I dissent.
It should be borne in mind that this is not a proceeding to restrain the superior court from passing upon the application for a writ of habeas corpus. That application had in *604fact been passed upon and the writ had issued before the present proceeding was commenced. The main opinion states that the writ had issued, but much of it proceeds on the theory that it .had not, and consequently that the respondents in that proceeding need not be put to their proof in justification of the alleged unlawful restraint. The concurring opinion definitely proceeds on the mistaken assumption of fact that the writ had not been issued. That the petition for the writ of habeas corpus stated a prima facie case when it was presented to the respondent court cannot be denied. That it did not purport to demand a release of the ward from the custody of the guardian was fairly disclosed on the face of the petition and was also freely conceded by counsel for the petitioner on oral argument herein. The obvious purpose of the habeas corpus proceeding was and is to have the respondent court define the rights of the ward under the facts to be disclosed at the hearing on the return to the writ. How the concession of counsel for the petitioner as to the limited purpose of his application would constitute “an abandonment of the only proper ground upon which the writ could issue” is beyond my comprehension. To so declare is to deny the right to resort to habeas corpus to define rights and obtain relief less than complete discharge.
The matter before the respondent court which has been stopped by this court was a hearing on the issues framed by the allegations of the petition for the writ of habeas corpus and the return thereto. The majority has proceeded to decide the merits of that controversy in a proceeding in prohibition. It cannot be assumed, as the majority seem to do, that the respondent court will disregard the showing on the return to the writ of habeas corpus and arbitrarily decide the matter before it contrary to the law and the facts there presented. It is certain that issues of both law and fact would be presented to that court on the hearing. Those issues were raised by the petition for the writ of habeas corpus wherein it was alleged that on or about the 23rd of April, 1934, the Superior Court of the State of California, in and for the County of Santa Barbara, made and entered an order appointing Belmore Browne as guardian of the person and estate of the petitioner, an alleged • incompetent person; and that Belmore Browne has since been and still is acting as such guardian; that the applicant Ella H. Browne is now and for several years last past has been unlawfully *605and improperly restrained of her liberty and confined and detained at the Greer Home, located at No. 6000 Fulton street, in San Francisco, by said guardian and certain named persons acting in concert with and at the direction of said guardian; that the restraint of applicant’s liberty and the confinement and detention of her person by said persons are unlawful, and in that respect alleges as follows: (1) That while of advanced years, she is not and never has been insane or mentally unsound, is a person of high cultural background, refinement and education, and possesses mental capacity to fully comprehend and distinguish her environment and residences which she has voluntarily chosen and which afford her happiness and contentment; (2) that for more than twenty years before the appointment of said guardian the applicant maintained her home in Santa Barbara, "where she now owns a residential dwelling, where she has friends of long standing whose company and association she enjoys and desires; (3) that since his appointment as guardian, said Belmore Browne, on or about October 18, 1936, removed her from Santa Barbara to San Francisco and placed her in said Greer Home, where she has since been continuously confined, detained and restrained of her liberty, against her wishes and without her consent and in utter disregard of her entreaties to be returned to Santa Barbara; that by reason of her guardian’s disregard of her wishes to be so returned, she continues to remain homesick, unhappy, discontented and distressed; (4) that the estate of the applicant is amply sufficient to meet all expenses incident to her return to Santa Barbara and her proper care and maintenance in that city during the remainder of her life; (5) that reputable physicians and psychiatrists have examined the applicant and have advised that she can make the journey to Santa Barbara without danger or harm to her health or physical well being and that the change will be of extreme benefit to her; (6) that in refusing to effect applicant’s return to Santa Barbara and in causing her to be detained, confined and restrained of her liberty at the Greer Home in San Francisco, her guardian is acting arbitrarily, improperly, unreasonably and unlawfully and in abuse of the spirit and intent of the powers conferred upon him as such guardian, and without any respect, regard or consideration for the welfare, comfort and happiness of the applicant; (7) that without just cause the guardian and those acting *606in concert with him have accomplished strict and complete censorship of all the correspondence to and from the applicant, including her letters to her son John W. Browne and his letters to her, and do likewise interfere with and violate confidential and personal communications passing between applicant and her attorney herein; (8) that her guardian, with the aid and assistance of those acting in concert with him, and without just cause, has refused to allow applicant to be visited by her friends of long standing, notwithstanding the fact that such visits would have brought much happiness to the applicant and could in nowise be detrimental to her health and well being, and has refused to allow petitioner, her attorney, to visit with her and discuss with her matters conceming her personal affairs, her confinement and restraint of her liberty.
The petitioner prayed that the court issue the writ of habeas corpus directing the persons named, having her in custody, “to have the body of said Ella H. Browne thus confined and detained and restrained of her liberty, as aforesaid, before said court, at a certain time and place therein to be specified, to do and receive what shall then and there be considered concerning said Ella IT. Browne together with the time and cause of her detention and restraint, and said writ; and that said Ella TI. Browne be relieved of and from such detention, confinement and restraint and for such other and further relief as she ought to have”.
Upon the filing of the aforesaid petition the respondent court issued a writ of habeas corpus returnable at a specified time and place. As a return to the writ the respondents in said proceeding filed a demurrer to the petition and also an answer, in which it was denied that the applicant was unlawfully restrained of her liberty and in which it was alleged that the matters sought to be adjudicated in the habeas corpus proceeding in the Superior Court in and for the City and County of San Francisco had been presented to the Superior Court of Santa Barbara county and had “been adjudicated by said superior court, as more fully appears from the record of proceedings on file with said court”, which proceedings are described and referred to in said answer with certain exhibits attached.
