MILLARD AND FULLERTON, JJ., dissent. *Page 336 The relator, as prosecuting attorney for King county, seeks in this court a writ of prohibition restraining the superior court for Walla Walla county from discharging, upon a habeas corpus proceeding commenced in that court, Ruth Garrison from her confinement as a criminally insane person in the department of the criminally insane in the penitentiary of this state in that county; she having been so committed by a judgment of the superior court for King county upon her being found, by a jury in that court, not guilty of the crime of murder because of her insanity.
Relator seeks this relief in behalf of the state upon the theory that the superior court for Walla Walla county is proceeding in excess of its jurisdiction, in view of the provisions of §§ 4, 6 and 7, ch. 30, Laws of 1907, pp. 34-36; §§ 2176, 6970 and 6971, Rem. Comp. Stat., which, he contends, vest in the superior court for King county exclusive jurisdiction to entertain the question of the discharge of Ruth Garrison from such confinement. Upon the filing of relator's application in this court, an alternative writ was issued staying the habeas corpus proceeding in the superior court for Walla Walla county pending the disposition of relator's application in this court. The matter is before us upon the answer and return of the judge of the superior court to relator's application and the alternative writ. *Page 337
We summarize from the admissions and allegations of the answer and return of the judge of the superior court what we conceive to be the controlling facts determinative of the question of that court's exceeding its jurisdiction. On May 14, 1919, there was duly rendered by the superior court for King county a judgment of commitment against Ruth Garrison, which, in so far as we need here notice its language, reads as follows:
"WHEREAS the said defendant [Ruth Garrison] in this court, upon the 9th day of May, 1919, has been found not guilty of the crime of murder in the first degree; and
"WHEREAS the jury further found:
"(1) That the defendant committed the crime charged;
"(2) That they acquit her because of her insanity or mental irresponsibility at the time of the commission of the crime charged; and
"(3) That her insanity or mental irresponsibility continued and existed at the time of the trial;
"Now, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED That the said defendant is not guilty of the crime of murder in the first degree;
"IT IS FURTHER ORDERED, ADJUDGED AND DECREED
"(1) That the defendant committed the crime charged;
"(2) That she is not guilty by reason of her insanity or mental irresponsibility at the time of its commission;
"(3) That her insanity or mental irresponsibility continued and existed at the time of the trial; and that she be confined as a criminally insane person in the penitentiary of the state of Washington, in the ward or department for criminally insane persons in such penitentiary, until discharged according to law."
This judgment was rendered in accordance with § 4, ch. 30, Laws of 1907, p. 34. She was accordingly delivered into the custody of the warden of the penitentiary. In December, 1929, Ruth Garrison, claiming *Page 338 that since her commitment she has become sane and a safe person to be at large, requested the physician in charge of the criminally insane at the penitentiary to so certify, to the end that she might apply to the superior court for King county for her discharge, as prescribed by § 6 of ch. 30 of the Laws of 1907, p. 35. Thereupon the physician certified as follows:
"December 18, 1929 "Clarence E. Long, Warden "Washington State Penitentiary "Walla Walla, Washington
"Dear Sir:
"Ruth Garrison, having applied to me, physician in charge of the criminal-insane at the Washington State Penitentiary at Walla Walla, for examination of her mental condition and fitness to be at large, I will state that I have had Ruth Garrison, No. 8762, under my continual observation for a period of over seven years last past, and during all of said time the said Ruth Garrison has been sane and normal mentally, and a fit and safe person to be at large, and at the present time she is sane and normal mentally, and is a fit and safe person to be at large.
"I was not the physician in charge at the Washington State Penitentiary at Walla Walla at the time the said Ruth Garrison was received at said institution and did not become acquainted with her until several months after she was received at such institution. I cannot certify that she has become sane since her commitment, or that she has become a safe person to be at large since her commitment, as I was in no way acquainted or familiar with her mental condition until several months after she was received at the Washington State Penitentiary, and had no connection with said institution until several months after Ruth Garrison was received at the penitentiary.
*Page 339"Respectfully yours, "J.W. INGRAM, "Physician in charge of the Criminal-insane at the Washington State Penitentiary at Walla Walla."
