155 P. 271 | Mont. | 1916
delivered the opinion of the court.
The relator, E. N. Brandegee, shows to this court: That he is, and since August, 1915, has been, the duly appointed and acting guardian of the person and estate of Mary Murphy, judicially declared incompetent; that on January 10, 1916, Anna E. Nett, daughter of said Mary Murphy, filed in the district court of Lewis and Clark county a petition, alleging, in substance, that said Mary Murphy is illegally imprisoned and restrained of her liberty by the relator, under the pretense that she is incompetent to take care of herself and of her property, whereas she is now competent and capable of taking care of herself and her property, and praying the issuance of a writ of hateas corpus, to the end that she be released from such restraint; that on the same day such writ was ordered to issue by Honorable J. M. Clements, one of the judges of said court, and was issued returnable January 11, 1916, at 2 o’clock P. M.; that the writ was served the day of its issuance, and the relator thereupon filed in said court his affidavit imputing bias and prejudice to Judge Clements, under the provisions of section 6315, Bevised Codes, as amended; that Judge Clements has failed to call in another judge to hear said matter, but threatens to, and, unless prevented by this court, will, proceed to hear the same himself, without jurisdiction so to do, and to the prejudice of relator and his ward.
Upon the filing of this petition an alternative writ of prohibition was issued, which respondent has moved to quash, for that the petition herein does not state facts sufficient to justify any interference by this court, is premature, and is an impairment of the efficiency of the writ of habeas corpus. Upon this state of the record the matter was heard and submitted: the principal
The notion that habeas corpus is a special proceeding of criminal nature is based upon the fact that the statutory provisions relating to it are found in the Penal Code, in a title headed “Special Proceedings of a Criminal Nature” (Rev. Codes, secs. 9630 et seq.), and upon some expressions found in State ex rel. Jackson v. Kennie, 24 Mont. 45, 60 Pac. 589, and State ex rel. Hepner v. District Court, 40 Mont. 17, 104 Pac. 872. These circumstances are to be considered, but they are not to be given weight beyond their due. The provisions for the writ of habeas corpus were not enacted, in the first instance, as part of our present Codes or of the Codes of 1895, but antedate them, and the inclusion of them in the Penal Code under the title heading “Special Proceedings of a Criminal Nature” was primarily the codifiers’ solution of a question which has always been vexatious in Code making, viz., the question of classification. The legislature, recognizing this, especially enacted in subdivision 3, section 3562, that the classification of the several parts of the four Codes is to be regarded as made for convenience and orderly arrangement only, and no implication or presumption of legislative construction is to be drawn therefrom. So that, whatever persuasive force may be given to collocation in determining the scope and meaning of particular statutes, the essential nature of a remedy recognized or conferred is not to be settled by considerations of this character alone. The expressions relied on from State ex rel. Jackson v. Kennie are neither definite nor decisional; while State ex rel. Hepner v. District Court simply holds that the statute does not provide for the disqualification of a judge by the state in a habeas corpus proceedings—an indisputable proposition, grounded, however, in the obvious fact that the state is not a party to such proceeding, rather than in any notion that the proceeding is criminal in its nature. The matter, however, is not res integra in this state. All the statutory provisions we now have which can in any wise characterize the proceeding as
It is suggested by the respondent that this conclusion tends
The suggestion that the proceeding in this court is'prema.ture
It is therefore ordered that a peremptory writ issue prohibiting the respondent from proceeding further in the matter referred to, save to transfer it or set it for hearing and call another judge to hear the same.
Writ Issued.