The opinion
The plaintiff seeks to recover a sum of money deposited with the defendant savings bank in the name and on account of Ida Jetter, who subsequent to the opening of the account married Frank Sporza, the plaintiff, and became known as Ida Sporza. In May, 1906, Dr. William Mabon, the superintendent of the Manhattan State Hospital at Ward's Island, New York, presented a petition to the Supreme Court in the first judicial district, applying for the appointment of a committee of the estate of Ida Jetta under the provisions of section 2323 and section 2323a of the Code of Civil Procedure. The petition alleged "that the above named Ida Jetta is an incompetent person and has been lawfully committed to the Manhattan State Hospital at Ward's Island, New York, in *Page 23
the manner provided by the State Insanity Law, * * * that said Ida Jetta is now an inmate thereof * * * that the patient has $1,263.36 in the German Savings Bank as evidenced by bank book No. 369,363, and that said Ida Jetta has no other property, real or personal, * * * and that said Ida Jetta is now maintained and supported by the people of the state of New York in said hospital as a public charge." Copies of the petition and a notice of the motion to be based thereon for the appointment of a committee were served personally upon Ida Jetter, otherwise known as Ida Sporza, at the Manhattan State Hospital, and upon the officer in charge thereof and upon Frank Sporza, the husband; and upon the return day an order was made and entered appointing Frank Sporza committee of the estate of the incompetent person upon giving the security required by law. In this order the name of the incompetent person was erroneously given as Ida Jetta instead of Ida Jetter, but this error was corrected by a subsequent order which the court undoubtedly had power to make.
The German Savings Bank resists the claim which the committee thus appointed now makes to the money deposited with it on account of Ida Jetter, upon the ground that section 2323a of the Code of Civil Procedure is unconstitutional because it assumes to empower the Supreme Court to appoint a committee of the person or property of an incompetent person or of both without the intervention of a jury.
The Constitution of New York adopted in 1777 contained the following provision preserving the right of trial by jury: "Trial by jury in all cases in which it hath heretofore been used in the colony of New York shall be established and remain inviolate forever." By the Constitution of 1821 the form of this provision was changed so as to read as follows: "The trial by jury in all cases in which it has been heretofore used shall remain inviolate forever." This provision is the same as that contained in the present Constitution having been retained by the constitutional conventions of 1846 and 1894. (Const. of 1894, art 1, § 2.) In Wynehamer v. People ( 13 N.Y. 378 , 427 ), *Page 24
a case which arose while the Constitution of 1846 was in force, it was said that the word "heretofore" in the constitutional provision relating to trial by jury meant before 1846 and could not in order to limit its meaning be carried back to 1777 and confined to the cases which at that earlier period were triable by jury. Applying this rule of construction it would be sufficient to inquire in the present case only whether the trial by jury as a prerequisite to the appointment of a committee of a lunatic was in use prior to 1894, but if we find that such a trial was invariably required in the colony of New York and in England before the Constitution of 1777 was adopted it would necessarily follow that section 2323a of the Code of Civil Procedure is unconstitutional if that section must be construed as authorizing the appointment of a committee in the absence of a prior finding by a jury that the party whose person or property is to be affected is incompetent.
In England there has been considerable discussion as to what is the true origin of the authority of the Crown in respect to idiots and lunatics. Story, writing in 1835, said that the jurisdiction was usually treated as a special jurisdiction for many purposes derived from the special authority of the Crown in its sign manual to the chancellor personally and not as belonging to him as chancellor or as sitting in the Court of Chancery. But he concludes that "the Court of Chancery may be properly deemed to have had originally, as the general delegate of the authority of the Crown as parens patriæ, the right not only to have the custody and protection of infants, but also of idiots and lunatics, when they have no other guardians." (2 Story's Equity Jurisprudence [13th ed.], § 1362.) The legislature in this country has succeeded to the king as parens patriæ in reference to idiots and lunatics. ( Mormon Church v. United States, 136 U.S. 1 .) Blackstone discussed the custody of incompetent persons in a chapter entitled the King's Revenue, and also under the title "Suits by the Crown." He says that the last branch of the king's ordinary revenue "consists in the custody of idiots, from whence we shall be naturally led to *Page 25
consider also the custody of lunatics;" and in reference to the procedure in such cases he adds: "By the old common law there is a writ de idiota inquirendo (of inquiring concerning an idiot), to inquire whether a man be an idiot or not; which must be tried by a jury of twelve men; and, if they find him purus idiota (an absolute idiot), the profits of his lands, and the custody of his person may be granted by the king to some subject, who has interest enough to obtain them." In reference to lunatics as distinguished from idiots he states the practice as follows: "The method of proving a person non compos is very similar to that of proving him an idiot. The lord chancellor, to whom, by special authority from the king, the custody of idiots and lunatics is intrusted, upon petition or information, grants a commission in nature of the writ de idiota inquirendo, to inquire into the party's state of mind; and if he be found non compos, he usually commits the care of his person, with a suitable allowance for his maintenance, to some friend, who is then called his committee." (1 Blackstone's Com. 303, 304, 305.) It will be noticed that in reference to the writ de idiota inquirendo,
Blackstone states that it must be tried by a jury of twelve men. In another place, however, where he is discussing inquisitions of office as one of the common forms of suits by the Crown, he says that such inquiries concerning any matter that entitled the king to the possession of lands or tenements, goods or chattels, "is done by a jury of no determinate number; being either twelve, or less, or more." (3 Blackstone's Com. 258.)
