(dissenting). — I. The conclusion reached by the majority is fraught with such vital consequences that I cannot concur therein. Fortunately, the legislature has cured one of the mischiefs of the opinion by the enactment of Ch. 293, Acts of the Thirty-fifth General Assembly, making it impossible hereafter for inmates of inebriate asylums to commence actions of habeas corpus against the superintendents of the hospitals before any judge in any county of the state, no matter how remote, and compel him to go with all his witnesses to such remote court to resist the charge that an inmate has been cured of his habits and should be discharged. But for this providential act of the legislature, the superintendents of these hospitals would, under the majority opinion, have little time for anything else than to defend suits brought for these inmates; and would be subject to costs and other expense for which there seems to be no reimbursement from the state. *202Again, a refusal to discharge is not an adjudication save as to the condition on the day of trial, and there is no limit as to the number of actions that may be brought by such persons against the superintendents.
Again, without any request from a patient for a parole, this patient may go to any part of the state, bring his action of habeas corpus, demand a trial and put the expenses upon the superintendent or perhaps upon the state, without any request whatever for a parole or conditional release. The effect of this holding upon the administration of our inebriate asylums is that efforts of the state to cure the liquor or drug habit might as well be abandoned. On the first proposition involved, in view of the recent act of the legislature, I would not dissent but for the fact that other actions, as by a parent to recover possession of his child and other actions of like nature, may, under the holding of the majority, be brought in the most remote county of the state, provided a district judge can be induced to grant the writ; and there is no way in which to reach an erroneous order for a hearing and trial in that remote county, although there is no shadow of excuse in fact for bringing it there. In this way, persons in close financial circumstances, having the rightful possession of a child in Fremont county in the southwestern part of the state, may be compelled, say, by the worthless father of a child, to appear before the district court of Allamakee county in the northeast corner of the state, and must pay the expenses of the trip, and doubtless, on request, advance witness fees. The attendance in the supposed case is compulsory, and, according to the opinion of the majority, there is no power to review the question of the right of the district court to issue the writ. I cannot assent to this conclusion.
Section 4420 of the Code provides as follows:
“Application for the writ must be made to the court or judge most convenient in point of distance to the applicant, and the more remote court or judge, if applied to therefor, *203may refuse the same, unless a sufficient reason be stated in the petition for not making the application to the more convenient court or a judge thereof. ’ ’
Under previous decisions, the applicant has been held to be the person whose liberty has been restrained, no matter who the plaintiff or relator. In the opinion of the majority, this provision as to who may issue the writ has always been the law. Of course, the Supreme Court, or a judge thereof, has jurisdiction co-extensive with the state. But this is not true as to district or superior courts or judges thereof. Their jurisdiction is limited to their respective districts, and, as a rule, to persons within their district. See Code, See. 225, et seq,, Sec. 260, et seq. In certain instances, cases may go on change of venue to other districts, as authorized by See. 249, Code, and judges may interchange and they may be assigned out of their regular districts. But the general rule is as above stated, and it requires a special statute to give them any other jurisdiction. Again, personal actions must be brought, as a rule, in the county where the defendants, or some of them, reside. And it is especially provided that actions against a public officer or person specially appointed to execute his duties, for an act done by him in virtue or under color of his office, or for neglect of official duty, shall be brought in the county where the cause, or some part thereof, arose. Code Sup., 1907, Sec. 3494. Under the latter statute, it was held that a writ of certiorari against the state board of health must be brought in the county where the board acted. College of Phys. & Surg. v. Guilbert, 100 Iowa 213.
