I concur in the judgment.
Petitioner contends that under the decision of the United States Supreme Court in Phyle v. Duffy, 334 U.S. 431 [68 S.Ct. 1131, 92 L.Ed. 1494], he is entitled to the judicial hearing that this court has denied him.
Neither that decision nor any provision of the United States Constitution gives petitioner the right to an initial judicial determination of his restoration to sanity or to a judicial review of an administrative determination thereof. The statutes of this state, as construed in In re Phyle, 30 Cal.2d 838 [186 P.2d 134], preclude both a judicial hearing and judicial review. This court there held that in Penal Code, sections 3700-3704, the Legislature has prescribed the exclusive method by which the sanity or the restoration to sanity of one condemned to death who subsequently becomes insane may be determined. Penal Code, section 3704, provides that “ [w]hen the defendant recovers his reason, the superintendent of such hospital must certify that fact to the Governor, who must thereupon issue to the warden his warrant appointing a day for the execution of the judgment. ...” The court held that the determination by the hospital superintendent prescribed by the statute was not subject to judicial review by habeas corpus or otherwise. It invoked the provision of Penal Code, section 3700, that “No judge, court, or.officer, other than the Governor, can suspend the execution of a judgment of death, except the warden of the State prison to whom he is delivered for execution . . . unless an appeal is taken.” Petitioner’s appeal had previously been determined (28 Cal.2d 671 [171 P.2d 428]) and his conviction had become final. A judicial review of the hospital superintendent’s determination would compel suspension of the execution of the judgment, contrary to the express terms of section 3700.
Gardner v. Jones, 126 Cal. 614 [59 P. 126], and In re Buchanan, 129 Cal. 330 [61 P. 1120, 50 L.R.A. 378], are not applicable here. Those cases determined that a person held in a state hospital as insane could properly bring habeas corpus to compel the superintendent to release him as cured; *155habeas corpus always lies at the petition of one unlawfully restrained of his liberty. (Pen. Code, § 1473.) They are not authority for the converse proposition that a person found sane and released from a hospital may maintain an action of habeas corpus to prove himself insane and thus gain readmission to the hospital. Petitioner was released from the state hospital because he was found sane. He would have gone free had he not been detained by respondent by virtue of a final judgment of a court of competent jurisdiction. (Pen. Code, § 1486[2].) He would have gone free had he not been convicted of murder, and there can be no doubt that he could not invoke habeas corpus to return to the hospital. He cannot invoke it now to escape the execution of the judgment. The intervention of the judgment has no bearing on the question of his sanity; it does not give him a right to habeas corpus to get back into the hospital that he otherwise would not have.
Petitioner contended that the California procedure as thus interpreted would deprive him of his life without due process of law, and on that ground he petitioned the United States Supreme Court for a writ of certiorari. The court granted the petition to determine whether there was any merit in this contention. (333 U.S. 841 [68 St.Ct. 656, 92 L.Ed. 1125].) In granting certiorari, the court did not decide, as petitioner concludes, that the Fourteenth Amendment would be violated by a conclusive administrative adjudication that his sanity had been restored. It agreed merely to consider the question, but found it unnecessary to decide it because of the deputy attorney general’s statement that under California procedure a judicial remedy was available to petitioner. Hr. Justice Black, speaking for the majority, stated: “It is not appropriate for us to pass on such constitutional questions in this habeas corpus case if . . . there is a state remedy by mandamus available to petitioner under which he can invoke judicial action to compel the warden to initiate judicial proceedings, and in which mandamus proceedings the court will hear and consider evidence to determine whether there is ‘reason to believe’ that the petitioner is insane.” (Phyle v. Duffy, 334 U.S. 431 [68 S.Ct. 1131, 1135, 92 L.Ed. 1494].)
This court, however, did not limit itself in In re Phyle, supra, to holding that habeas corpus was not the proper remedy, or even to holding that there could be no judicial review of the superintendent’s determination. It held unequivocally that there could be no judicial review under Cali*156fornia procedure and that petitioner’s right to a judicial hearing depended solely upon whether the warden believed that he was insane. (30 Cal.2d 838, 847 [186 P.2d 134].) The reasons for holding that there can be no judicial review of the superintendent’s determination likewise preclude issuance of mandamus to compel action by the warden. The decision of this court in Williams v. Duffy, 32 Cal.2d 578 [197 P.2d 341], does not compel a contrary conclusion. In that ease the court, proceeding on the assumption that mandamus was a proper remedy, held only that the petitioner therein did not present a sufficient case for the issuance of a peremptory writ. Penal Code, section 3700, precludes the suspension of the execution of the judgment by mandamus just as it precludes its suspension by habeas corpus. This statute prohibits any judicial intervention unless initiated by the warden of the state prison. In the absence of a holding by the United States Supreme Court that this statute is unconstitutional, I do not believe that this court should countenance the use of mandamus to defeat its clearly stated purpose.