Professor Pomeroy states the mode of exercising jurisdiction over persons of unsound mind in England as follows: "Some friend of the alleged lunatic addresses a petition to the chancellor personally, or other judge in lunacy; a special commission is thereupon issued, directing a judicial inquisition of the alleged lunacy, which inquisition is made by means of a jury, — a regular trial of the issues before a jury; their finding or verdict, so long as it stands unimpeached, and the inquisition is not superseded, is conclusive as to the status of *Page 26
the party. Upon the return of the commission and inquisition, if the party is found to be a lunatic, the chancellor or judge in lunacy appoints a committee in the nature of a guardian over the person and property of the lunatic. This committee, in his character as trustee, is, of course, under the supervision and control of the court of chancery." (3 Pomeroy's Equity Jurisprudence, § 1312.) It is true he supplements this description of the procedure by a statement that this special jurisdiction over the persons and property of lunatics is not generally possessed by the courts of equity in the United States as a part of the original inherent equitable jurisdiction; but that is not a question material to be considered here, inasmuch as the purpose of our inquiry is to ascertain the usage prevailing in this state at the time of the adoption of the several Constitutions guaranteeing the right of trial by jury in all cases in which it has heretofore been used; and it appears, so far as I have been able to discover, that the usage of our courts in the exercise of their statutory equitable jurisdiction over idiots and lunatics has always heretofore been in accordance with the former English practice as laid down in the authorities cited.
Further light on the English method of procedure may be found in Shelford on Lunacy, where it is said that when the king was informed that a person who had lands was an idiot or lunatic, the ancient mode of proceeding in order to ascertain the existence of the fact of idiocy or lunacy was to petition the lord chancellor suggesting idiocy or lunacy in a particular person, and thereupon to issue a writ to the sheriff or escheator of the county to try by a jury and personal examination of the party whether the suggestion was true or not. (Shelford on Lunacy, 79.) The inquisition was required to be under the seals of twelve jurymen, otherwise the officer by whom it was taken was liable under the statute (1 Henry VIII, c. 8) to a penalty of one hundred pounds. (Ib. 106.)
It is manifest that in England, up to a period long subsequent to the adoption of the New York Constitution of 1777, the verdict of a jury was essential to establish the status of a *Page 27
person alleged to be incompetent either as an idiot or a lunatic. Thus, in 1826, in a case in the House of Lords, Lord Chancellor ELDON declared it to be unquestionable that the Crown in England did not possess the power, except for temporary purposes, of taking upon itself the care of any individuals, either as to their persons or their property, on the ground that they were of unsound mind, without the verdict of a jury. ( Bryce v. Graham, 2 Wilson Shaw, 481, 517.) It is true that a change has since been effected in England by statute, and that under the Lunacy Act of 1890 an inquest may be held before a judge in lunacy without a jury where the alleged lunatic does not demand one, or the judge is satisfied by a personal examination that he is not mentally competent to form and express a wish in that behalf and it appears unnecessary or inexpedient that the inquest should be before a jury. (53 Vict. chap. 5, §§ 91, 92.) This alteration in the English practice cannot affect the question under consideration here, where our Constitution requires a trial by jury in all cases in which it has heretofore been used, the answer to that question depending, of course, upon the condition of the law in this state or colony before the adoption of the Constitution.
