I concur in that portion of the majority opinion which upholds the constitutionality of section 5501 of the Welfare and Institutions Code and dissent from that *222portion which holds that petitioner is entitled to bail while being held for examination as a sexual psychopath and from the judgment admitting him to bail.
Insofar as the misdemeanor charges upon which petitioner was convicted in the municipal court are concerned, he is entitled to bail pending his appeal from the judgment of conviction, but that is not the question before this court. The matter which this court is called upon to decide is whether he is entitled to be released on bail pending the hearing upon the allegation as to his sexual psychopathy. The proceeding to determine whether he is a sexual psychopath is entirely separate and apart from the criminal charges in the municipal court. Upon his conviction there he was certified to the superior court in order that that court might determine the matter of his sexual psychopathy and deal with him • accordingly.
One error of the majority lies in treating the sexual psychopath law as a penal statute and a proceeding thereunder as a criminal matter although it is not. Such a proceeding is not a criminal prosecution but is a “civil inquest concerning defendant’s mental condition and sexual deviations.” (People v. Chapman, 301 Mich. 584 [4 N.W.2d 18, 26]; Malone v. Overholzer, 93 F.Supp. 647.) It is a civil proceeding and a commitment is not regarded as a sentence or punishment. (In re Moulton, - N.H. - [77 A.2d 26, 28].) Constitutional provisions relating to criminal trials are not all pertinent to such proceedings as that under consideration since the statute is curative and remedial instead of punitive, and inasmuch as it is not a criminal statute the constitutional inhibition against compulsory self-incrimination is not applicable. (State v. Green, 360 Mo. 1249 [232 S.W.2d 897, 900, 901].) A person proceeded against under such a statute is not punished because of his condition. He is an unfortunate person and until cured is not fit to mingle in society and should be institutionalized until it is safe both for him and for society that he be released. (In re Kemmerer, 309 Mich. 313 [15 N.W.2d 652, 653].) An examination under the sexual psychopath statute is neither a criminal nor an adversary proceeding but is conducted by the state in its character as parens patriae. (In re Masters, 216 Minn. 553 [13 N.W.2d 487, 491, 158 A.L.R. 1210, 1216].)
The doctrine of parens patriae refers, to the sovereign power of guardianship of persons under disability and the inherent and fundamental right and duty of the state to care for per*223sons who are unable to care for themselves or who are a menace to themselves or to the health, morals or safety of others. (In re Turner, 94 Kan. 115 [145 P. 871, 872; Ann.Cas. 1916E 1022]; McIntosh v. Dill, 86 Okla. 1 [205 P. 917, 925-6]; State v. Green, supra, p. 902.)
The Welfare and Institutions Code contains provisions for the detention, care and treatment of persons who are afflicted with abnormalities of various Bnds. Division VI of the code is titled “Mentally Irresponsible Persons,” and part 1 of that division relates to commitments of such persons. Contained in division VI are provisions for the apprehension, hearing and examination of those who are mentally ill (insane after having been so declared) (§§ 5000 to 5160); feeble-minded persons and other incompetents not insane (§§ 5250 to 5264); narcotic addicts (§§5350 to 5361); dipsomaniacs, inebriates, and stimulant addicts (§§ 5400 to 5408); sexual psychopaths (§§ 5500 to 5518.) The proceedings relating to the apprehension, detention and custody of each class of incompetent persons is essentially the same. (See §§ 5050, 5256, 5351, 5400, 5501.)
The purpose of all the foregoing provisions, whatever may be the abnormal tendency of a person, is twofold: (2) to protect the afflicted individual from injury to himself and (2) to remove him from contact with the public so that he will not be a menace to the safety or the health of others. Admitting such a person to bail would frustrate the intent of the statute between the date of admission to bail and the date of his hearing and commitment. If the theory of the majority opinion should be accepted as the law of the state he would be entitled to bail pending his appeal and thus would be a continued danger to himself and a menace to all others with whom he might come in contact. I cannot bring myself to believe that a sexual psychopath whose tendencies are to maltreat and abuse little children should be permitted to roam the streets and inflict himself upon other victims while the proceeding which is verily intended to remove him from society is progressing through the courts.