The statute giving jurisdiction to the district court in certiorari cases is quite as broad as the one giving such courts jurisdiction of habeas corpus matters, in that it says that the writ may be granted by any district court or judge thereof. Compare Secs. 4155 and 4419 of the Code. Again, as a rule, ^nder the law before its amendment, application must be made to the judge nearest in point of distance to the person *204whose liberty is restrained; and if for any reason he cannot or should not act, then to the next nearest in the district where the applicant resides; and if that one cannot or will not act, then possibly to the next nearest outside the district. That is what is held, as I understand it, in Thompson v. Oglesby, 42 Iowa 598. It makes no difference that the applicant has a legal residence in some other county; the test is the physical presence of the person whose liberty it is claimed was unlawfully restrained. In Thompson’s Case, the holding was that the petition should have been presented to the judge of the district court next nearest the person whose liberty was restrained, and it was there said:
“Again, the plaintiff and defendant, the person restrained and the person restraining, must be presumed to be together. The evidence, if any, showing the legality of the imprisonment would ordinarily be at the same place. If the imprisonment is legal, the defendant should be allowed to show it was with the least possible trouble and expense. If the imprisonment is illegal, the person restrained is entitled to his liberty at once. There is no reason why his imprisonment should continue until he can be brought before some remote court or judge, wherever some person may happen to be who desires to present a petition in his behalf. ’ ’
Accordingly, the venue was ordered changed to the proper county on defendant’s motion.
In the College of Physicians <& Surgeons Case, which, it is true, was certiorari, and not habeas corpus, but which, for reasons stated, is clearly analogous, the court, quoting the statute, which is the same as the present Code Sup. Sec. 3494, said:
“Under the facts as we have given them, there could be no doubt that such an action must be brought in Polk county, for the alleged illegal acts that constitute the cause of action occurred in that county, and consequently the cause of action *205arose there. But it will be seen that the action may be brought in the county where the cause of action or some part thereof arose, and it is thought that some part of this cause of action arose in Lee county. . . . It is urged that the state board of examiners is state-wide, and as much a resident of Lee as of Polk county. Admit this claim, and it does not affect the result. The jurisdiction does not depend on residence, but on the fact of where the cause of action arose. The law provides that the board shall hold meetings in different parts of the state, so as to best accommodate applicants; so that a cause of action is liable to arise in any county of the state, and the jurisdiction is not confined to Polk county, except when the act constituting the cause of action occurred in that county. We conclude that the proper venue of the action is in Polk county.”
Ware v. Sanders, 146 Iowa 233, 240, contains nothing inconsistent with these views. All that the case really decides is that the Supreme Court, or a judge thereof, has jurisdiction in habeas corpus matters coextensive with the state. This remark from that opinion may be quoted as showing the appositeness of the College of Physicians Case:
“The right to issue the writ of habeas corpus, like that to issue the writ of certiorari, is a very appropriate, if not necessary, attribute of an appellate court under our system of government, which administers justice according to the principles of the common law. While it is often and truly said that habeas corpus cannot properly be made to serve the office of a writ of error, yet the power given to the Supreme Court to entertain such proceedings is a branch or phase of its appellate jurisdiction, and furnishes a direct and summary method by which, in the interest of liberty, the power and authority of an inferior court to render a given order or judgment by which a citizen is restrained of his liberty may be determined without delay. This view of the nature of habeas corpus proceedings in our court of last resort finds support *206in numerous precedents. For instance, in Clarke’s Case, 100 U. S. 399, 25 L. Ed. 715, the petitioner, being in custody under an alleged illegal process issuing from a trial court, applied to Justice Strong of the Supreme Court of the United States, who allowed the writ, but ordered the hearing to be had before the full bench. Objection being made to the jurisdiction, the court said:
“ ‘It is .clear that the writ, whether acted upon by the justice who issued it, or by this court, would in fact require a revision of the action of the circuit court by which the petitioner was committed, and such revision would necessarily be appellate in character. This appellate character of the proceeding attaches to a large portion of cases in habeas corpus, whether issued by a single judge or by a court. The presence of this feature in the case was no objection to the issue of the writ by the associate justice, and is essential to the jurisdiction of this court. The justice who issued it could undoubtedly have disposed of the case himself, though not at the time within his own circuit. A justice of this court can exercise the power of issuing a writ of habeas corpus in any part of the United States where he happens to be. But as the case is one of which this court also has jurisdiction, if the justice who issued the writ found the questions involved to be of great moment and difficulty, and could postpone the case here for the consideration of the whole court without injury to the petitioner, we see no good reason why he should not have taken this course, as he did.’
