(dissenting). The prisoner-petitioner seeks a writ of mandamus to compel his transfer to a state hospital and an injunction to permit him to write letters to a federal administrative agency.
As to compelling transfer from prison to hospital, the majority opinion finds the prison authorities are required by statute to exercise their discretion concerning adequacy of health care at the prison and need for transfer to a state hospital for treatment.
Mandamus, the majority holding makes clear, will not lie to compel a specific result. It will lie only to determine (1) whether statutorily conferred discretion was abused; (2) whether such discretion was exercised arbitrarily and capriciously; or (3) to compel the exercise of that discretion. The issue of whether the prisoner could be better treated in a hospital than in the prison is not before us, because, in the words of the majority opinion, “. . . that evaluation is left to the discretion of the department.”
Finding that this record does not show that statutorily conferred discretion was in fact exercised by the prison authorities, the majority enters an order “requiring the department to answer the petition on its merits.” Exercise of discretion established, the trial court is to deter*359mine “whether there has been any abuse of discretion.” The record being foggy enough, the writer does not disagree with such limited return for such limited purpose.
As to permitting the letter writing to a federal administrative agency, the court majority changes signals and runs in the opposite direction. A specific Wisconsin statute confers upon prison authorities the discretion to regulate communication between prison inmates and any person outside the prison.1 That discretion was here exercised by the return of the prisoner’s letter to him as violative of prison rules. Here the majority opinion challenges not only the exercise of discretion but the validity of prison regulations that, in its words, “limit the number of letters which may be written per week, the number of correspondents to whom a prisoner may write,” and “forbids, as in this case, correspondence with certain classes of persons.”
Such sweeping challenge to the right of prison authorities to regulate outgoing mail from prison inmates, the majority holds, is required because of first-amendment assurances as to “. . . the right of the people ... to petition the Government for a redress of grievances,” and the second is that “Congress shall make no law . . . abridging the freedom of speech.” 2 It is not new to note that a prisoner has the right to write to his counsel, the courts or governor in regard to his conviction or conditions in the prison. What is new is the majority’s implication that “freedom of speech” is a constitutionally assured right of prison inmates. Actually, what the majority terms the “modern view” on the applicability of “freedom of speech” guarantees to convicted felons in state or federal penal institutions goes beyond narrowing the area of discretion within which prison authorities may regulate and control prisoner mail. The majority *360opinion would put the burden on prison authorities in any situation to show that any restrictions on prisoner correspondence are “. . . both reasonably and necessarily . . related to the advancement of, . . some justifiable purpose of imprisonment. . . .” Applying such approach and cited by the majority is a federal district court level decision where a federal district judge found such “compelling governmental interest” not shown where a prison inmate was prevented from corresponding with a married woman, not his wife.3 The majority opinion and its “modern view” would bulldoze the general rule as to prison mail as followed in most jurisdictions up to now. That general rule, which the writer would follow and here apply, is:
“. . . the general rule [is] that the regulation of the flow of mail from a penal institution is essentially an administrative matter for prison officials and their action in regard thereto is not subject to judicial review except under the most unusual circumstances. . . .” 4
To this general rule, that mailing privileges fall within the internal management area, there has been recognized a definite, but limited, exception, well stated to be:
“. . . we recognized as a ‘narrow exception’ to the general rule the right of a prisoner to correspond with his attorney, or the courts, or appropriate state officials, regarding the legality of his conviction or the condition of his incarceration. . . .” 5
*361It is this exception to the rule which protects the right of a prisoner to communicate with counsel, courts, governor or public official but only “regarding the legality of his conviction or the condition of his incarceration.” This is the “redress of grievances” exception to the general rule. Persons in prisons, like other individuals, have the right to petition the government for redress of grievances which, of course, includes “ ‘access of prisoners to the courts for the purpose of presenting their complaints.’ ” 6
However, in the case before us, the letter which the prisoner sought to send concerned medical facilities and services of the Veterans Administration, an agency of the federal government. The V. A. is a service-providing and facilities-maintaining federal agency. It has no authority, jurisdiction or role as to the legality of the prisoner’s conviction or the conditions of his incarceration following conviction in a state court. It would take a lot of stretching to bring the letter to the V. A. within the “redress of grievances” exception to the general rule that control of prison mail is a matter of administrative discretion for prison authorities to determine.
However, if the majority had held no more than that the letter here fell within the “redress of grievances” exception, all that would have occurred would be that the doorway was widened as to what classes or categories of persons may be written to by a prison inmate. Whether based on “redress of grievances” or public policy considerations, the result would have been that prisoners, where the condition of their health is at issue in either a challenge to conviction or to conditions of incarceration, may write to any physician, any hospital *362or to the medical and hospital facilities maintained by the Veterans Administration. That goes further than the writer would, but at least the definite limits to the widened exception of the general rule that the control of prison mail is a matter of prison administration 7 would be clear. The majority has gone further than that.