In those states in which it has been held that the constitutional right of a trial by jury does not apply to cases of lunacy the language of the Constitution differs from that used in the Constitution of this state. Thus, in Wisconsin, where the Constitution provided that the right of trial by jury "shall remain inviolate and shall extend to all cases at law without regard to the amount in controversy," it was held that a proceeding for the appointment of a guardian for an insane person was not a case at law, and that at the time when the Constitution was adopted the power to appoint guardians for insane persons was vested in the judges of probate who might act without calling in a jury to determine the question of insanity. ( Gaston v. Babcock, 6 Wis. 503 .) So in Iowa it has been held that the constitutional right of trial by jury applies only to criminal prosecutions or accusations for *Page 28
offenses against the criminal law and that an inquest of lunacy was not a criminal proceeding. ( In re Bresee, 82 Ia. 573 .) And in Mississippi an inquisition of lunacy before a jury of six men was held to be constitutional because an inquest before a jury of that number was authorized by statute at the time when the Constitution was adopted. ( Fant v. Buchanan,
17 So. Rep. 371 .) I cannot see how any of these decisions or others of like purport affect the construction to be given to our own Constitution. That the guaranty of the right of trial by jury in the Constitution of this state does not apply merely to criminal cases but embraces other proceedings was expressly determined by this court in Colon v. Lisk ( 153 N.Y. 188 ) and is assumed by the discussion in the case of Malone v. Sts. Peter and Paul's Church ( 172 N.Y. 269 ).
The Constitution of New Jersey provides that the right of trial by jury shall remain inviolate. In that state prior to 1887 the number of jurors who sat upon the trial of the issue of incompetency in the case of an alleged lunatic, varied from twelve to twenty-three. Thus, in Matter of Runey Dey ( 9 N.J. Eq. 181 ) twenty-three jurors concurred in the finding of lunacy and in Matter of Vanauken ( 10 N.J. Eq. 186 ) twenty-one jurors were sworn and twenty signed the return. In 1887, however, the legislature passed an act directing the sheriff to summon only twelve jurors instead of twenty-four to inquire into and find the truth of the matters involved in a commission relating to the competence of alleged idiots and lunatics. It was contended in the case of De Hart v. Condit ( 51 N.J. Eq. 611 ) that the act violated the right of trial by jury as guaranteed by the New Jersey Constitution. In that case the jury consisted of only twelve men all of whom concurred in the finding. The Court of Errors and Appeals refused to disturb the inquisition. "If we assume," said DIXON, J., "that the constitutional provision applies to proceedings of this nature, still this statute does not infringe upon it for the reason that prior to the adoption of the constitution the party had no right to trial by more than twelve jurors." He cites the statements of Blackstone, to which I *Page 29
have referred, and declares that in practice any number of jurors not less than twelve nor over twenty-three has been considered adequate.
A careful examination of the New York statutes and decisions bearing upon the subject leaves no doubt in my mind that prior to the Constitution of 1846, and since then until the enactment of section 2323a of the Code of Civil Procedure, the courts in this state have not assumed jurisdiction to appoint a committee of the person or estate of an incompetent person, in the absence of a finding by a jury in a proceeding in the nature of a writ de lunatico inquirendo .
By chapter 30 of the Laws of 1801 it was provided "that the chancellor shall have the care and provide for the safe keeping of all idiots and lunatics and of their real and personal estates and for their maintenance, and also for the maintenance of the families of such lunatics and the education of their children out of the personal estate of such idiots and lunatics and the rents and profits of their real estates respectively, having regard to the amount and value of the same and shall take care that the same shall not be wasted or destroyed." By the Revised Statutes which took effect on January 1, 1830, the same provision was substantially re-enacted; but extended so as to embrace not only idiots and lunatics, but "persons of unsound mind and person who shall be incapable of conducting their own affairs in consequence of habitual drunkenness." (2 R.S. 52.) After the adoption of the Constitution of 1846 the judiciary act of 1847 transferred to the new Supreme Court the jurisdiction then possessed and exercised by the old Supreme Court and the Court of Chancery, including that of the chancellor and vice-chancellors. (Laws of 1847, chap. 280.) The act to revise and consolidate the statutes of the state relating to the care and custody of the insane passed in 1874 conferred in express terms upon the Supreme Court jurisdiction over the care and custody of all idiots, lunatics, persons who shall be incapable of conducting their own affairs in consequence of habitual drunkenness and of their real and personal estates. (Laws *Page 30
of 1874, chap. 446.) This provision was re-enacted in section 2320 of our present Code of Civil Procedure which, however, extended the jurisdiction still further to cases of "imbecility arising from old age or loss of memory or understanding or other cause." The New York procedure in this class of cases is clearly stated in Barbour's Chancery Practice (2d revised edition, vol. 2, p. 228), and also by Judge WILLARD in his treatise on Equity Jurisprudence which has special reference to the law of New York. (Willard's Equity Jurisprudence [Potter's edition], pp. 681, etc.) The first step was to apply for a commission in the nature of a writ de lunatico inquirendo . The petition was ex parte