It bears emphasis that section 3700 presupposes a valid judgment of death after a trial that has met all the requirements of due process of law. Then and only then is it operative; it would not be constitutional otherwise. It does not preclude attack upon the judgment itself by habeas corpus, coram nobis, or any other appropriate proceeding. In the present case there is no question of the validity of the judgment.
Petitioner contends that the procedure the Legislature has prescribed for determining his restoration to sanity would deprive him of his life without due process of law. Petitioner is to bé deprived of his life, not because an administrative officer has found him sane, but because a jury has duly found him guilty of murder in the first degree. Petitioner does not claim to have been insane at the time he committed the offense or unable to assist in his own defense because of insanity at the time of trial. He relies on the accidental intervention of insanity after trial and conviction as a basis for a right under the Fourteenth Amendment to have the execution of the judgment suspended pending a formal judicial determination. He contends that this right is so extensive that the state is powerless to leave the final determination of his sanity to an administrative officer.
Taking refuge in insanity as a means of escaping execution is not a constitutional right, but a privilege that the state has *157conferred as an act of mercy or special dispensation. As the United States Supreme Court stated in Nobles v. Georgia, 168 U.S. 398, 407 [18 S.Ct. 87, 42 L.Ed. 515]: “The plea at this stage is only an appeal to the humanity of the court to postpone the punishment until recovery takes place, or as a merciful dispensation. The rights of the prisoner as an offender on trial for an offense are not involved. He has had the benefit of a jury trial, and it is now the court, only, which must be satisfied on the score of humanity.” (Accord: People v. Knott, 122 Cal. 410 [55 P. 154]; Spann v. State, 47 Ga. 549; Davidson v. Commonwealth, 174 Ky. 789 [192 S.W. 846]; Laros v. Commonwealth, 84 Pa.St.200; State ex rel. Alfani v. Superior Court, 139 Wash. 125 [245 P. 929].) Recognizing that the suspension of execution on the ground of intervening insanity is a privilege granted by the state, and not a fundamental right of the defendant, at least 15 states* have dispensed with a formal judicial hearing upon the issue; others have provided merely for an informal inquiry that need satisfy only the trial judge of the defendant’s sanity. Georgia, whose summary procedure was upheld in Nobles v. Georgia, supra, 168 U.S. 398, has repealed the statutes there questioned, and now provides no method by which the claim of intervening insanity may be raised. (Cribb v. Parker, 119 Ga. 298 [46 S.E.110].) Even in states in which the determination is made by the trial judge, the proceeding is not regarded as judicial in nature. “The appointment of the commission and the investigation made by them was not deemed or intended to be a trial in any sense of the word. It was simply, in our judgment, the proper exercise of a discretionary power.” (State v. Nordstrom, 21 Wash. 403, 409 [58 P. 248].) It has been held proper for the state to make the decision of the initial arbiter final, expressly precluding any judicial review thereof. (Webber v. Commonwealth, 119 Pa.St. 223 [13 A. 427]; Darnell v. State, (Tex.Cr.) 5 S.W. 522; State v. Nordstrom, 21 Wash. 403 [58 P. 248]; see cases collected in 49 A.L.R. 804.)