Not content with widening the doorway, the majority opinion has knocked the door off its hinges. This it has done by finding the first-amendment guarantee of freedom of speech applicable to prison inmates in state penal institutions, unless the prison authorities can show something more than “. . . [m]ere convenience of the prison administration.” If this approach were to be generally accepted, and we doubt that it will,8 the unenviable task of jailers and prison employees would become not only more difficult, but also far more dangerous to themselves and all those confined in prisons. Under optimum conditions, compressing and confining a considerable number of convicted felons, some aggressive and acting-out psychopathic personalities in a prison setting, creates a volatile situation. The maintenance of order and the avoiding of individual or group *363acts of inmate violence are the essence of proper prison management. Without the maintenance of order within the prison, neither its custodial nor rehabilitative purposes can be served or advanced. A prison is not a place of “civil death,” the majority states. Neither is it a Hyde Park in London, or a branch office of the United States postal service. Neither the maintenance of discipline nor the promotion of rehabilitation would be served by providing a soapbox or an unlimited mailing service to those in jails or prisons.9 The first-amendment guarantee of “freedom of speech” cannot be applied in a prison situation without serious consequences involving the lives and safety of both inmates and prison employees. In the writer’s opinion, it need not be.
The United States Supreme Court has made it clear that not all constitutional rights and privileges are available to convicted felons in penal institutions. The majority opinion sets forth the clear-cut statement of the nation’s highest court on the exact point, to wit:
“Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.” 10
This controlling statement of the high court is, however, referred to in the majority opinion as no more than part of “. . . a conflict between two oft-quoted views.” *364The other view is stated to be that of one federal appeals court in a case which the United States Supreme Court declined to review.11 Something new has been added to constitutional law if such refusal to grant certiorari in a later case constitutes a reversal or modification of a clear-cut and definite ruling by the nation’s highest court on a particular phase of constitutional law.
Until it is reversed or modified by the court that wrote it, the Price decision establishes that confinement in prison “. . . brings about the necessary withdrawal” of many privileges and rights.12 One such right withdrawn is, the writer submits, the right to write to whom one will about what one chooses. The right and privilege to write one’s attorney, the courts, or a public official or department whose function includes concern with convictions and conditions in prisons sufficiently protects the “redress of grievances” right. To add “freedom of speech” as a right assured prison inmates appears to the writer unnecessary, unwise and an assurance of future difficulties.
The writer would deny injunctive relief to the prisoner-petitioner, finding no abuse of discretion, statutorily conferred, and finding no invasion of constitutional rights and privileges in the refusal — under the rules— of the prison authorities to mail the letter from the prison inmate to a federal administrative agency.
I am authorized to state that Mr. Justice Leo B. Hanley and Mr. Justice Connor T. Hansen join in this dissent.
Sec. 53.09, Stats.
Art. I, Amendments to the United States Constitution.
Morales v. Schmidt (W. D. Wis. 1972), 340 Fed. Supp. 544.
Evans v. Moseley (10th Cir. 1972), 455 Fed. 2d 1084, 1087. See also: 60 Am. Jur. 2d, Penal and Correctional Institutions, p. 855, sec. 47, stating: “Ordinarily the regulation of prisoners’ mail is a matter within the administrative discretion of prison officials, and in the absence of a showing of a violation of a legal right or of an abuse of discretion by prison officials, a court should not interfere. . . .”
Evans v. Moseley, supra, at page 1087 (citing LeVier v. Wood-son (10th Cir. 1971), 443 Fed. 2d 360). See also: 60 Am. Jur. 2d, Penal and Correctional Institutions, p. 857, sec. 49, stating: “Prison officials should not interfere with a prisoner’s access to the courts, *361or with a reasonable correspondence designed to procure for the prisoner legal assistance for the purpose of testing the validity of his conviction or the constitutionality of punitive treatment which he may claim to he cruel and unreasonable. . .
Cruz v. Beto (1972), 405 U. S. 319, 92 Sup. Ct. 1079, 31 L. Ed. 2d 263.
Brown v. Wainwright (5th Cir. 1969), 419 Fed. 2d 1308, holding, “The control of prison mail is a matter of prison administration. The claim here does not rise to the level of a federal claim . . .” (Holding prison mail censorship is a matter for prison officials’ discretion.) Diehl v. Wainwright (5th Cir. 1970), 419 Fed. 2d 1309 (citing Granville v. Hunt (5th Cir. 1969), 411 Fed. 2d 9, 12), stating at pages 1309, 1310: “‘[T]his Court has been very chary about interfering in the internal operation and administration of prison systems, and we have done so only in exceptional cases . . . .’ The ‘exceptional cases’ have generally heen limited to situations where the complaint states facts indicating an abuse of administrative discretion. . . .”
See: Evans v. Moseley, supra, where the Tenth Circuit Court of Appeals dealt with the “right” of a prisoner to have a letter mailed to an attorney not connected with his case nor retained by him. The correspondence was “part of his efforts” to establish within the prison a chapter of a “Black United Front” or activist-type inmate organization. The appeals court noted at page 1087 that the prisoner and his fellow inmates “. . . desired to solicit his [the attorney’s] help in their efforts to establish a chapter inside the prison. . . .” To the prisoner’s claim that he had a “constitutional right” to have his letter mailed, the appeals court answered, “We disagree.”
Quoted from the majority opinion, citing Price v. Johnston (1948), 334 U. S. 266, 285, 68 Sup. Ct. 1049, 92 L. Ed. 1356.
Coffin v. Reichard (6th Cir. 1944), 143 Fed. 2d 443, 445, certiorari denied (1945), 325 U. S. 887, 65 Sup. Ct. 1568, 89 L. Ed. 2001, stating: “A prisoner retains all the rights of an ordinary citizen except those expressly, or by necessary implication, taken from him by law.”
Price v. Johnston, supra, at page 285.