.
If such power to liberate cannot be taken away, and, at any rate, where it has not been attempted to take it away, the courts have power to inquire whether one confined under the statute at bar has been cured. This is an inquiry which lies in the path of whether there be detention after the term. Therefore, by inherent right, constitutional grant, general statute grants, and the grant of power to sit in habeas corpus, the trial judge committed no error in construing and applying this statute, and in asserting the right to liberate the applicant if it were found she was cured at the time she applied.