There has been wide recognition of the value of delegating decisions of this kind to administrative experts. The British Criminal Lunatics Act, for example, provides (47 and 48 Viet., ch. 64) that a person “. . . ceases to be a criminal lunatic (1) if he is remitted to prison by a warrant of the Secretary *158of State issued upon a certificate from two medical practitioners that he is sane. ...” (26 Halsbury’s Laws of England 207.) The official draft of the proposed Code of Criminal Procedure of the American Law Institute makes provision (§§409-12) for a procedure similar to that established by the Penal Code. Section 412 of the American Law Institute Code provides for the commitment to an institution of a person under sentence of death who has been found .to be insane. It then provides that “[I]f thereafter the proper officer of such institution is of the opinion that the defendant is sane he shall report this fact, to the governor, whereupon the governor shall appoint a commission consisting of two competent disinterested physicians to determine whether the defendant has been restored to sanity. ... If, after the report of the commission, the governor decides that the defendant has been restored to sanity, he shall cause the defendant to be returned to the custody of the- (officer in charge of the prison to which the defendant has been committed) and shall issue a warrant to the - directing him to execute the sentence at a time designated in such warrant.” (Amer. Law Institute, Code of Criminal Procedure, § 412.) Under none of these provisions has it been deemed necessary or desirable that the defendant be accorded a judicial hearing or that his “right to insanity” be safeguarded against ex parte determination by appropriate administrative officials. (See, also, People v. Sloper, 198 Cal. 601 [246 P. 802]; People v. Eldred, 103 Colo. 334 [86 P.2d 248]; Bingham v. State, 82 Okla.Cr. 305 [169 P.2d 311]; State v. Nordstrom, 21 Wash. 403 [58 P. 248].)
The reason ordinarily advanced against executing a man who has become insane since judgment is that he might, if sane, recall something in stay of execution. (See 4 Blackstone, Commentaries (Jones ed.), p. 25.) Can this reason serve as a basis for a constitutional right not to be executed while insane ? The possibility that a defendant, sane at the time of his trial, will recall some fact in stay of execution after a period of intervening insanity is remote. The reasoning that would establish a constitutional right to delay on this basis would also serve to postpone the execution of a sane man on the ground that a witness might conceivably be discovered thereafter whose testimony might save him. If the possibility of a subsequently refreshed memory were enough to prevent the execution of an insane man, it would also render unconstitutional any capital punishment, since it is possible to *159speculate endlessly about the possibilities that would rescue a condemned man from execution provided it were delayed long enough.
Those who would delay capital punishment by questioning the finality of an administrative determination of sanity may in reality be concerned with the finality of capital punishment itself. Is it not an inverted humanitarianism that deplores as barbarous the capital punishment of those who have become insane after trial and conviction, but accepts the capital punishment of sane men, a curious reasoning that would free a man from capital punishment only if he is not in full possession of his senses?
Petitioner can claim at most a privilege, not a constitutional right. The Legislature has qualified this privilege by the condition that the administrative determination of sanity is not subject to judicial review; it has done so to prevent abuses of the privilege to secure delay. It is now contended, however, that the Legislature cannot thus qualify the privilege it has granted; that when the determination of the fact is a matter of life or death, it cannot be left to the ex parte unreviewable decision of an administrative officer.
The misleading implication is that petitioner is condemned by an administrative determination of his sanity. His life was forfeit when a jury found him guilty of first degree murder. His temporary release from punishment was a reprieve, not an absolution. His plea is now but to the mercy of the state.
The Legislature can properly leave to an administrative officer the final determination as to whether a condition exists that justifies extending a privilege. (United States ex rel. Johnson v. Shaughnessy, 336 U.S. 806 [69 S.Ct. 921, 93 L.Ed. ---]; St. Joseph Stockyards Co. v. United States, 298 U.S. 38, 77 [56 S.Ct. 720, 80 L.Ed. 1033]; Dismuke v. United States, 297 U.S. 167, 171-172 [56 S.Ct. 400, 80 L.Ed. 561]; Work v. Rives, 267 U.S. 175,182 [45 S.Ct. 252, 69 L.Ed. 561]; United States v. Babcock, 250 U.S. 328, 331 [39 S.Ct. 464, 63 L.Ed. 1011]; United States v. Ju Toy, 198 U.S. 253, 261-262 [25 S.Ct. 644, 49 L.Ed. 1040]; Carmichael v. Delaney, 170 F.2d 239, 243-244; United States ex rel. Medeiros v. Watkins, 166 F.2d 897, 899; United States ex rel. Lapides v. Watkins, 165 F.2d 1017.) When there is merely a question of the regulation of a privilege, the validity of final administrative decisions under the due process clause does not require that notice or hearing be given. (Oceanic Steam Nav. Co. v. Stranaham, *160214 U.S. 320-338 [29 S.Ct. 671, 53 L.Ed. 1013]; Perkins v. Lukens Steel Co., 310 U.S. 113 [60 S.Ct. 869, 84 L.Ed. 1108]; Origet v. Hedden, 155 U.S. 228 [15 S.Ct. 92, 39 L.Ed. 130]; Passavant & Co. v. United States, 148 U.S. 214 [13 S.Ct. 572, 37 L.Ed. 426]; Decatur v. Paulding, 14 Pet. (U.S.) 497 [10 L.Ed. 559]; United States v. Ju Toy, 198 U.S. 253, 261-262 [25 S.Ct. 644, 49 L.Ed. 1040].)