On December 21, 1929, the warden addressed a communication to her counsel refusing to permit her to present a petition to the superior court for King county for a hearing as to her having become sane and a safe person to be at large, expressing therein his opinion that he did not consider the certificate of the physician sufficient to warrant the granting to her permission to present a petition in that behalf to the superior court for King county.
Thereupon, by her counsel, she applied to the superior court for Walla Walla county for a writ of habeas corpus looking to her discharge, claiming her right to be discharged because of her becoming sane and a safe person to be at large. The warden, appearing by the Attorney General, resisted the entertainment of the question of her right to a discharge through habeas corpus proceedings in the superior court for Walla Walla county, upon the ground that that court did not have jurisdiction to so entertain that question.
That court overruled the challenge to its jurisdiction, and proceeded with the hearing, receiving evidence introduced in her behalf, and at the conclusion of the hearing, orally announced its decision to discharge her, upon the ground that she had become sane and a safe person to be at large. Before the entry of a formal judgment in accordance with such announced decision, the alternative writ of prohibition was, upon application of relator, issued by this court temporarily restraining the superior court from proceeding in accordance with its announced decision.
It seems desirable that we have before us, preliminary to our discussion of the several contentions here made, certain of our statutory provisions. It is conceded that the judgment of commitment, above quoted, was rendered strictly in accordance with *Page 340 ch. 30, Laws of 1907, p. 33, so we need not notice the provisions of that act prescribing the procedure up to the rendering of such a judgment. The provisions of that act, so far as material to our present inquiry, are as follows:
"Sec. 4. [§ 2176, Rem. Comp. Stat.] If the jury find that the defendant committed the crime charged, that he is acquitted because of his insanity or mental irresponsibility at the time of its commission, and that the insanity or mental irresponsibility still exists, or, if it does not exist, that he is so liable to a relapse or recurrence of the insane or mentally irresponsible condition as to be an unsafe person to be at large, the court shall enter judgment in accordance therewith, and shall order the defendant committed as a criminally insane person until such time as he shall be discharged as hereinafter provided.
"Sec. 6. [§ 6970, Rem. Comp. Stat.] When any person committed hereunder shall claim to have become sane or mentally responsible and to be free from danger of any relapse or recurrence of mental unsoundness and a safe person to be at large, he shall apply to the physician in charge of the criminal insane for an examination of his mental condition and fitness to be at large. If the physician shall certify to the warden that there is reasonable cause to believe that such person has become sane since his commitment and is a safe person to be at large, the warden shall permit him to present a petition to the court that committed him, setting up the facts leading to his commitment, and that he has since become sane and mentally responsible, and is in such condition that he is a safe person to be at large, and shall pray his discharge from custody. The petition shall be served upon the prosecuting attorney of the county, whose duty it shall be to resist the application. No other pleadings than the petition need be filed, and the court shall set the cause down for trial before a jury, and the trial shall proceed as in other cases. The sole issue to be tried in the case shall be whether the person petitioning for a discharge has, since his commitment, *Page 341 become a safe person to be at large, and the burden of proof shall be upon him. If the evidence given upon his trial upon the criminal charge shall have been preserved by statement of facts or bill of exceptions as hereinbefore provided, either party may read such parts of that record as may be desired as evidence upon the hearing. The jury shall be required to find whether the petitioner has become sane since his commitment, is not liable to a recurrence of the mental unsoundness or relapse, and is a safe person to be at large. If they so find, he shall be entitled to a discharge. If not, his petition shall be dismissed, and he shall be remitted to custody. Either party may appeal to the supreme court from the judgment discharging the petitioner or remitting him to custody, in the same manner that appeals in other cases are taken. . . .
"Sec. 7. [§ 6971, Rem. Comp. Stat.] Should any criminally insane person discharged hereunder again become insane or mentally irresponsible, or be found to be an unsafe person to be at large because of mental unsoundness, the prosecuting attorney of the county from which he was committed may file a petition in the name of the state, setting up the facts leading to his commitment and subsequent discharge, and the relapse which is the basis of the petition. A warrant shall be issued for the defendant as in criminal cases, the defendant taken into custody, and the case tried to a jury, as in other cases provided herein;. . ."