“In re Virginia, 100 U. S. 339, 25 L. Ed. 676, while suggesting in effect that if habeas corpus were to be classed as an original proceeding, there would be doubt of its jurisdiction, the court proceeds to say: ‘But the appellate power of this court is broader than its original, and generally — that is, in most eases — it may be said that the issue of a writ of habeas .corpus by us, when it is directed to one of our inferior courts, is an exercise of our appellate jurisdiction. ’ ”
*207See also Rivers v. Mitchell, 57 Iowa 193.
Authorities from other jurisdictions support the views herein expressed. Vide In re Jewett, 77 Pac. (Kans.) 567; Ex parte Ellis, 11 Cal. 222, 225; In re Doll, 50 N. W. (Minn.) 607; Barranger v. Baum, 30 S. E. (Ga.) 524. In re Jewett, supra, contains a learned discussion of the matter and cites many cases in support of the rule. State ex rel. Durner v. Huegin, 85 N. W. (Wis.) 1046 (62 L. R. A. 700), is also closely in point. See also Church on Habeas Corpus, Secs. 70-74.
The fact that the legislature has passed the act already referred to is not, in my opinion, an answer to these views. No doubt the holding in this ease by the trial court was considered so mischievous and so embarrassing to the superintendents of our state hospitals, that the legislature, in the absence of a definite decision by this court on the subject (notwithstanding intimation in one of our cases already cited by me), concluded to set this matter at rest by framing the act in question, without in any manner intending to say that other actions of like kind, which might prove just as mischievous as this one, might be so brought, or intending in any way by entire inaction in those cases to justify the same. Rural School Dist. v. Dist. of Kelley, 120 Iowa 119. If anything is to be inferred from legislative inaction, it is that our pronouncement in Thompson’s Case, supra, and in College of Physicians v. Guilbert, 100 Iowa 213, construing the venue of habeas corpus and certiorari proceedings, was correct, for it did not at any time attempt to meet these interpretations of the statute, by amendatory legislation.
There must be some way of reviewing the action of the district court in these matters, and I think it is either to dismiss or quash the writ or to transfer the case to the proper county for trial. It has been the custom of this court in the past, under its plenary power, to issue writs of habeas corpus and direct that they be heard by some district court judge nearest to the parties. This practice was at one time quite *208common, and it was rare indeed that this court or a judge thereof, either at Des Moines or at his residence, heard habeas corpus proceedings, for the very good reason that the parties should not be compelled to travel long distances and be at great expense in order to have a hearing.
It must be remembered that, no matter by whom the action is brought, the applicant is the person who is restrained of his liberty, and the defendant is the person who is exercising the restraint. In this case, both were in Henry county, and no application was made to any judge save Judge Springer, in Clayton county, many hundreds of miles by rail from Mt. Pleasant. "Whether plaintiff was cured or not was not within the knowledge of persons living in Clayton county, for it was conclusively adjudicated that when they knew her she was addicted to the drug habit, and should be confined in an asylum. There could be no review of that finding upon habeas corpus. The only question, then, according to the majority of the court, was whether she was cured of her bad habits after she had been taken to Mt. Pleasant, and no one but witnesses who saw her after she had been taken to that place could give any opinion as to her recovery — and that was the only issue in the case — so that not only the parties but the witnesses were at Mt: Pleasant, and all were compelled to go to Clayton county to testify at the trial of the case. It is no wonder that the legislature interfered and, when its attention is called to the holding of the majority in this case, it will doubtless again interfere so that like mischiefs may not be perpetrated, when, for instance, some worthless vagabond of a father calls the mother of his child, who has the rightful possession of it, to defend her custody in the most remote part of the state on allegations that he lives in that remote county; that it will be more convenient for him to try it there and that his witnesses live in that county. At any rate, it is to be hoped that something may be done to forbid such a result.
