614 PAYNE V. ARKEBAUER. [190 PAYNE V. ARKEBAUER. • 4-3791
Opinion delivered March 18, 1935. 1. INSANE PERSONS—NOTICE OF PROCEERINC.—An order of the 'probate 'court adjudicating a person insane arid committing her to the State Hospital is not void on its face Or violative of due process because made in ler absence and without notice to her, since she could appeal from the order and have a hearing.: . • 2. ' INSANE pERSON—NOTICS OF PROCLEDING.—A person charged with insanity must- be preSent in a proceeding for appointment of a guardian, but need not be present in a proceeding for commitment to . the State Hospital . for Nervous biseases: Appeal from Pulaski Chancery Court . ; Frank 11., Dadge, Chancellor; affirmed. Ebner Scho . agen, for appellant,: Frank C:Bolton and'Chas..B. Thwea t' t, for appellee. METiAfF y , J. The appellant, *On Noveniber '14, 1934, filed in the Pidaski Chancery 'Court her Petition for -a writ of habeas corpns, and stated that she was being unlawfully' depriVed of herAiberty and 'confined in the State'Hospital in tittle . Rock On the false charge that she is an insane perSon. 'She states 'that 'said false- ,charge was' made "by reason of a' 'certain committnent bY the Scott County Probate' . Court • o'n May 4, 1911. She -at-taches• a copy of ' said' order of commitment to her complaint. She alleges that the order is vOid, and that • it was made without a' Charge of inSanity having been filed in said court as provided by law ; that she was not exaMined• separately by ' tWo disinterested physicians as required by law, and that she Was gi'Ven 110 notice of such proceeding against, her ; that the' probate court gave her no hearing, and,. if any hearing was had, she waS not present, and that Sneh order fails to show her presence at the hearing. She states by Teason of these facts the' dtdei7 i void' on its fade, and that she is not an insane person and has neverl3een so . adjudged,' e.kcept in the void-proceedings. The order attached to the . complaint reads- as followS : •"On this 4th clay of'May, 1911, the matter of Martha Laura. Eli abeth Pa;ime, charged with-insanity coming on before the Conrt, on the charge made and the interrogatories taken by Drs. F. R. Duncan and L. D. Toolison on
PAYNE ' V. AR KEBAUER. 61.5 the- 3rd day of May, before J.'D. McEntire, J. P., and•the evidence taken by th'em;'the court is of the opinion that • the said• Martha Laura Elizabeth s Payne i g• inSane,-and it is• ordered and adjudged:by the . courtthat the said Mar-tha -Laura 'Elizabeth 'Payne- be -committed to •the- State HoSpital for Nervous Diseases at Little Rock, Arkansas, for care• and treatment.' -• . • • • "Giver} under my 'hand 'this , the- 4th day of May, • 1911." • . The appellee filed the following deinurrer :• "Respondent dethurs thapetitiOn for writ of habeas c.orpus arid says- for grounds thereof that-said petition does not state- facts sufficient to constitute a 'Can:se of' aCtion ; that said:petition and' the . exhibits attached thereto show on their face that the order of the ScottPrObate . CoUrt-mentiOned therein is' valid, -and:that the petitioner is-legally confined' in the State ! Hospital ' for Nervous-.Diseases."' The *case was' heard- on demurrer; mid, after hearing, the •• court•sustained the' . demurrer; petitioner declined to iplead further and eleded : to stand on her-petitioit The petition Was by -the . court 'dismissed for want of equity, and an appeal to this court was•prayed and granted. • The appellant statek in her reply brief : " The 'only 'question in this ca§e,taS 'made bY the petition and de-murrer and transeript iS whether . or riot the order . of adjudication and commitMent : attache'd . as. in eihibit is void ori its 'face. If so,' it- is , subject to collateral' attack of this petition. If itis not, then it is not subject tucol-lateral attack." ' , Appellant L.gues; 'fitst, that the . petitibner was' unlawfully depHved "Of-her liberty , ' WithOlit due-prodess of law, in violation:of 'bOth the 'State *and 'Federal . Constitutions: She calls' attention toc 5829 of 'Crawford &Moses' Digest. That Section is taken : from the• Revised Statutes of 1838; -and . it provides that the 'perSon -charged insanity shall be'brought before the- court;'and; in a proceeding under this statute, it would be necessarY for the coUrt order to' 4tow that theperson charged4ith insanity was brought before the . court.. 'Chapter 1 78' of :Revised Statutes, irom'which the above 'section is taken, 'does' not deal with the question of confining person8 iii the 'insane