[1] It is first contended, as against interference by prohibition with the assumed habeas corpus jurisdiction of the superior court, that this prohibition proceeding should be dismissed because relator, as prosecuting attorney for King county, is not a person beneficially interested in the continued confinement of Ruth Garrison as an insane person. In our prohibition procedure statute, referring to sections of Remington's Compiled Statutes, we read:
"§ 1027. The writ of prohibition is the counterpart of the writ of mandate. It arrests the proceedings of *Page 342 any tribunal, corporation, board or person, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board or person.
"§ 1028. It may be issued by any court, except police or justices' courts, to an inferior tribunal, or to a corporation, board or person, in all cases where there is not a plain, speedy and adequate remedy in the ordinary course of law. It is issued upon affidavit, on the application of the person beneficially interested."
It seems to us that relator, as prosecuting attorney for King county, is, in his official capacity, a "person beneficially interested" in the lawful confinement of Ruth Garrison as a criminally insane person; and that, when it is sought to discharge her from confinement as such by any judicial proceeding, it becomes his duty to resist such attempted discharge if he is of the opinion that she is not lawfully entitled to such discharge. If she were seeking her discharge by the procedure prescribed by the above quoted § 6 of the act of 1907, her petition would have to be served upon the relator as the prosecuting attorney for King county, "whose duty it shall be to resist the application," using the language of § 6 of the act. Besides, if she had been discharged because of becoming sane since her commitment and had again become insane, it would, by the above quoted language of § 7 of the act, have been the duty of relator, as prosecuting attorney, to file a petition in the superior court for King county and conduct a prosecution therein looking to her recommitment. Plainly, we think these statutory duties placed upon the prosecuting attorney express a legislative intent that he shall be considered as having a beneficial interest for the public warranting him in resisting, by prohibition if necessary, the discharge of one duly committed as a criminally insane person. We conclude that relator is a person officially, beneficially *Page 343 interested, and as such is qualified to maintain this prohibition proceeding.
[2] It is contended in support of the superior court's habeas corpus jurisdiction that the statutory remedy prescribed by § 6 of the act of 1907 and habeas corpus are concurrent remedies, either of which a person committed as a criminally insane person has the right to choose and invoke looking to his discharge. By the above quoted § 4 of the act of 1907, we have seen that a person acquitted upon his trial and there found to be a criminally insane person shall be committed as such "until such time as he shall be discharged as hereinafter provided." Then follows in § 6 of the act the prescribed procedure, including trial by jury, for the determination of his claimed right to be discharged.
Manifestly, the legislative intent is that this statutory remedy shall be exclusive. In opposition to this view, there is cited the following very general language from the text of 12 R.C.L., p. 1186:
"The existence of a statutory remedy whereby a person restrained of his liberty may be released is usually held to be cumulative and not exclusive."
The decisions of the courts seemingly justifying this general statement, as we are at present advised, have to do with administrative methods and remedies, and not judicial remedies, looking to the discharge of persons committed as insane persons. In such cases habeas corpus is generally held to be a concurrent remedy for want of any other judicial remedy; the view being, as we read the decisions, that a person committed as an insane person cannot be deprived of all judicial remedy looking to his discharge.
So, if there be no statutory judicial remedy, habeas corpus is necessarily the proper judicial remedy. Our decision in State exrel. Thomson v. Clifford, 106 Wn. 16, *Page 344 179 P. 90, recognizes this to be the law, there being no statutory judicial remedy available to the committed insane person, who was not one committed as criminally insane, there seeking his discharge upon the ground of his becoming sane; though it was there held that he could not invoke even the judicial remedy of habeas corpus until his available administrative statutory remedy first be invoked by him and had failed him. A somewhat exhaustive note in 1 L.R.A. (N.S.) 547 lends support to our present expressed view.
[3] It is further contended in support of the superior court's habeas corpus jurisdiction that in any event it has such jurisdiction to determine Ruth Garrison's claimed right of discharge, because she has been unable to procure a proper certificate from the physician to the warden as to her becoming sane and a safe person to be at large, as authorizes the warden permitting her to present to the superior court for King county a petition for her discharge.