II. Aside from this, I think the majority have destroyed the most valuable feature of the inebriate law by permitting *209and suggesting to every dipsomaniac and every victim of the drug habit how to disregard the parole features of the law and encouraging them to bring as many actions of habeas corpus as they can induce attorneys to commence to secure their release, without any conditions or pledges whatsoever. Under allegations of a cure and without submitting the matter to the superintendent at all, any inmate may now secure a writ of habeas corpus and demand as many trials as he or his friends may be able to finance; for, upon such allegation, a proper court or judge must issue the writ. He has no discretion whatever in the matter, and is subject to a penalty if he does not issue it. The district judges in any of the districts where these hospitals are located will doubtless have their hands full in hearing habeas corpus actions.
Plaintiff was committed as a victim of the morphine habit until cured, not exceeding three years. Her commitment was in April of the year 1911, and she made this application in August of the year 1912. She might have made it, if I understand the position of counsel, at any time after commitment, and as many times within the three years and is as many different districts as she could induce judges to grant her a writ. The defendant had not pronounced her cured, nor did he believe it safe to discharge her at the time this proceeding was commenced. The governing law in the case is found in Secs. 2310-al to 2310-a32, inclusive, Code Sup., 1907, relating to the detention and treatment of dipsomaniacs, inebriates and those addicted to the excessive use of narcotics. From thesp we extract the following:
“Sec. 2310-al. That the board of control is hereby directed to provide for the detention and treatment of dipsomaniacs, inebriates and persons addicted to the excessive use of morphine or other narcotics, in one or more of the hospitals for the insane at the discretion of said board. Said department thus provided for to be designated as a hospital for inebriates.
*210"Sec. 2310-a2. That all dipsomaniacs, inebriates and persons addicted to the excessive use of morphine or other narcotics, who shall be citizens of the state of Iowa and residents of the county from which they might be committed to the hospital for inebriates may be brought before the district court or judge of the county where they reside for examination and commitment to said hospital for inebriates. Their examination, trial and commitment shall be governed by the same statutes as now apply to and govern the examination and commitment of incorrigibles to the state industrial school. If it shall be determined by said district court or judge, that such person is addicted to dipsomania, inebriety or to the excessive use of narcotics, he or she shall be committed to such hospital for inebriates, as may be established by the board of control as above provided for. The term of detention and treatment shall be, for the first commitment not less than one, nor more than three years; and for the second commitment not less than two nor more than five years. The governor shall parole a patient on conditions named in the following section.
"Sec. 2310-a3. If after thirty days of such treatment and detention a patient shall appear to be cured, and if the physician in charge and the superintendent of said institution shall so recommend, the governor shall parole said patient, provided that said patient shall pledge himself or herself to refrain from the use of all intoxicating liquors as a beverage, or other narcotics, during the remaining part of his or her term of commitment, and shall avoid the frequenting of places and the association of people tending to lead them back to their old habits of inebriety. And shall send the following report on the first day of every month during term of parole to the governor, which report must be inquired into and approved as correct by the clerk of the district court of the county wherein the patient resides, and said patient shall furnish the clerk of the district court with satisfactory evidence of his sobriety and good habits.
*211“Beport of - to superintendent of hospital for inebriates at-Iowa.
“I, -being on parole from the hospital for inebriates at-Iowa, do-hereby certify that I have up to this date, being the first day of -, 19 — , refrained from the use of all intoxicating liquors as a beverage, and all narcotics of any kind whatsoever, except it be a moderate use of tobacco.
“I have carefully inquired into the record of --— as named above and do hereby certify that I believe the statements contained in his above report are true.
