This appeal- is from an order made by Hon. Reuben H. Wright, Judge of. the Sixth Judicial Circuit, remanding the petitioner, Dr. Alfred G. Moses, to the custody of the Superintendent of Bryce Hospital, a State Institution for the treatment of insane persons, located at Tuscaloosa, Alabama. The appeal is authorized by § 369, Title 15, Code of 1940, which dispenses with a bill of exceptions and assignment of error.
In said habeas corpus proceedings, the petitioner seeks his discharge on the ground that in the proceedings for his commitment conducted by Norvelle R. Leigh, Jr., as Judge of Probate of Mobile County, in that without notice to petitioner he was denied due process of law under said ex parte proceedings under the statutes. The statutes which petitioner attacks as unconstitutional are §§ 208, 210, Title 45, Code of 1940. The ‘basis of his contention is that said § 210 leaves the right of petitioner to notice and ■hearing to the discretion of the Judge of Probate, ignoring the provisions of the Constitutions, both State and Federal, that no person shall be deprived of his liberty without due process of law.
The trial was had before the Judge and a jury, resulting in the order appealed from remanding petitioner to the custody of the Superintendent of Bryce Hospital. The habeas corpus proceedings are authorized by § 3, Title 15, Code of 1940. The power.*362to hear the proceeding's is vested in the Judge, not in the Court. Code of 1940, Title 15, §§ 6 and 7. At the hearing Judge Wright denied the petitioner’s contention, sustained the constitutionality of the statutes and upheld the validity of the commitments made by Judge Norville R. Leigh, Jr. '
Among the other averments in the petition we find the following: “Your petitioner is sane and is entitled to his liberty.” A statement of the substance of the evidence is made by the trial Judge and certified by him to be such. We quote from the statement which is authorized by § 369, Title 15, Code of 1940, as follows:
“The evidence was overwhelming that Dr. Moses was insane and should not be discharged and the jury so found, and the Court so adjudged and determined.
“This is a sad case but the Court is convinced that the jury verdict is right and should be sustained both for the safety and well being of the public and of Dr. Moses.”
It is familiar law that the constitutionality of a law will not be considered on appeal unless essential to the decision of the actual case before the court. State ex rel. Knox v. Dillard, 196 Ala. 539, 72 So. 56.
The judgment of the trial Judge remanding the petitioner to the custody of the Superintendent of Bryce Hospital is affirmed without prejudice. Code of 1940, Title 15, § 3; 25 Am.Jur. § 156, p. 250.
Affirmed.
LIVINGSTON, C. J., and FOSTER, LAWSON, SIMPSON and STAKELY, JJ., concur. BROWN, J., dissents.