I dissent.
I cannot agree that the privilege of the writ of habeas corpus may be denied to a person solely because he has been convicted of crime, sentenced to death, adjudged insane, and *852committed to a state hospital; nor can I agree that the powers vested in the warden of a state prison or in the medical superintendent of a state hospital for the insane transcend and abrogate the powers of the courts to entertain proceedings on habeas corpus. It is indisputable, I think, that the powers of the courts on habeas corpus proceedings are substantially abrogated in eases of this type by the holding of the majority opinion that the factual determination of an administrative agent is absolutely conclusive on the courts in such proceedings.
The real issue here is not what is stated in the majority opinion. It really is more simple and much more grave. On behalf of the prisoner it is alleged in material part “That on the 24th day of December, 1946, after a jury trial in the Superior Court . . . William Jerome Phyle [the prisoner] was adjudged insane, and said Superior Court committed said . . . Phyle to the State Hospital at Talmadge, to be held there as an insane person, and there kept in a state of confinement until his reason be restored. [Italics added.]
“That thereafter, said William Jerome Phyle remained in the Mendocino State Hospital at Talmadge, California, until January 18, 1947, at which time the Superintendent of the Mendocino State Hospital presented to the Governor his certificate that the said William Jerome Phyle had recovered his reason, whereas said Phyle was, and still is, insane. [Italics added.]
“That thereafter, the Governor of the State of California issued to the Warden [of the state prison] the Governor’s warrant, appointing the 2nd day of May, 1947 for the execution by means of lethal gas of William Jerome Phyle. . . .
“That unless this Court restrains Clinton T. Duffy [the warden of the state prison] from carrying out the warrant of the Governor, that said . . . Phyle will be executed on Friday, the 2nd day of May, 1947.”
According to the return to the writ, the prisoner had been sentenced to death; thereafter upon proper legal proceedings under chapter 2, article 3, part 3 of the Penal Code, a jury found he was insane and the superior court on December 24,1946, ordered that he be confined in a state hospital “until his reason be restored”; the superintendent of such hospital on January 18, 1947, certified to the governor that he was sane; the governor made his warrant of execution; and the *853warden holds the prisoner pursuant to such sentence and warrant.
The controlling facts shown by the petition and return are that the prisoner was duly adjudged insane and committed by judgment of the superior court to be confined in a state hospital “until his reason be restored”; that his reason has not in fact been restored (that he “was, and still is, insane”) but that, notwithstanding the judgment and his continuing insanity he has been released from the state hospital and the custody of its superintendent and transferred to the state prison and custody of the warden and will be executed while insane unless this court intervenes. It is most important to note that the vital allegation that the prisoner “was, and still is, insane,” is not challenged in the return and must be deemed admitted. The majority opinion necessarily holds that this fact, or at least the allegation of it, is wholly immaterial because .the superintendent of the hospital has presumptively determined and has certified that the prisoner has recovered his reason; such determination and certification, the majority hold, are conclusive on the prisoner and on this court; hence habeas corpus will be denied. Obviously, the determination of the majority does not rest upon any inquiry or determination by the court as to the fact of sanity or insanity of the prisoner; it rests squarely on the holding that the administrative agent has sole and uncontrolled authority to determine and certify the fact of sanity or insanity and that such fact, when so certified, cannot be disputed by the prisoner or inquired into by the court. This, clearly, is abrogation of the rights and powers of habeas corpus in such a case.
Contrary to the implications of the majority opinion (the order reads, “The writ is discharged, and William Phyle is remanded to custody” [italics added]), the petition does not seek release of the prisoner; as appears on its face and as is hereinafter shown in detail, it seeks only to have him transferred in custody from an unlawful to a lawful custodian; he., from the custody of the warden of the prison to the custody of the superintendent of the state hospital. As is also more particularly shown hereinafter, upon the unchallenged facts alleged, the superintendent of the hospital is the sole lawful custodian of the prisoner.