The present ease is analogous to those involving indeterminate sentence laws that give administrative agencies exclusive power to reduce the maximum sentences imposed by law. Upon conviction the defendant forfeits his liberty for the maximum term specified by statute. Thereafter the appropriate administrative body may reduce the sentence if it sees fit. These statutes, which allow the defendant’s liberty to turn on the ex parte unreviewable decision of administrative officers, have been uniformly upheld on the ground that they violate no provision of the United States Constitution. (Ughbanks v. Armstrong, 208 U.S. 481 [28 S.Ct. 372, 52 L.Ed. 582]; Dreyer v. Ellinois, 187 U.S. 71, 84 [23 S.Ct. 28, 47 L.Ed 79]; United States v. Ragen, 159 F.2d 356, cert. den. 331 U.S. 823 [67 S.Ct. 1311, 91 L.Ed. 1839]; People v. Connors, 291 Ill. 614 [126 N.E. 595], aff'd, 260 U.S. 695 [43 S.Ct. 11, 67 L.Ed. 468]; see also In re Byrnes, 32 Cal.2d 843, 850 [198 P.2d 685].) Otherwise it would be unconstitutional to give to the governor of the state the power to commute sentences. Here again the question of life or death turns on the unreviewable decision of a single non judicial officer; yet it has never been suggested that his decisions are subject to judicial review. Executive clemency is recognized as an act of mercy. Granting of the privilege of not being executed to one who is insane is likewise an act of mercy. Considerations may be presented to the governor for stay of execution or commutation of sentence that constitute much stronger grounds for mercy than intervening insanity; there may be strong doubts as to defendant’s very guilt, or mitigating circumstances that do not warrant judicial intervention but carry a strong appeal to executive clemency. Yet the governor’s determination is final even though it may be adverse to the petitioner. It follows that unless the Constitution itself prohibits the execution of a man who has become insane since judgment, the Legislature may well leave to the warden the final determination as to whether there is reason to believe he is insane.
The procedure provided by sections 3700-3704 of the Penal Code to determine when execution shall be stayed because of *161defendant’s intervening insanity is closely akin to that approved by the United States Supreme Court in Nobles v. Georgia, 168 U.S. 398 [18 S.Ct. 87, 42 L.Ed. 515]. Under that procedure also the determination of whether there was reason to believe defendant insane was left to the ex parte determination of a single state officer, and there was no hearing on the question. The court held that due process did not require the granting of a hearing on this issue when a state judge had determined after an ex parte examination of the defendant that there was no reason to believe that defendant was insane. It has been suggested that the Georgia procedure was sustained because a judge ruled on the question of fact. As at common law, the person given the discretionary authority was the trial judge, but it is clear, however, that he acted much in the manner of an administrative official or board. “It is rather a perversion of terms to call an inquisition of this kind the act of a court and to exercise in reference to it the writ of certiorari. The whole proceeding is rather an inquiry based on public propriety and decency, than a matter of right. ...” (Spann v. State, 47 Ga. 549, 551. See, also, Baughn v. State, 100 Ga. 554 [28 S.E. 68, 38 L.R.A. 577], aif’d in Nobles v. Georgia, and Carr v. State, 98 Ga. 89 [27 S.E. 148], holding that under the law of Georgia the decision was not appealable.) It is settled, moreover, that the doctrine of separation of powers under the United States Constitution, which requires that certain issues of law or fact be decided by the judicial branch in the federal government, has no application to the states. (Claiborne County v. Brooks, 111 U.S. 400, 410 [48 S.Ct. 489, 28 L.Ed. 470]; Carfer v. Caldwell, 200 U.S. 293, 297 [26 S.Ct. 264, 50 L.Ed. 488]; Consolidated Rendering Co. v. Vermont, 207 U.S. 541, 552 [28 S.Ct. 178, 52 L.Ed. 327]; Reetz v. Michigan, 188 U.S. 505, 507 [23 S.Ct. 390, 47 L.Ed. 563]; Dreyer v. Illinois, 187 U.S. 71, 84 [23 S.Ct. 28, 47 L.Ed. 79].) There is nothing in the United States Constitution requiring states to delegate to one branch rather than another the decision on a question of fact. If due process requires notice and hearing, those requirements must be met whether the question is to be decided by a judge or an administrative officer. (Honeyman v. Hanan, 302 U.S. 375, 378 [58 S.Ct. 273, 82 L.Ed. 312]; Gelfert v. National City Bank of New York, 313 U.S. 221, 235 [61 S.Ct. 898, 85 L.Ed. 1299, 133 A.L.R. 1467].) If due process does not require *162notice and hearing, it is immaterial whether the ex parte determination is made by a judge or a nonjudicial officer of the government. Accordingly, the approval of the ex parte determination of a judge in the Nobles case by the United States Supreme Court would seem to be directed at the validity of the determination itself, not at the fact that it was made by a judge.
