MILLER, Associate Justice.
Charles Ellsworth Treibly, a lieutenant commander in the Navy, was placed on the retired list in November, 1922. In 1923, he was received at St. Elizabeths Hospital upon the order of the Secretary of the Navy. In 1926, he was released by an order of the District Court in a habeas corpus proceeding. This Court reversed the decision of the District Court
in 1927; and Treibly was received again at St. Elizabeths upon an order of the Secretary. In January, 1944, he sought release by a petition in which he recited that he had been confined by order of the Secretary under R.S. § 4843, that he was presently of sound mind and was confined without legal justification or excuse and against his will. Again, the District Court ordered his discharge and this appeal followed.
In White v. Treibly, this Court decided that the original commitment of petitioner was authorized by the statute. This result was not modified in any way by our decision in Barry v. Hall
upon which he relies. There we distinguished, expressly, the commitment of civilians from the commitment of retired officers in military service. So far, therefore, as concerns the commitment under which petitioner was held, our earlier decision properly stated the law. Whatever may be necessary by way of due process for a valid commitment of a civilian, the procedure authorized by the statute was sufficient in the present case.
This does not mean that the procedure of habeas corpus was not available to determine whether appellee’s original commitment had been arbitrarily made. However, it will have served that purpose so soon as the trial judge determines whether the order of the Secretary was issued after proper inquiry. A serviceman is in a different position than a civilian in this regard. Civilians have the privilege of refusing medical treatment even when it is to their best interests. A serviceman does not have that privilege because the Military takes, not only a disciplinary interest in him, but also a paternalistic one. A very substantial part of the casualties in this war will be psychoses from the strain of battle. It is the purpose of the Army and Navy that men, suffering from mental disease, shall not be turned back into civilian life until every possible effort has been made toward their rehabilitation and cure. In this war, more than in any other, it has been recognized that people suffering from mental disease should be placed in the same category with men wounded in battle or those who become sick or disabled in the Service, 'from other causes. It is true that there was an ancient stigma attached to mental disease which did not attach to physical disease. One of the things we must learn as a result of this war is that there is no legitimate ground for such a stigma. No conceivable purpose would be served by a federal court’s rejection of skilled military judgment on mental disease. At the end of this war, the military physicians will know more about psychosis than any other group.
To repudiate their judgment in favor of civilian psychiatric testimony would create a constant interference with the process of rehabilitation. Federal courts have no such competency in judging between psychoses or between the testimony of psychiatrists to make this a useful procedure.
Moreover, the procedure of habeas corpus was available to appellee as a means of testing his contention that sanity had been restored, and — if so — that appellant was without authority to hold him. It is conceded by appellant that the applicable statute authorizes him to hold only insane persons.
If appellee were j confined in a naval hospital under the supervision of naval officers, the courts would be barred from inquiring, not only concerning the treatment prescribed, no matter how long continued, but also concerning the results of the treatment and appellee’s present mental condition. Appellant concedes, however, that he detains the petitioner, not by virtue of his superintendence of a naval hospital, but, instead, under a statute which authorizes detention only of
insane
persons committed by both civilian and military authorities. As the statutes make no provision for re-examination of a person committed upon order of the Secretary of the Navy or for initiation, by the person committed, of a proceeding to secure such a re-examination,
the rule which we have
declared, recently, concerning the availability of habeas corpus to start the court’s machinery in motion,
for that purpose, is equally applicable in the case of appellee as of a civilian. For, without such a remedy, persons committed upon order of the Secretary of the Navy as well as those adjudicated insane in a proceeding de lunático inquirendo, might remain in confinement indefinitely, though in fact restored to sanity, with no legal means available to them for securing their discharge.
If appropriate legislation were enacted to correct this inadequacy
a remedy would thus be made available, the exhaustion of which could then, perhaps, be required before resort to the procedure of habeas corpus.
In the meantime, the procedure of habeas corpus makes available
the procedure de lunático inquirendo or of a re-examination by the Secretary of the Navy.
On the other hand, the issue of sanity or insanity cannot be determined on the merits in the habeas corpus proceeding, itself.. As we pointed out in the Barry case,
such a proceeding does not provide the type of hearing necessary for that purpose. As we indicated in that case, if a
petitioner makes a sufficient showing that he was committed improperly — because the proceeding for his commitment was improper in its origin — the judge may enter an order providing for the discharge of the petitioner unless within a reasonable time a proper proceeding is initiated.