“Clerk district court of Iowa in and for-county, Iowa.
“Dated this-day of-, 19 — .
“And if at any time the patient on parole, for any reason fails to make the above report, the sheriff of the county wherein such patient resides shall without further writ or warrant, return said patient at once to the hospital from which he or she has been paroled on receiving notice of such failure from the clerk of the district court of the county wherein the patient resides, or any three reputable citizens thereof. And the patient so returned shall be detained and treated during the full term of his commitment.
“Sec. 2310-a4. That all statutes of the state providing for the trial, commitment, detention and treatment of incorrigibles sent to industrial schools shall be applicable to trial, detention and treatment of all patients committed under the provisions of this act, except in so far as they may be modified by the provisions of this act.
“Sec. 2310-al2. On-presentation of the application provided for in section six hereof, unless made in person by an inebriate, dipsomaniac, or user to excess of narcotic drugs, the judge shall issue an order, which may be served by any peace *212officer, directing him to bring the accused person before him for examination, and on his appearance, unless he demands a formal trial, the judge shall hear any evidence which may be adduced touching the accusation. The accused may be represented by counsel and the judge may, if he deems it necessary, require the county attorney of the county where the hearing is had to attend and assist in such hearing. In case said application be voluntarily or involuntarily made and the said judge shall determine that the accused is a proper person to be committed to said hospital, he shall make an order committing him thereto; otherwise he shall be discharged. The term of detention and treatment bhall be until the patient is cured and not exceeding three years. Provided that before a person shall be committed to a, state hospital for inebriates satisfactory evidence shall be submitted to the trial court or judge showing that the person committed is not of bad repute or of bad character apart from his or her habit for which the commitment is made and that there is reasonable ground for believing that the person if committed will be cured of such habit, and provided further, that the board of control of state institutions may discharge any person committed to a state hospital under the provisions of this act on the recommendation of the superintendent when satisfied that such person will not receive substantial benefit from further hospital treatment.
“Sec. 2310-al9. Any patient whom the superintendent believes to be cured may be paroled, conditioned on said patient’s signing a written pledge agreeing to refrain from the use of all intoxicating liquors as a beverage, and from the use of morphine and cocaine or other narcotic drugs during the term of his commitment, and shall avoid frequenting places and the association of people tending to lead him back to his old habits of inebriety. And said paroled patient must make written reports to the superintendent of said hospital at the beginning of each month on blanks to be furnished the clerk of the district court for that purpose, to the effect that he has not during the month past in any respect violated any *213of the terms and conditions of his parole, which reports must be investigated and approved by the clerk of the district court of the county in which the patient resides, who may demand from said paroled patient satisfactory evidence as to the truth of the statement. If, at any time, a patient on parole shall fail to make said report, or shall fail in any respect to fulfill all of thé conditions upon which said parole wTas granted, he may without any further proceeding whatever and on the written order of the superintendent of said hospital be taken and returned to the hospital, there to be detained and treated as provided herein. Said patient so violating his parole may be returned by any peace officer, or by any officer or person whom the superintendent of the hospital may direct so to do.
“See. 2310-a22. Females who are dipsomaniacs, inebriates or addicted to the excessive use of morphine, cocaine, or other narcotic drugs, may be committed to a state hospital for the insane to be designated by the board of control, for treatment, and all the provisions of this act, so far as applicable and except as modified by this section, shall apply in such cases and also to the eases of such females as may remain in the hospital for inebriates connected with any state hospital. ’ ’
There is some confusion and apparent conflict in these provisions, but it is apparent from the original acts that Secs. 2310-a6 to 2310-a31, inclusive, save See. 2310-a22, have reference to male inebriates; while Secs. 2310-al to 2310-a5, inclusive, have reference to all inebriates, whether male or female, and the latter are either repealed or amended by the special statutes above referred to, applying to male inebriates only. It is a little difficult to harmonize Secs. 2310-a2, 2310-a3 and 2310-a4, and 2310-al2 and 2310-a22, relating to the manner of trial and term of commitment. As to females, the term is until the patient is cured, and not exceeding three years, and the parole provision as to males appears in Sec. 2310-al9.
