¶1*153
¶2On the 18th day of August, 1912, the plaintiff filed a petition for writ of habeas corpus before Hon. W. J. Springer, one of the judges of the district court in and for Clayton county, this being the county in which the judgment of commitment was entered, and the one in which she then resided. The application for the writ of habeas corpus states, and the fact appears to be, that she was committed to the care of the defendant on the 2d day of May, 1911, under said order for treatment. It is claimed that plaintiff is entirely cured of the morphine habit; that the defendant herein, the superintendent of the hospital, knowing that she is cured, refuses to restore her to her liberty or to discharge her from his custody, and that, therefore, her further confinement and custody in said hospital and her further restraint by the defendant are illegal. Plaintiff further alleges, in her application for the writ, as a reason for not making application to the nearest court or *154judge, that the judge to whom the application was made was most convenient, in that she can procure testimony at the time of hearing to much better advantage and with less expense than can be done in any other county in the state. There are other allegations in the application for the writ which are not material to this controversy, and are not, therefore, set out.
¶3Upon the filing of the petition aforesaid, Hon. W. J. Springer, on the 18th day of August, 1912, ordered that a writ issue in due form, as provided by See. 4423 of the Code, commanding this defendant to bring the plaintiff before him on the 17th day of September, 1912, at the hour of 9 o’clock A. M., to be dealt with according to law. On said date, the defendant herein appeared before said judge and filed the ' following motion, which was, on the same day, overruled:
“Comes now the defendant in the above entitled cause and moves the court to dismiss the petition of plaintiff filed herein and to remand the plaintiff to the custody of the defendant for the following reasons:
“1st. It appears by the allegations of said petition that the plaintiff was, at the time of the filing of said petition, confined at the State Hospital for Female Inebriates at Mt. Pleasant, in Henry county, Iowa, and it is not shown that said petition was presented to the court or judge most convenient to the applicant from the point of distance, as required by Sec. 4420 of the Code; nor is said action brought in the county where the cause arose, as required by Code Sec. 3494.
“2d. For the reason that this court has no jurisdiction to issue the writ of habeas corpus issued herein, because the judges of the district court of the judicial district in which Henry county is situated were, at the time said petition was filed and said writ issued, most convenient to the applicant in the point of distance.”
¶4Thereupon the defendant filed a motion for a change of vende from Clayton county to Henry county, supported by *155the affidavit of the defendant, in which he states that he is an actual resident of Henry county; superintendent of the Hospital for Females at Mt. Pleasant; that his official acts are performed in Henry county; that he was a resident of said county at the time the action was commenced; that the only restraint of the plaintiff made by him is as superintendent of the hospital, and at said institution. This motion being overruled, the defendant made his return to the writ, in which he admits the commitment and confinement of the plaintiff at the times and places alleged in her application, and further challenges the jurisdiction of Judge Springer to issue the writ, or to try, hear, or determine the issues involved; alleges that there are two judges of the district court, one residing in Mt. Pleasant, where plaintiff is confined, and one residing in Burlington, both of whom are more convenient in point of distance to the applicant than is Hon. W. J. Springer. Upon the filing of the said return, the defendant asked that plaintiff’s petition be dismissed; that she be remanded to his custody, to be detained by him in obedience to the writ of commitment. Thereupon the cause proceeded to trial upon the issues joined, and, upon such hearing, the plaintiff was discharged. From the action of Judge Springer in the premises, the defendant appeals, and assigns as error:
¶51. The court erred in overruling defendant’s motion to dismiss and remand.
¶62. The court erred in overruling defendant’s motion for a change of venue.
¶73. The court erred in assuming the power to determine the question of fact as to whether or not the plaintiff is cured, when this was solely a question to be determined by the superintendent of the inebriate department of the hospital.
¶8We shall consider these assignments in the order in which they were made.
¶9Division I. Did the court err in overruling the defendant’s motion to dismiss and remand?