Similarly, the judge in such a case as the present may properly enter an order of discharge, to take effect unless within a reasonable time the Secretary of the Navy-elects to re-examine the petitioner and to determine his present mental condition. If these orders for conditional discharge are properly used, petitioners may be detained for brief periods, for their own protection as well as for the protection of the public, just as in the case of one who is at large before proceedings of any kind have been commenced.
As we indicated in Wrobel v. Overholser,
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MILLER, Associate Justice.
Charles Ellsworth Treibly, a lieutenant commander in the Navy, was placed on the retired list in November, 1922. In 1923, he was received at St. Elizabeths Hospital upon the order of the Secretary of the Navy. In 1926, he was released by an order of the District Court in a habeas corpus proceeding. This Court reversed the decision of the District Court
in 1927; and Treibly was received again at St. Elizabeths upon an order of the Secretary. In January, 1944, he sought release by a petition in which he recited that he had been confined by order of the Secretary under R.S. § 4843, that he was presently of sound mind and was confined without legal justification or excuse and against his will. Again, the District Court ordered his discharge and this appeal followed.
In White v. Treibly, this Court decided that the original commitment of petitioner was authorized by the statute. This result was not modified in any way by our decision in Barry v. Hall
upon which he relies. There we distinguished, expressly, the commitment of civilians from the commitment of retired officers in military service. So far, therefore, as concerns the commitment under which petitioner was held, our earlier decision properly stated the law. Whatever may be necessary by way of due process for a valid commitment of a civilian, the procedure authorized by the statute was sufficient in the present case.
This does not mean that the procedure of habeas corpus was not available to determine whether appellee’s original commitment had been arbitrarily made. However, it will have served that purpose so soon as the trial judge determines whether the order of the Secretary was issued after proper inquiry. A serviceman is in a different position than a civilian in this regard. Civilians have the privilege of refusing medical treatment even when it is to their best interests. A serviceman does not have that privilege because the Military takes, not only a disciplinary interest in him, but also a paternalistic one. A very substantial part of the casualties in this war will be psychoses from the strain of battle. It is the purpose of the Army and Navy that men, suffering from mental disease, shall not be turned back into civilian life until every possible effort has been made toward their rehabilitation and cure. In this war, more than in any other, it has been recognized that people suffering from mental disease should be placed in the same category with men wounded in battle or those who become sick or disabled in the Service, 'from other causes. It is true that there was an ancient stigma attached to mental disease which did not attach to physical disease. One of the things we must learn as a result of this war is that there is no legitimate ground for such a stigma. No conceivable purpose would be served by a federal court’s rejection of skilled military judgment on mental disease. At the end of this war, the military physicians will know more about psychosis than any other group.
To repudiate their judgment in favor of civilian psychiatric testimony would create a constant interference with the process of rehabilitation. Federal courts have no such competency in judging between psychoses or between the testimony of psychiatrists to make this a useful procedure.
Moreover, the procedure of habeas corpus was available to appellee as a means of testing his contention that sanity had been restored, and — if so — that appellant was without authority to hold him. It is conceded by appellant that the applicable statute authorizes him to hold only insane persons.
If appellee were j confined in a naval hospital under the supervision of naval officers, the courts would be barred from inquiring, not only concerning the treatment prescribed, no matter how long continued, but also concerning the results of the treatment and appellee’s present mental condition. Appellant concedes, however, that he detains the petitioner, not by virtue of his superintendence of a naval hospital, but, instead, under a statute which authorizes detention only of
insane
persons committed by both civilian and military authorities. As the statutes make no provision for re-examination of a person committed upon order of the Secretary of the Navy or for initiation, by the person committed, of a proceeding to secure such a re-examination,
the rule which we have
declared, recently, concerning the availability of habeas corpus to start the court’s machinery in motion,
for that purpose, is equally applicable in the case of appellee as of a civilian. For, without such a remedy, persons committed upon order of the Secretary of the Navy as well as those adjudicated insane in a proceeding de lunático inquirendo, might remain in confinement indefinitely, though in fact restored to sanity, with no legal means available to them for securing their discharge.
If appropriate legislation were enacted to correct this inadequacy
a remedy would thus be made available, the exhaustion of which could then, perhaps, be required before resort to the procedure of habeas corpus.
In the meantime, the procedure of habeas corpus makes available
the procedure de lunático inquirendo or of a re-examination by the Secretary of the Navy.