616 PAYNE V. ARKEBAUER. [190 asylum. It is devoted exclusively to the care of insane persons and appointment of guardians for them, but it makes no provision for committing persons to the insane asylum. More than 40 years after the passage of the above statute, the Legislature, in February, 1883, passed an act providing for admitting persons to the State Lunatic Asylum. The title of the act is, " An Act to Provide for the Admission of Patients to, Their Maintenanc,e In, and Their Discharge from, the State Lunatic Asyluim." It will therefore be observed that each act is complete in itself, and the acts are for wholly different purposes. However, the appellant contends that this proceeding violates § 8 of article 2 of the Constitution of the State of Arkansas. Chief Justice ENGLISH, in discussing a law which was claimed to be violative of this provision of the Constitution, said: " The same objection might the urged to all . statutes which provide for arresting men accused of crimes, and depriving them of liberty, before trial and conviction. Persons charged with crimes are often denied bail, or unable to give it when allowed, and are imprisoned before trial and conviction." Allen v. State, 32 Ark. 241 ; Sumpter v. State, 81 Ark. 60, 98 S. W. 719; State Medical Board v. McCrary, 95 Ark. 511, 130 S. W. 544. It has been frequently held that the provision made for appeal, so that a party could be present and secure a trial by a jury, was not violative of the Constitution. Persons may be arrested and tried in the municipal court, where they are not permitted to have a jury, but are not deprived of their liberty in violation of the constitutional provision because they have a right of appeal. - Section 35 of article 7 of the Constitution of Arkan-sas provides : "Appeals may be taken from judgments and orders of the probate court to the circuit court under such regulations and restrictions as may be prescribed by law." Section 2258 of 'Crawford & Moses' Digest provides how appeals may be taken from the probate court. This statute was passed in 1909, and the order of the probate court complained about was in 1911. The appellant could
ARK.] PAYNE v. ARKEBAUER: 61.7 have appealed from the probate court to the circuit court, where she could have been present at the trial. Watson v. Bank, 154 Ark. 396, 243 S. W. • 844; Smith v. Fish, 182 Ark. 115, 30 S. W. (2d) 223. The Federal court quoted with approval the following from the case of Chevannes v. Priestly, 80 Iowa 316; 45 N. W. 766: " The provision of the Constitution that 'no person shall be deprived of life, liberty or property without due process of law' does 'not require notice to a person or his appearance before he can be lawfully adjudged insane and restrained accordingly." Hammon v. Hill, 228 Fed. 999. Ample provision is made by our statutes for a person charged with insanity to have the question inquired into. If the appellant was sane at the time the probate court made the order, she could have appealed from the order. If there were no provisions made whereby she could have had a hearing, there would be some reason to hold the statute void. • " The State may, both for the protection of society and for the welfare of an insane person himself, place such person under restraint. Inasmuch as immediate actions may .be necessary for the protection of the insane person and others, the guaranty of due process does not require notice to the alleged insane person and opportunity for a hearing as a condition precedent to temporary restraint." 12 C. J. 1211. It is also alleged by appellant that the order of the probate court was made without a charge of insanity having been filed in said court ;- that she was not examined separately by two disinterested_physicians, and that she. had no notice of the proceeding against,her, arid no hearing when she was present. The order itself " states -that appellant was charged with insanity,-and-the-matter coming before the court on the charge Made, and the interrogatories taken by Drs. Duncan and TOolison;:and the evidence taken by them, the court is Of . oPiniOn, etc : - As we have already stated, there are two separate statutes dealing with insane persons. One is the -statute to which attention has been called in the Revised Statutes. In proceeding under this statute it is neeessary foThave
618 [190 the party present in- court, but ;that is .a . proceeding for the appointment of a guardian.. The other statute, which prescribed the method of committing-persons to the 'insane asylum does not require the presence of the person charged .with insanity. • It can be readily seen that in many : instances it. would be necessary to act quickly and probably without the presenc , e of the person charged with insanity. This statute was enacted not only for. the. benefit . of.the byt.for the benefit of.the insane person as well.; • . . •If. thero Were no provision- by which appellant could . have a hearing and be present, the statute would be' void,. but; : since .there is .ample provision, we think the .statute is valid. ' • • • • The aPpellant was adjudged insane and committed: to the ineane asylum more than 23 years . ago: If she were. sane at that time;•she • Would have ta:ken stens tO secure her discharge either by appeal or requesting a hearing. But, so far as the record shows, no steps have been:taken by her for-more than 20 years. * She does not•contend that she has recoVered or been restored to sanity, but her only contentionis . that tho-order of the probate court is void. The decreo of* the s chancery court is affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.