but it had to be presented to the court on a regular motion day. The commission issued thereupon was substantially in the same form as that prescribed by the chancellor in respect to habitual drunkards in the appendix to the rules of the Court of Chancery. After a certified copy of the commission had been served upon the commissioners they were required to issue a precept to the sheriff of the county where the commission was to be executed requiring him to cause a jury of good and lawful men of the county to appear before them to inquire into the matters and things which should be given them in charge by virtue of the commission. Under this precept the sheriff summoned not less than twelve nor more than twenty-four jurors; and Barbour states that no inquest could be taken upon the oaths of less than twelve jurors. The testimony was then taken as upon a trial at law, and Judge WILLARD says the commissioner should thereafter submit the matter to the jury in the form of a charge, stating the law applicable to the case and recapitulating the facts if necessary but without arguments on either side. "Twelve of the jury must agree one way or the other, and if twelve cannot agree the jury must so report to the commissioners that their return may be made accordingly." If the inquisition found the alleged lunatic to be incompetent to manage himself or his affairs, it was still within the discretion of the court to set it aside and refuse to appoint a committee. *Page 31
The statutes to which I have referred and many of the decisions involving the jurisdiction of the Supreme Court as the successor of the Court of Chancery over the persons and estates of lunatics were reviewed and discussed with learning and ability by Mr. Justice CORNELIUS L. ALLEN in Matter of Hugh Payn, an alleged lunatic (8 Howard's Prac. Reports, 220). It is true that this is only a Special Term decision, but it is to be remembered that the judge who rendered it was subsequently a member of this court. After a careful consideration of the whole question he reached the conclusion that the Supreme Court had no jurisdiction to appoint a committee of a lunatic before a commission had been issued and an inquisition returned with a finding of lunacy by a jury. This decision was rendered in 1852. It clearly shows what the practice had been up to a period subsequent to the adoption of the Constitution of 1846. I cannot find that there has been any change in the practice since, except that the court is permitted, under section 2327 of the Code of Civil Procedure, instead of ordering that a commission issue, to direct that the question of fact arising upon the competency of the alleged lunatic may be tried before a jury at a Trial Term. The unvarying practice seems to have been to require a jury trial as a condition precedent to the appointment of a committee for the person or estate of a lunatic.
Reference is made to Matter of Wendell (1 Johnson's Chancery, 600) and Matter of Tracy ( 1 Paige, 580 ) as authorities for the proposition that the verdict of the jury in cases of this character is taken merely to inform the conscience of the court and not in recognition of an absolute right on the part of a person whose competency is assailed; but this view arises, I think, from a misapprehension of the question under discussion in those cases. In both of them an inquisition had already been had upon which a jury had found the party to be incompetent and the question under consideration was whether he should subsequently be allowed to traverse the inquisition and have the issue of lunacy again sent to a jury for trial. The observations of the court in *Page 32
these and similar cases, therefore, can have no application to the question presented here. The same is true in regard to Matter of Mason ( 1 Barb. 436 ), heard before Judge HARRIS at Special Term in 1847, although I cannot concur with the suggestion, which had no relevancy to the motion before him, that a case might be presented in which the evidence would be so clear and satisfactory as to justify the exercise of the summary power of the court to deprive a citizen of his liberty without the intervention of a jury.
In considering the question whether a finding of incompetency by a jury is a condition precedent to the appointment of a committee it is important to distinguish between proceedings having this end in view and proceedings instituted in the exercise of the police power for the temporary restraint of an insane person prior to the appointment of any committee. It is essential, of course, not only for the welfare of incompetent persons themselves but for the protection of their relatives and the community at large that authority should exist somewhere to restrain those manifesting evidence of insanity, to the end that they may be properly treated for the purpose of effecting a cure and to protect those who may be endangered by violence at their hands.
At common law any one, even though not a relative, might interfere to restrain an insane person who was dangerous to himself or others. ( Brookshaw v. Hopkins, Lofft, 243.) A dangerous maniac might always be restrained temporarily until he could be safely released or arrested by judicial warrant or committed to an asylum under legal authority ( Keleher v. Putnam, 60 N.H. 30 ), but when the immediate safety of the lunatic himself and others had been provided for the right of interference ended. ( Colby v. Jackson, 12 N.H. 526 .) The provisions of our Insanity Law (Laws of 1896, chap. 545, art. III) relating to the commitment of alleged incompetent persons upon medical certificates and similar statutory provisions generally are designed to effect the same object under legal sanction as was accomplished at common law by the interference of private persons to restrain a lunatic *Page 33
in order to prevent him from doing harm to himself or others. To this end persons alleged to be insane may be committed to institutions for the custody and treatment of such patients upon an order made by a justice of the Supreme Court or other judge of a court of record. Such commitment is based upon an order "adjudging such person to be insane upon a certificate of lunacy made by two qualified medical examiners in lunacy." (Laws of 1896, chap. 545, § 60.) The Insanity Law further provides (ib. 63) for an appeal from such order of commitment to a justice of the Supreme Court other than the justice making the order, who thereupon "shall cause a jury to be summoned as in case of proceedings for the appointment of a committee for an insane person, and shall try the question of such insanity in the same manner as in proceedings for the appointment of a committee."