As I understand it, the provisions of Sees. 2310-al to 2310-a4 have reference to proceedings against females; the term *214of commitment and conditions for parole. On no other theory may they be harmonized. The males are kept together at the institution at Knoxville, and the females are sent to one or all of the state hospitals for the insane. Females are proceeded against as if they were ineorrigibles, or perhaps as males, by reason of Ch. 185, Acts Thirty-fifth General Assembly, and the term of commitment is not less than one, nor more than three years. Provision is made as to the parole of both males and females, and Sec. 2310-a3 relates to females, while Sec. 2310-al9 relates to males; unless perhaps, in view of Secs. 2310-al9, 2310-a22 and 2310-a27, the terms and conditions for parole should now be held to be the same whether the patient be male or female.
While there may be some doubt about this being the true construction of the written laws upon the subject, it being our duty to harmonize them if possible, this opinion is not wholly based upon this construction. If I am right, the ease is easy of solution. The trial court on the original hearing should have committed the plaintiff for a definite time, to wit, not less than one or more than three years, and the effect of its sentence was to commit the plaintiff for three years. But the statute we have already quoted makes provisions for a parole after thirty days upon recommendation of the physician and superintendent in charge. This is to be given if, to the officers charged with such duty, the patient should appear to be cured, and then only upon certain pledges being made by the patient, etc. Provision is also made for the return of the patient in case of a violation of the pledge or of. any of the statutory conditions.
If this be the law, then it is perfectly manifest that plaintiff in this case was not entitled to her discharge, and that the trial judge had no authority to release the plaintiff or to relieve her from her pledge or the statutory conditions. If he had this power, then he had power to abrogate statutory provisions without any authority.. These provisions were wise ones, made for the benefit, not only of the patient, but also *215of the general public. This “ticket of leave” could only be granted upon recommendation of the physician and superintendent, and the conditions imposed were due to the known fact that the drug habit is difficult to cure, and the victim uncertain, even though apparently cured.
No court should assume to exercise this power for the physician and the superintendent, and even if it could, it should demand the pledge required of the patient as a condition to her release. Any other rule would entirely destroy the efficacy of the parole system. There is no claim that the superintendent acted fraudulently or corruptly, or that he refused to grant a parole under proper conditions, and we do not have these facts to consider, even if they might, under any circumstances, be taken into account.
But assuming that Secs. 2310-a2, 2310-a3 and 2310-a4 have been repealed m toto, both as to males and females, and that the matter is governed by Secs. 2310-all, 2310-al2, 2310-al3 and 2310-al9, the commitment is until the patient is cured and not exceeding three years; and there is a provision for a parole at any time when the superintendent believes the patient to be cured, upon certain conditions and pledges. Of course, the superintendent’s belief as to cure is the equivalent, in his mind, to “cured”; and the law guards both the patient and the public by providing that, if the patient is released as cured before the expiration of the three years, it must be on certain pledges and conditions. The term is three years; but if the patient is believed by the superintendent to be cured, he or she may be released short of that time upon certain conditions. Whether or not the patient is cured at any given time is a mere question of belief at most. Proof of absolute cure cannot be made. It is not within the power of the human mind to know whether or not one is cured of a given habit until it has been proved by conduct; hence any distinction between an actual cure and belief as to a cure is too refined for discussion. Indeed, there is and can be no difference upon this proposition. The point to it is that the *216belief as to a cure must be that of a particular individual, to wit, tbe superintendent of the hospital. None olher may substitute himself and grant the parole.