*854The relief sought may be granted on petition for habeas corpus. Section 1493 of the Penal Code provides that “In cases where any party is held under illegal restraint or custody, or any other person is entitled to the restraint or custody of such party, the judge or court may order such party to be committed to the restraint or custody of such person as is by law entitled thereto.” (Italics added.) Section 1487 of the same code provides that “If it appears on the return of the writ that the prisoner is in custody by virtue of process from any court of this state, or judge or officer thereof, such prisoner may be discharged [or remanded to proper custody as provided by section 1486] . . . 5. When the person having the custody of the prisoner is not the person allowed by law to detain him.” As previously set forth, the petition alleges facts which indubitably entitle the prisoner to the relief sought if the facts be true. Such facts are that the prisoner has been convicted of crime and sentenced to death; that after such conviction he was duly adjudged insane and committed to the state hospital “to be there confined until his reason be restored”; that he “was, and still is, insane”; that notwithstanding the actual continuance of his insanity the superintendent of the hospital has certified that he is sane and he has been transferred from the custody of the hospital superintendent to the custody of the prison warden and that he will be executed by the prison warden unless this court restrains such action.
From what has been above related it appears that the basic issue here is, is the asserted determination of the medical superintendent that the prisoner is now sane conclusive on the court and on the prisoner in a habeas corpus proceeding wherein it is alleged that the prisoner is in fact insane? In other words, does certification of sanity by the state hospital superintendent preclude the prisoner from alleging and proving and the court from determining that, contrary to the certification, the prisoner is in truth insane ? If the answer to these questions is yes, as the majority hold, then the right of habeas corpus is effectively abrogated as to persons in the status of the prisoner before us.
The holding of the majority opinion that the medical superintendent has exclusive and transcendent powers to determine questions of sanity of prisoners is squarely contrary to earlier holdings of this court. In Gardner v. Jones (1899), 126 Cal. *855614 [59 P. 126], we find a case which in material legal principles is identical to that now before us. Dr. A. M. Gardner was then (1899) superintendent of the Napa State Hospital. He applied to this court “for a writ to prohibit defendant [judge of the superior court of Contra Costa county, and the superior court of Napa County] from entertaining jurisdiction in a certain habeas corpus case” whereby the Napa County Superior Court was assuming to determine the question of the restoration to sanity of one Buchanan, who had been committed to the state hospital as insane. This court said (pages 615-616 of 126 Cal.), “The question is an important one, inasmuch as it involves the right of an inmate of a state hospital, who happens at the time to be resting under a criminal charge and is committed pending trial for his crime, to have his alleged insanity made the subject of judicial inquiry by the writ of habeas corpus. It is claimed [exactly as here] that ‘the medical superintendent is the only person or tribunal vested by law with authority to determine whether or not an insane patient of this class has recovered.’ . . .
“The provisions of the Penal Code regulating the commitment of persons charged with crime are found in sections 1367 to 1373. No question arises as to the regularity of Buchanan’s commitment under these provisions. Section 1372 provides as follows: ‘If the defendant is received into the asylum, he must be detained there until he becomes sane. When he becomes sane, the superintendent must give notice of that fact to the sheriff and district attorney of the county. The sheriff must thereupon, without delay, bring the defendant from the asylum and place him in proper custody until he is brought to trial or judgment, as the case may be, or is legally discharged.’
“Section 1473 of the Penal Code provides as follows: ‘Every person unlawfully imprisoned or restrained of his liberty, under any pretense whatever, may prosecute a writ of habeas corpus to inquire into the cause of such imprisonment or restraint.’
“Section 5, article I, of the constitution reads: ‘The privilege of the writ of habeas corpus shall not be suspended unless when, in cases of rebellion or invasion, the public safety may require its suspension.’
*856“We find in the statute no authority for making two classes of insane—one civil and the other criminal—and by any such classification to take the latter out of the operation of the statute as to the right of habeas corpus. Section 13, article III, of the insanity law makes no such distinction. But plaintiff contends that section 14 of article III in terms confers authority upon the medical superintendent to determine when the patient of the criminal class is restored to sanity, and, as the authority is not conferred upon any other person or tribunal, it is necessarily exclusive, and also proves that the law recognizes the two mentioned classes of insane. We cannot believe that the legislature intended to enact a law so entirely out of harmony with the spirit and letter of the constitution and the statute to which attention has been called. It is our duty to harmonize sections 13 and 14, article III, of the insanity law, so as to conform to the constitution and to the statutes quoted, if we can, rather than resort to the more extreme necessity of holding section 14 to be unconstitutional, as defendant claims it to be, if given the construction placed upon it by plaintiff. We think it was intended by section 14 to provide means by which a patient of Buchanan’s class, whose reason has become restored, could be at once remanded to the sheriff of the proper county for trial; but it was not intended that the arbitrary power should rest with the medical superintendent to deprive the patient of the right to be so returned, nor was it intended that the medical superintendent should be the exclusive judge of the patient’s restoration. [Italics added.] . . .