When the matter came on for hearing before the respondent court on the return to the writ, the guardian interposed *607an objection to the court’s proceeding further to hear and determine the matter on the ground that said court was without jurisdiction in the premises for the reason that the Superior Court in and for the County of Santa Barbara "has acquired and is exercising jurisdiction in all things and matters pertaining to the guardianship of the person and estate of Ella H. Browne, an incompetent person”, and that all such matters should be addressed to the court in Santa Barbara county.
The respondent court overruled the objection and the present proceeding was brought to prohibit that court from further hearing or making any determination in the habeas corpus proceeding.
The conceded purpose of the habeas corpus proceeding is (1) to test the right of the guardian to confine the ward in the Greer Home in San Francisco under the circumstances alleged; (2) to test the right of those having custody of the ward to censor her mail and deprive her of the privilege of having her friends visit her; and (3) to test the right of the guardian and those acting for him to prevent the ward from consulting with her attorney.
As to the liberties enumerated and sought to be protected, it must be said that the petition states a prima facie case in favor of the issuance of the writ. "The office of the writ is to afford the citizen a speedy and effective method of securing the removal of any unlawful restraint upon his liberty; and the statute which confers the right has always been construed in favor of the liberty of the citizen.” (In re Rider, 50 Cal. App. 797 [195 Pac. 965].) The guardian does not have unlimited power over the ward, even though the ward be an incompetent person. (State ex rel. Raymond v. Lawrence, 86 Minn. 310 [90 N. W. 769, 58 L. R. A. 931].) It was held in that case that where an attempt is made by a guardian of an incompetent to exercise any restraint over the person of the ward, "the writ of habeas corpus . . . will always be effectual to inquire into the propriety of any such attempted restraint”. On the same subject and commenting on that case and authorities to like effect, the author of the article on Habeas Corpus in 25 American Jurisprudence, at page 209, says: "An attempt made by the guardian of the person of an incompetent to exercise any unauthorized restraint over such person can be frustrated by a writ of habeas corpus, but *608the relief which may be granted under such a writ does not include an order removing the guardian and depriving him of all authority over the person of the incompetent; such an order can be made only in the guardianship proceeding.”
It needs no citation of authority to support the assertion that the right of the ward to dispatch and receive her mail is prima facie one of the liberties which may be protected from unlawful interference. Her right to consult with an attorney concerning her alleged unlawful restraint would likewise appear prima facie to be subject to such protection. There is nothing on the face of the petition which would deprive the applicant of the right to apply for the writ and the prima facie showing therein made was sufficient to warrant the issuance thereof.
It may well be that upon a hearing on the return to the writ full and complete justification for the alleged unlawful restraint would be established by the records of the proceedings in the Santa Barbara court. The record of those proceedings, brought before the court as a part of the return to the writ of habeas corpus, is defensive in character and might well operate in justification of the alleged unlawful restraint. Matters of justification do not go to the jurisdiction of the respondent court to consider the issues presented by the return to the writ.
The respondent court should be permitted to hear and determine the habeas corpus proceeding: First, because the right to resort to habeas corpus as against unlawful restraint of personal liberty or freedom of action is firmly grounded in the law, both constitutional and statutory. The essential object and purpose of the writ are to inquire into all manner of involuntary restraints. This writ has long been regarded as the greatest remedy known to the law whereby one unlawfully restrained of his liberty may secure release or have his civil rights defined. Its origin is obscured in antiquity. It antedated Magna Oharta, and the right to resort to it is universally recognized in English and American law. The Constitution of the United States (art. I, see. 9) provides: ‘‘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 it.” Article I, section 5, of our state Constitution, makes the same provision. Although these constitutional mandates are generally directed to the legislature or *609executive departments, or both (25 Am. Jur., p. 149) the protection of the fundamental right there declared has been enjoined on the court. In this state, section 1473 of the Penal Code provides: “Every person unlawfully imprisoned or restrained of his liberty, under any pretense whatever, may prosecute a writ of habeas corpus, to enquire into the cause of such imprisonment or restraint." Under that and the succeeding sections of the same code, any person deeming himself unlawfully restrained of his liberty has the right to apply to a court of competent jurisdiction for the issuance of the writ and to have a ruling thereon. The ruling may be in the form of an order denying the writ for failure to state facts justifying its issuance. Having issued it, as here, the question then is whether the return thereto shows lawful justification for the restraint, and the petitioner is just as much entitled to have the court rule upon the sufficiency or insufficiency of the return as he is to have a ruling on his application for the issuance of the writ.
Secondly, the superior court has constitutional jurisdiction to issue the writ of habeas corpus (art. VI, see. 5). The consideration of and ruling on the petition for the writ is ordinarily ex parte. “After a return to a writ, the court or judge to whom the return is made must pass upon all questions of both law and fact and determine the ultimate questions whether the prisoner is wrongfully restrained of his liberty. It is necessary for the court to determine the weight and credibility of the evidence where the testimony is conflicting." (25 Am. Jur., p. 245, and authorities there cited.) When the applicant is rightfully in custody the hearing on the return may disclose a partial unlawful restraint, or no unlawful restraint at all. In the pending habeas corpus proceeding the respondent court may conclude that the alleged illegal restraints are justified by reason of prior adjudications in Santa Barbara county, or are justified by reason of the present mental and physical condition of the applicant. These questions should be determined by the respondent court in its consideration of the issues raised on the return to the writ, and its constitutional and statutory power so to do should not be interfered with in the present proceeding.
Marks, J., pro tem., concurred.
Rehearing denied. Shenk, J., voted for a rehearing.