The most that can be said for the conclusions of the trial court in this ease is that he believed the plaintiff to be cured; but he released her without requiring any pledges or exacting any reports; and no matter how soon she may resume her old habits, there is no way of getting her back to put in her full time of three years, except by another independent hearing upon the matter. Surely, even if the case should be determined under‘the provisions of the law relating to the hospital at Knoxville, there- was no justification for releasing plaintiff on the belief of the trial judge that she was cured. Any other construction would involve the superintendents in constant litigation; for a patient not desiring to take the pledge or to comply with the provisions of the law could at any time hale the superintendent into court and have the trial judge determine the question as to an apparent cure, and if he believed there was a cure, he would be bound to release the patient, without exacting any pledge, and unconditionally.
If counsel are right in their view, then the provisions as to parole are absolutely nugatory. The physician and superintendent in charge have the best means for knowing whether or not the patient appears to be cured, and it must be assumed that they will act upon this knowledge, and if they believe there has been such cure, they may release short of the full time, and when this is done, a pledge is exacted from the patient, and certain other requirements made. On the other hand, if their judgment is not controlling (in the absence of fraud or want of good faith), then the parole system provided for in this law is worthless; and instead of taking the judgment of experts, the trial court exercises its belief and gives an absolute discharge without any conditions, and this it may do without any limitation whatever as to time. I do not think this is a correct exposition of the law.
*217It is the judgment of the special tribunal which justifies the discharge, and neither courts nor judges are given power by statute to review that judgment or belief. Counsel quote a provision of law relating to the discharge of insane persons, which does not either expressly or by implication relate to inebriates, dipsomaniacs, or those given to the use of drugs. It relates expressly to insane persons. As to these, there is a complete system of its own. No constitutional right of plaintiff is infringed by the construction we place upon the law. It is somewhat akin to the indeterminate sentence law, which has been sustained by this court, and no court has ever suggested that the parole system, or “ticket of leave plan,” violates any constitutional limitation. The indeterminate system is based upon the thought that the prisoner has reformed and that it is safe to turn him loose upon society again; but no one can determine that fact except the board created for that purpose. The commitment of inebriates, male or female, is in effect indeterminate, save that it cannot exceed a certain number of years, and at the expiration of that time, the patient must be released whether cured or not; before that time, it is left to the physician and superintendent (or superintendent alone) to say when they think a cure has been effected, and to release upon certain pledges and conditions. If it should appear that they were wrong in their judgment, or the patient puts herself in the way of temptation or resumes her old habits, or violates any of the conditions under which she has been released, she may be returned to the hospital and made to stay until it appears safe to discharge her, and in any event the maximum term is fixed.
Counsel make too much of the supposed distinction between absolute cure and apparent cure; there is and can be no difference, so far as this proceeding is concerned. If one committed as an inebriate or dipsomaniac may at any time have the question of her cure, or apparent cure, submitted to a district court or judge upon testimony from experts and non-experts, and said court may, if it believes the patient *218cured, absolutely discharge her, what becomes of the parole feature of the law? As already intimated, the trial court or judge cannot pronounce absolute cure; at best, the cure is only apparent, and a release made by a court must be final and without power of revocation or recall. The superintendent cannot release on parole short of the three years unless there is an apparent cure. If there is an apparent cure, must the superintendent give a full release, or may he give ¿ full release in one case and a conditional one only in another? If the latter be the case, then how is he to distinguish between a cure and an apparent cure ? If the superintendent has difficulty here, it would seem, according to the argument for appellee, that the district court or judge could have none; and if the court should find that the cure was only apparent, he should remand the applicant to the custody of the superintendent again. "Would such a finding be in any way binding on the superintendent, and would he be obliged, because of the finding of the trial court or judge, to grant the applicant a parole ?