“ [P. 618.] The question of Buchanan’s recovery, in our opinion, is jurisdictional and may be examined upon habeas corpus. . . .
“ [P. 619.] Section 1493 [Pen. Code] provides: ‘In cases where any party is held under illegal restraint or custody, or any other person is entitled to the restraint or custody of such party, the judge or court may order such party to be committed to the restraint or custody of such person as is by law entitled thereto.’ In his petition Buchanan does not ask to be restored to his freedom; he asks to be redelivered to the sheriff of Yuba county. . . . We see no reason why the court or judge should not have the power by an order to direct that Buchanan be redelivered to the sheriff as prayed for. . . .”
*857In accord with the reasoning above quoted the application of the medical superintendent for the writ of prohibition was denied and thereafter in the habeas corpus proceeding the superior court proceeded to determine the issue as to the defendant's restoration to sanity. It determined that the defendant-petitioner was still insane and remanded him to the custody of Dr. Gardner. Thereupon application for habeas corpus was made to this court. Chief Justice Beatty, authoring the opinion of the court, again referred to Dr. Gardner’s claim of exclusive jurisdiction, as asserted in his application for prohibition, and declared (In re Buchanan (1900), 129 Cal. 330, 332-333 [61 P. 1120, 50 A.L.R. 378]), “It was there [in Gardner v. Jones (1899), supra, 126 Cal. 614] contended that the insanity law of 1897 (Stats. 1897, p. 311) has made the superintendent of the asylum the sole and final judge, in a case of this kind, whether the prisoner has become sane, and that the courts no longer have the power to conduct the inquiry by habeas corpus, or otherwise. It was held against this contention that the question of unlawful restraint of the liberty of a citizen is, and must be as long as our present constitution endures, a judicial question to be determined by the courts, and that the statute referred to would be unconstitutional if it required the construction contended for. [Italics added.] . . . In consequence of this decision the superior judge proceeded with the hearing upon return to the writ of habeas corpus issued by him, and having concluded upon the evidence that Buchanan was still insane, made an order remanding him to the custody of Dr. Gardner. Thereupon the present proceeding was commenced in this court, and upon the same evidence submitted to the superior judge, and some additional testimony, we must now decide the question of fact whether Buchanan has become sane. [Italics added.]
“The question, however, is not whether he has become sane in every sense of the word, but whether he has become sane in the sense of the statute, which requires a suspension of the proceedings in a criminal cause whenever it is found that the defendant is presently insane. In other words, if there is a difference between the medical view of insanity and the view upon which the statute is founded, the question of sanity or insanity is to be determined with reference to *858the latter as contra-distinguished from the former view. That there is such a difference is notorious. . . .’’In the light of that difference the writ was sustained and Buchanan was ordered “returned to the custody of the sheriff of Tuba county.” (Here we have no way of knowing what standard of sanity or insanity the present superintendent of the state hospital applied in certifying that the prisoner is sane.)
Several vices in the majority opinion become apparent from what has been quoted from Gardner v. Jones (1899), supra, 126 Cal. 614, and from In re Buchanan (1900), supra, 129 Cal. 330. In the first place, the majority opinion unconstitutionally denies the protection of habeas corpus, at least as exemplified by a court trial of the issue of fact (if there be one under the pleadings in view of the failure to deny that the prisoner is presently insane) to this petitioner. Our state Constitution (art. I, § 5) declares that “The privilege of the writ of habeas corpus shall not be suspended unless when, in cases of rebellion or invasion, the public safety may require its suspension.” Section 9 (2) of article I of the United States Constitution makes the same provision. There is in this case no suggestion that there is extant any status of rebellion or invasion whereby to justify suspension of the writ in the public safety. But the majority opinion, in all practical effect, suspends it—even abrogates it altogether— insofar as concerns persons who have been convicted of crime, sentenced to death, and thereafter adjudged insane. If the prisoner’s insanity in fact continues, as is specifically alleged and not denied, the law and the judgment of the superior court require that he be continued in the state hospital until his sanity is restored. .As shown hereinabove, habeas corpus is a proper remedy. If we refuse him the relief sought, solely on the ground that the medical superintendent’s certificate of restoration is conclusive of the fact of sanity, we are necessarily abrogating our power in the premises—our power to determine the fact of insanity. And, furthermore, we are abrogating the right of the prisoner to even challenge, on habeas corpus, one of the facts upon which the legality of his custody and impending execution depends. That is certainly an abrogation of the right of habeas corpus. No authority is cited for holding that a person in the status of this prisoner may be deprived of the rights of habeas corpus.