On the other hand, the issue of sanity or insanity cannot be determined on the merits in the habeas corpus proceeding, itself.. As we pointed out in the Barry case,
such a proceeding does not provide the type of hearing necessary for that purpose. As we indicated in that case, if a
petitioner makes a sufficient showing that he was committed improperly — because the proceeding for his commitment was improper in its origin — the judge may enter an order providing for the discharge of the petitioner unless within a reasonable time a proper proceeding is initiated.
Similarly, the judge in such a case as the present may properly enter an order of discharge, to take effect unless within a reasonable time the Secretary of the Navy-elects to re-examine the petitioner and to determine his present mental condition. If these orders for conditional discharge are properly used, petitioners may be detained for brief periods, for their own protection as well as for the protection of the public, just as in the case of one who is at large before proceedings of any kind have been commenced.
As we indicated in Wrobel v. Overholser,
if a proper proceeding de lunático inquirendo has been initiated in the case of a civilian, but has been improperly carried out, the judge, to whom the petitioner has applied for relief by writ of habeas corpus, may direct that the original proceeding be reopened and carried forward to a proper commitment. In such a case, the procedure to determine mental capacity having been properly commenced and the equity court having taken jurisdiction of the person, he becomes a ward of the court, under the familiar doctrine of parens patriae;
the court then has continuing jurisdiction to reopen the matter whenever necessary ;
the necessity — or supposed necessity — having been called to its attention by a sufficient petition for habeas corpus, the judge, to whom the petition has been presented, should proceed as was done in the Wrobel case.
We said nothing to the contrary in Howard v. Overholser or De Marcos v. Overholser. The language which we used in the former
— that to a person under commitment “so much by way of legal capacity must be conceded to him * * * to
start the court’s -machinery in motion”
— and in the latter
— “Habeas corpus is a proper remedy to
challenge
the continued confinement” of such a person — was based upon the inadequacy of the law of the District — failing as it does to make available to a person detained a more direct procedure — and was intended to indicate the propriety of the procedure outlined in Barry v. Hall and Wrobel v. Overholser. [Italics supplied]
In a habeas corpus proceeding the court sits as a
court of law
to determine “in a summary way”
whether the petitioner is unlawfully restrained of his liberty.
In a lunacy proceeding, on the other hand, the court sits as a court of equity to determine whether a person is sane or insane; and in so doing it is — or should be — assisted by administrative officers and experts appropriate to such a court and to such a determination.
In De
Marcos v. Overholser,
particularly, we recognized these essential differences between the two issues and the two procedures. Thus, we noted that [1] in a habeas corpus proceeding the petitioner is not entitled to a jury trial,
although the Code expressly gives that right to a civilian when his mental capacity is placed in issue;
[2] in a habeas corpus proceeding it would be improper for a judge to require a mental examination if the petitioner does not desire it and declines to submit to such an examination,
although the very essence of a proceeding de lunático inquirendo is the discovery of mental capacity or incapacity, by careful examination of the person named in the writ;
[3] in the exceptional case where, upon consideration of a petition for writ of habeas corpus, “the record casts doubt on the judgment of those who hold the petitioner m confinement the court should compel him to undergo examination by the Commission on Mental Health ;”
in fact, the statute providing- for that Commission was passed “in recognition of the fact that the assistance of unbiased experts was essential to assist courts in dealing with insanity cases;”
but the statute also provides, expressly, that the Commission’s services shall be rendered in proceedings de lunático inquirendo
and
“in all respects under the direction of the equity
courf’;
hence, participation of the Commission would be improper in a habeas corpus proceeding, except for the limited purpose previously noted. [Italics supplied] Moreover, as we pointed out in the Howard case,
when a petition has been presented, legally sufficient on its face to start the court’s machinery in motion, the judge should appoint either a guardian or counsel to represent
the petitioner in the further stages of the proceeding. Anticipating this need, Congress provided in the District Code, for representation, in lunacy proceedings, not only of the person whose mental condition is in dispute,
but of those who appear as petitioners in such cases.
The judgment of the District Court, accordingly, must be conformed to the procedure indicated in this opinion. Its order of discharge will be withdrawn and, if the court concludes that a sufficient showing of present sanity has been made, an order will be entered providing for appellee’s discharge unless, within five days after its entry, the Secretary of the Navy directs that he be re-examined and recommitted, if found by the Secretary not to have recovered his sanity.
Reversed.