It is argued that the above quoted certificate of the physician to the warden is not sufficient for that purpose, because it does not certify that the physician believes that she "has become sane since her commitment." He only knew of her mental condition during the period after the expiration of several months following her commitment, he not having any connection with the penitentiary except since then. His certificate that he believes her to have been sane and a fit person to be at large during the several years of his observation of her is based wholly upon his knowledge acquired during that period. This, it seems to us, satisfies the statutory requirement as to the physician's certificate, sufficient to call for the warden's permitting her to present a petition to the superior *Page 345 court for King county looking to the determination of her claimed right to be discharged.
Against this view, it is argued that this certificate is insufficient as a basis for her petitioning the superior court looking to her discharge under the provisions of the act of 1907, to the same extent as the one she previously obtained in that behalf; which certificate we held in State v. Garrison,137 Wn. 577, 243 P. 373, to be insufficient as a basis for her so petitioning the superior court. That certificate, in so far as quoted in that decision and in so far as need be here noticed, reads:
"`He [physician] has had the defendant Ruth Garrison, No. 8762, an inmate of the criminal-insane ward at the said Washington state penitentiary, under his continued observance over a period of five years last past; that is, since her incarceration in said institution, and that he hereby certifies that she is at the present time sane and in all respects a normal person; that her insanity, if any ever existed, is not likely to recur; . . .'"
That certificate purports to have been made by a physician having Ruth Garrison under his observation since her commitment, so he was manifestly able to state whether there had been any change in her mental condition after her commitment; that is, as to whether or not she had become sane after her commitment. Failing to so certify, we held that certificate to be insufficient.
That case was correctly decided, and we adhere to all that was said in that decision. Here we have a physician's certificate made ten years after her commitment as a criminally insane person, certifying that she has, in the opinion of the physician, been sane and a safe person to be at large during the period he has had observation of her, he having no knowledge of her *Page 346 previous mental condition. This, we think, should be considered as a certificate of her becoming sane since her commitment. To read literally the certifying statutory quoted words, "has become sane since her commitment," and require a certificate in those exact words, as applicable to Ruth Garrison under the circumstances here shown, would probably forever deprive her of the benefit of the procedure under the act of 1907.
So we conclude that she can proceed under that act, and that therefore she is not entitled to relief by habeas corpus because of want of a proper physician's certificate enabling her to have the question of her discharge judicially determined by the superior court for King county, as provided by that act. There was not presented in State v. Garrison, 137 Wn. 577,243 P. 373, nor is there here presented, any question of the physician's arbitrarily refusing to make a proper certificate. If such question were presented, it might well be argued that he could be compelled to act in that behalf, or that the committed person would be privileged to proceed in the superior court under the act of 1907 as though such proper certificate had been made by the physician, upon the committed person's making proper showing in that behalf. Our decision in State v. Saffron, 146 Wn. 202,262 P. 970, is of interest in this connection. However, we need not here pursue that inquiry.
[4] It is further contended in support of the superior court's habeas corpus proceeding that, because the warden has refused to permit Ruth Garrison to present a petition to the superior court for King county looking to her discharge, the statutory judicial procedure prescribed by the act of 1907 is unavailing to her, and that therefore she has the remedy of habeas corpus available to her. Section 6 of the act, as *Page 347 we have seen, provides that, upon the making of a proper certificate by the physician, "the warden shall permit him [committed person] to present a petition to the court that committed him." This duty of the warden is manifestly mandatory, ministerial, and not discretionary. So we are clear that the refusal of the warden to so act upon a proper certificate is no impediment to the presenting to the superior court of a petition by or in behalf of the committed person looking to his discharge, further than that it might be rendered necessary for the court, by appropriate coercive process, to compel the warden to produce the physician's certificate and render it available to the committed person, and also to produce the petitioner in court for trial upon the question of restored sanity.
Finally, we conclude that the act of 1907 furnishes to Ruth Garrison, as a committed criminally insane person claiming to have become sane and a safe person to be at large, an adequate judicial remedy which renders it unnecessary for her to resort to a habeas corpus proceeding looking to her discharge, and that therefore that statutory judicial proceeding is her exclusive remedy. It follows that the superior court for Walla Walla county should be prohibited from further proceeding in the habeas corpus proceeding pending therein, because that proceeding is in excess of its jurisdiction. It is so ordered. Let a writ of prohibition issue accordingly.
MITCHELL, C.J., BEALS, HOLCOMB, and MAIN, JJ., concur.