The fallacy of such a theory is well illustrated by petitioner’s record as set forth in the order of detention. The municipal court there certifies that he was convicted in that court of a violation of subsection 1 of section 311 of the Penal Code (indecent exposure) and subsection 5 of section 647 of the Penal Code (vagrancy—lewd and dissolute person). The court further certifies as follows: “It further *224appears that in 1941 defendant (then aged 13), committed numerous acts of sex perversion against various children (Penal Code Section 288) and animals (Penal Code Section 286), was an habitual masturbator; and was committed to juvenile authorities pursuant to subsections1 (k) and (m), Section 700, Welfare and Institutions Code; that Los Angeles Police Department records of January 21, 1951, state in part: ‘Arrestee’s character and personal habits . . When a juvenile, developed excessive masturbation habits, also perverted sex drives, still masturbates, and could develop psychopathic tendencies. ’ That defendant was granted probation May 22, 1950, by Santa Monica Branch of the Los Angeles County Superior Court for five years, for violation of Penal Code Section 211 (robbery); ...”
Manifestly a person with such a record of sex offenses and sex perversions as is indicated above is not a fit person to be at large.
When the statutory definitions of “mentally ill persons” and “sexual psychopaths” are analogized it will be found that there is very little difference. “ ‘Mentally ill persons’ means persons who are of such mental condition that without supervision, treatment, care or restraint they would be or might be dangerous to themselves or to the person or property of others.” (Welf. & Inst. Code, § 5040.) “As used in this chapter ‘sexual psychopath’ means any person who is afflicted, in a form predisposing to the commission of sexual offenses, and in a degree constituting him a menace to the health or safety of others, with any of the following conditions: (a) Mental disease or disorder, (b) Psychopathic personality, (c) Marked departures from normal mentality.” (§5500.)
From the foregoing definitions a “mentally ill person” is one who might be dangerous to himself or to the person or property of others, and a “sexual psychopath” is one who is a menace to the health or safety of others with the conditions of either mental disease or disorder, or psychopathic personality or both. In whichever class a person may be, he is afflicted with a mental condition or disorder and is deemed to be dangerous and a menace to others.
Furthermore, section 5501 requires the affidavit for the detention of a sexual psychopath to be substantially in the form specified for the affidavit of mental illness in section 5049. Throughout the statute the Legislature intended to and did place both groups of mentally disordered persons on the same basis as to apprehension and detention.
If the majority of the court is correct in their theory that *225every person is entitled to bail irrespective of his condition and without reference to the fact that he is obviously a menace to other persons, then a mentally ill person who has been apprehended and detained as provided in sections 5050 and 5050.1 of the Welfare and Institutions Code would be entitled to bail no matter how violent he might be, since such mentally ill person is not deemed to be insane until he has had a hearing and has been so adjudicated by the court. (Welf. & Inst. Code, § 5041.)
A person of the type of petitioner, as indicated by the order of detention, is no less a menace to society and the public than a violently insane person who, intermediate his apprehension and commitment, is regarded only as mentally ill, yet the latter is kept in confinement from the time he is taken into custody. No case has been cited, and research has disclosed none, in which a person charged with being mentally ill or insane has been held to be entitled to be released on bail pending a hearing.
In In re Henley, 18 Cal.App. 1 [121 P. 933], relied on in the majority opinion, the court held that a person charged with the intemperate use of stimulants was entitled to bail pending examination. The question whether such a person was dangerous to himself or a menace to others was not involved. However, the court obviously realized that its decision in that case should not be regarded as an absolute rule applicable to all persons similarly charged when it said: “There might be instances under this statute where, for the safety of the individual or of society, it would be proper to deny bail” but in the absence of such a showing he should be admitted to bail. The order of detention of petitioner in the instant proceeding clearly shows that for the safety of society he should be restrained of his liberty until the superior co art conducts an examination and makes proper disposition of him.
I would discharge the petition for a writ of habeas corpus and remand petitioner to the custody of the sheriff to be dealt with according to law in the superior court.