If the court had jurisdiction to make the finding, its judgment is conclusive on the superintendent and a release on parole would be inevitable, no matter what the superintendent might think of the ease. What would become of the statute with reference to parole, if this proposition should be affirmed? Again, suppose the court or judge should find, contrary to the conclusion of the superintendent, that the patient was either actually or apparently cured; and it should turn out within a few days that the apparent cure was a mistake. What could be done to rectify the mistake? Appellee’s counsel say, “nothing”; that this is one of the incidents of all trials. It is apparent that the law in question was enacted to prevent just such mistakes. If not, then the entire scheme is a failure. Unless there is a further fixed time to serve, there can be no parole, and if there can be no parole when a patient is cured or apparently cured, but only an absolute release, then there is no parole but an absolute *219release; so that the legislature made a mistake when it said that dipsomaniacs might be .released on parole on certain conditions and upon pledges being exacted.
There is nothing unusual in the “ticket of leave” and parole plans. They are regarded as essential to a humane administration of the law which authorizes the detention of a person accused of crime, or given over to some disease which makes him a fit subject for confinement. Reformation is much the most important element in all our prison and detention schemes, and it is to be regretted if all systems leading to that end must be abandoned, and the matter of release given over to courts and judges alone. Such has never been the thought heretofore, and no good end can be accomplished by wiping out the parole features of this dipsomaniac law. No claim is made in the petition filed for plaintiff in this case that her sentence was not in accord with the law; hence any discussion on that subject is wide of the mark. There is no statute which, in express terms or by necessary implication, gives a dipsomaniac or inebriate the right to disregard the parole law and go directly to the district court or a judge thereof for a release, because he or she believes he is cured; and this is especially true where the patient never asks the superintendent to act or to discharge her on parole or otherwise. And if, as already suggested, such a patient does not have to go to the superintendent for a discharge, either on parole or otherwise, then the parole features of this law are absolutely repealed by judicial interpretation. And. in the future, the superintendent, instead of using his judgment as to a cure, must go into court, no matter whether he has been asked for a release or not, and justify his detention of the prisoner. And although he may protest that he does not believe him cured and has better means for knowing that fact than any other person, he must, if the trial judge thinks there has been a cure, absolutely discharge the prisoner.
The difficulties growing out of such a situation may well be apprehended and discipline in the institutions will be im*220possible. Patients committed for these habits are sound in mind and generally have friends always ready to help, and" these friends (?) will doubtless make it very unpleasant for the officials of these institutions in the future, if appellee’s contention be adopted. The fact that a writ of habeas corpus may be used to release one from custody does not assist the plaintiff at all. Habeas corpus is a remedy to establish rights. If the applicant is not entitled to his absolute release, he is not entitled to this remedy. The question here is not whether habeas corpus will lie, but whether, under the statutes construed as a whole, defendant is wrongfully restraining applicant of her liberty — whether she is entitled to an unconditional release.
The statute is not silent as to who shall determine whether there has been a cure short of the three years, unless we do as appellee suggests: wipe out the parole features of the law. If it does not give the superintendent power to do so, then of course the only remedy is by action in court by habeas corpus. For, without authority in the superintendent to discharge short of three years, there is no power anywhere, save in the courts, and any patient seeking to be discharged within the three years must bring an action in the district court or before a judge to secure a discharge, even if it be conceded on all hands that there is a cure or an apparent cure within a year or so. No one has supposed heretofore that this was the case, and a great burden has been added to those already imposed upon the courts if they must noiy administer hospitals and inebriate asylums; for, according to the argument for the appellee, no one but a court or judge may discharge an inebriate or dipsomaniac, no matter how firm the belief as to cure. The superintendent of the hospital cannot do so, and neither may the board of control. If the legislature makes any distinction between cure and apparent cure, as applied to the administration of the law now before us, it is not apparent. There is no statute providing for an absolute dis*221charge short of the full term without a parole, as .appellee’s counsel intimate.
I think the trial court erred in discharging the plaintiff.
I am authorized to say that Preston, J., concurs in this dissent in both divisions, and Ladd, J., in the second division thereof, but not in the first, concurring with the majority upon this latter proposition.