The proceedings thus provided for by the Insanity Law are in no wise designed as a substitute for those upon an inquisition de lunatico inquirendo . The purposes of the Insanity Law are protective merely, although an order for a commitment thereunder is described as "adjudging such person to be insane." The order is not strictly speaking a judgment at all, for it does not affect the status of the person alleged to be insane. This has been held in regard to a similar statute in Massachusetts, where it was said: "The order of commitment settles nothing finally or conclusively against the person committed. It does not take from him the care or control of his property. It is not equivalent to the appointment of a guardian over him. He is entitled as a matter of right to institute judicial proceedings under the statutes, to determine the necessity and propriety of his confinement" ( Matter of Dowdell, 169 Mass. 387 .) Notwithstanding a commitment under the Insanity Law, a person thus committed remains liable to service of civil process (Code Civ. Pro. § 427), and until a committee has lawfully been appointed for him his legal right to control his property remains unaffected. The so-called adjudication made upon the certificate of the medical examiners in lunacy merely affords judicial warrant *Page 34
for the detention and treatment of the alleged incompetent in a state hospital or other institution licensed by the state for the care and treatment of the insane. The proceeding has no reference to the appointment of a committee. If a committee is sought to be appointed that object must be attained under the provisions of the Code of Civil Procedure, which, as we have seen, are derived from the practice existing in this state from the earliest times and which require a finding of incompetency by a jury either upon an inquisition or at a Trial Term of the Supreme Court. From no point of view can the privilege of a jury trial upon an appeal from an order of commitment under the Insanity Law be regarded as the equivalent of the right of trial by jury guaranteed by the Constitution. ( People ex rel. Eckerson v. Trustees Vil. of Haverstraw, 151 N.Y. 75 .) It is to be noted that the Insanity Law does not allow the alleged incompetent person to demand a jury trial upon appeal as a matter of right. Before the appeal can be heard at all the appellant must make a deposit or give a bond for the payment of the costs of the appeal if the order of commitment is sustained. (§ 63.)
Another point on this branch of the case requires to be noticed. It is suggested that this court has more than once said that our constitutional provision relative to trial by jury referred to a common-law jury of twelve men. ( People ex rel. Murray v. Justices, etc., 74 N.Y. 406 ; People v. Dunn, 157 N.Y. 528 .) That statement was perfectly accurate in the criminal cases in which it was made, but I cannot find in it anything which amounts to a denial of the proposition that if the right to a trial by a jury such as was customarily summoned under a commission de lunatico inquirendo existed before the Constitution, it is not equally preserved by the fundamental law. It is further to be observed that in such a jury, even though twenty-three might be summoned, the concurrence of twelve was necessary in order to constitute a legal finding.
I do not think there is anything in the opinion of Trust *Page 35 Co. of America v. State Safe Deposit Co . ( 187 N.Y. 178 ) which is necessarily in conflict with the views here expressed.
My conclusion is that if section 2323a of the Code of Civil Procedure is intended to apply to an incompetent person who has been committed to a state institution without an inquisition executed in the usual manner before a jury or without a jury trial of the issue of incompetency in court, then it is unconstitutional. If, however, it may be construed as applying only to persons who have thus been adjudicated incompetent by the finding of a jury but for whom no committee has as yet been appointed (by reason, for example, of no property being discoverable at the time of the inquisition), then it may be regarded as constitutional. I think it may be thus construed; and hence as it is not made to appear in the present case that the incompetency of Ida Sporza had not been ascertained and declared upon an inquisition by a jury or by a jury at Trial Term of the Supreme Court, it must be assumed that such was the fact. Upon this assumption the judgment below was right and must be affirmed.
GRAY, EDWARD T. BARTLETT, WERNER and HISCOCK, JJ., concur with HAIGHT, J.; WILLARD BARTLETT, J., concurs in result in opinion, with whom CULLEN, Ch. J., concurs.
Judgment affirmed.