*859It is important also to note that section 1367 of the Penal Code provides that “A person cannot be tried, adjudged to punishment, or punished for a public offense, while he is insane.” If this section means anything at all it should mean that it establishes a right which a convicted person, sane or insane, or one who speaks for him, may enforce in the courts. If the courts cannot enforce it, it is a poor right. If the right of habeas corpus is to be denied to such a person it should be by clear constitutional provision, not by court legislation.
It should be observed also that the State may eventually find that the majority holding here is unfortunate. If the statutes in question, as held by the majority, vest absolute, conclusive, and exclusive power in the superintendent of the state hospital “for the determination of the question of the sanity of a person who has been sentenced to death,” and if it be true, as is also held by the majority, that “a court has no inherent power to determine that question,” then, of course, the determination of the superintendent is equally final regardless of whether he determine that the prisoner is sane or insane. In some future case such a superintendent may rule that a prisoner remains insane although other state officers have reason to believe that such prisoner has recovered his sanity. Under the majority holding, the fact of recovered sanity would be wholly immaterial; an allegation to that effect, although not denied, would be totally disregarded. Neither the prisoner himself nor the prosecuting officers of the state would be heard to contend that in truth the prisoner had recovered his reason. Only the certificate of the superintendent, based on any standard of sanity (medical or legal) which he might elect to use, could determine that fact; his discretion in any event would be wholly uncontrolled and if he refused to give the certificate the courts of this state would be powerless to intervene.
The majority opinion devotes much space to a discussion of the duties and powers of the hospital superintendent and to those of the prison warden and suggests that the warden, if so disposed, can again initiate proceedings for another jury trial on the issue of the prisoner’s present sanity status. But such speculation is scarcely germane to the issue before us. The duties of the warden are one thing; our duties on habeas *860corpus are quite another. The petition alleges that “unless this Court restrains Clinton T. Duffy [the prison warden] from carrying out the warrant of the Governor, that said . . . [prisoner] will be executed on Friday, the 2nd day of May, 1947.” The fact that the writ prayed for originally issued and that in consequence the date of execution has been postponed until this cause is finally decided, does not .mean that the jeopardy of the prisoner is lessened. The allegation, coupled with the other averments above quoted, still unmistakably means that the prisoner, although presently insane, will be executed under the warrant which has been issued unless we rule otherwise. Whether that allegation be true, the majority hold, we will not inquire because we have no power in any event to prevent the execution. I cannot subscribe to such a doctrine.
Failure to espouse such doctrine does not mean that any statute in question is made meaningless. The provisions of Penal Code section 3704 that “When the defendant recovers his reason the superintendent of such [state] hospital must certify that fact to the Governor” and that the defendant may then be returned to prison and executed, like the provisions of section 1372, hereinabove cited and discussed in the quotation from the Gardner case, may be given effect and applied in all proper cases. Under the language of that section (§3704) it may well be that a superintendent of a state hospital has implied authority to make a prima facie determination that a prisoner has re: covered (or not recovered) his sanity and to certify him back to the warden of the state prison for execution. But this does not mean that the prisoner must be denied habeas corpus, or an examination and determination by the court upon habeas corpus, of the fact, if it be alleged, that the prisoner is in fact insane (or sane) although the superintendent may have determined and certified that he is sane (or insane).
The history of habeas corpus, the great care with which the rights of all persons to invoke that remedy have been guarded by provisions of our national and state constitutions and the jealous solicitude with which the courts have heretofore protected those rights, all combine to forbid the holding which the prosecuting officers of this State now espouse and which the majority make.
*861The State, if it requests such relief, should be given opportunity to challenge the now admitted averment that the prisoner “still is” insane; that issue should then be tried out before a referee; and our order should depend on our determination of the fact, not on subservience to an asserted “conclusive” determination of an administrative agent. Thus may the right of habeas corpus be preserved, the court maintain its jurisdiction, and justice still run its full course.
Carter, J., concurred.
Petitioner’s application for a rehearing was denied December 8, 1947. Carter, J., and Schauer, J., voted for a rehearing.