Petitioner had the benefit of independent determinations of his sanity by the hospital superintendent and by the warden. The Legislature is entitled to rely upon a presumption that these administrative and executive officers will act honestly and in good faith. There is no reason to believe that a judge could do more.
Petitioner contends, however, that since his insanity was initially determined by a jury in a judicial hearing, that adjudication gave him a vested right to be considered insane. He contends that either the judgment should continue in force or there should be proceedings in a court of competent jurisdiction to annul it or to supersede it with one of equal and later authority. This contention attributes to that adjudication a conclusiveness that it does not have. The judgment did not give petitioner a continuing status of insanity that can only be terminated after another judicial hearing. (Kellogg v. Cochran, 87 Cal. 192, 198 [25 P. 677, 12 L.R.A. 104]; United States v. Halliday, 116 F.2d 812; In re Kassler, 173 Misc. 856 [19 N.Y.S.2d 266]; Sutton v. Sutton, 222 N.C. 274 [22 S.E.2d 553]; Bishop v. Bishop, 40 Ohio App. 493 [179 N.E. 142].) The order of commitment stated only that the petitioner was then insane, and, pursuant to Penal Code, section 3704, provided expressly “when said William Jerome Phyle recovers his reason, that the Superintendent of the State Hospital in which he is confined certify that fact to the Governor of the State of California for further proceedings as is required by law. ’ ’ The order by its terms recognizes that petitioner was to be confined in the hospital only until the superintendent certified that he had recovered his reason. When that certification is made, the order of commitment and the judgment of insanity no longer bar his recommitment to prison. When a statute such as section 3704 provides that the authorities of an institution shall discharge an inmate upon their determination that he is sane, such a discharge restores the person to a status of sanity. (Kellogg v. Cochran, 87 Cal. 192, 198 [25 P. 677, 12 L.R.A. 104]; Shaw v. Feehan, 207 Cal. 561 [279 P. 658]; People ex rel. Guiseppi v. Thayer, *163242 N.Y.S. 293; State ex rel. Connor v. Lamneck, 133 Ohio St. 257 [13 N.E.2d 127] ; see Smoot, Law of Insanity, § 168, p. 128 and American Law Institute, Code of Criminal Procedure, § 412.) The hospital superintendent acted pnrsuant to the statute and the order of commitment; it cannot reasonably be held that this order precluded his making the determination it prescribed.
This court is here concerned, not with the wisdom of capital punishment or of the statutory procedure attendant upon it, but solely with the validity of that procedure. It may nevertheless be noted that there is sound reason underlying Penal Code, section 3700, so long as capital punishment is authorized in this state. If a defendant condemned to death under a valid judgment is allowed recourse to the courts as a matter of right upon his claim to be insane, he may secure an interminable reprieve merely by alleging that he is insane. Even after he is adjudged sane following hearing and appeal, he can allege that he has since become insane. Since the issue is his present insanity, he can thus set in motion an endless procession from trial to appeal to trial to appeal. Such procedure “would make the punishment of a defendant ‘depend solely upon his fecundity in making suggestion after suggestion of insanity, to be followed by trial upon trial’.” (Phyle v. Duffy, 334 U.S. 431 [68 S.Ct. 1131, 1134, 92 L.Ed. 1494].) If the warden’s decision is subject to judicial review, the way is open for the endless series of trials and appeals that the Legislature sought to prevent by the enactment of section 3700.
Even if it is assumed that mandamus will lie to review the warden’s determination, the peremptory writ was properly denied in this ease. Petitioner was in fact, although erroneously, accorded a full judicial hearing on the question whether there was reason to believe that he was then insane. As the opinion of Mr. Justice Edmonds sets forth, not only was there ample evidence to support the judgment, but petitioner presented no evidence that might even serve as a basis for a contrary conclusion.
Spence, J., concurred.
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