¶10*156Section 4420 of the Code provides:
“Application for the writ must be made to the court or judge most convenient in point of distance to the applicant, and the more remote court or judge, if applied to therefor, may refuse the same, unless a sufficient reason be stated in the petition for not making the application to the more convenient court or a judge thereof. ’ ’
¶11The Supreme Court of this state, the district courts and the superior courts, and each and every judge of each and every one of these courts has jurisdiction to entertain an application for a writ of habeas corpus and to allow the writ upon a proper showing, and the writ, when issued, “may be served in any part of the state.” Section 4419 of the Code. We start, then, with the proposition that each of the district judges of this state is, by virtue of the statute, invested with the power to entertain an inquisition of this character, and, upon proper application, to issue a writ, which, when issued, may be served upon anyone within the limits of the state. Section 4420 puts some limitation upon the exercise of the power so invested, in so far as it says that the “application for the writ must be made to the court or judge most convenient in point of distance to the applicant.” It does not say, however, that a more remote judge, if applied to, may not issue the writ upon a showing that a citizen of the state is illegally deprived of his liberty. It does not assume to take from the more remote judge the jurisdiction given him under and by virtue of the provisions of Sec. 4419, but says that he may refuse to grant the writ “unless a sufficient reason be stated in the petition for not making the application to the more convenient court or a judge thereof.” The statute does not define what is meant by “ a more convenient court or judge, ’ ’ unless we infer, from what precedes, that it was intended by the legislature to mean in point of distance. The statute does not say that the application shall be made to the judge nearest in point of distance to the applicant, but to the one “most convenient in point of distance.”
¶12*157It has been held by this court that the applicant referred to in the statute is the party restrained of his liberty. Therefore it follows that the writ must be applied for to a judge most convenient in point of distance to the party restrained of his liberty. The thought of the legislature seems to be that the convenience of the party restrained is the controlling factor in the selection of the judge. In the application in this case, it was asserted by the applicant that Judge Springer, to whom the application was made, was more convenient to the applicant in point of distance. This allegation was based upon the alleged reason that a hearing before him would be more convenient, in that the testimony upon the hearing could be procured with less expense, and to much better advantage, than could be done in any other county in the state. The application, therefore, tendered a question of fact, upon which the judge was called upon to act, and upon .the proof of which rested his right to grant or refuse the writ. In assuming jurisdiction, he must have found this allegation to be true. Tie must have found affirmatively that it was more convenient to the applicant in point of distance to make the application to him, than to a judge nearer in point of distance.
¶13Cases may arise in which this is absolutely true, and the court, in passing upon the application, in a fair consideration of all conditions, might readily so determine. His determination of this question is made upon the allegations of the application. Does the fact, if it be a fact, that upon a hearing m this court it appears that his determination was not well founded, or that he erred in his determination upon this question, oust him of jurisdiction Í The Constitution of this state recognizes the writ of habeas corpus as an existing remedy in all eases in which it is properly applied for. The statute herein set out designates the courts or officers which may issue a writ. The statute does not attempt to point out, nor could it conveniently do so, all the cases in which the writ may be applied for or used. The proceeding is in the nature of an inquisition — to inquire into and determine, upon proper *158application, whether the party complaining is or is not unlawfully restrained of his liberty. The right to the writ antedates our Constitution and our statute. They attempt only to reassert the right and to maintain it inviolate, regulating, however, the manner of its use. Ve are, therefore, compelled to look to the common law, the statutes of the state and the decisions of the courts, to determine the cases in which the right may be employed and the manner in which the right to the writ may be exercised.
¶14The primary question, in all proceedings of this kind, is whether or not the applicant is illegally restrained of his liberty at the time the application is made. It is immaterial, so far as the right to the writ is concerned, whether or not he was originally restrained by criminal or civil process. The question to be determined upon the hearing is, Is he now lawfully or unlawfully restrained?
¶15The writ may be applied for and secured upon the application of the person confined, or the application may be made on his behalf by another, or the writ may be issued by the court on its own motion in a proper case.
¶16To entitle the applicant to the writ, there must be at least a prima-facie showing made in the application that the detention or confinement of the applicant is unlawful. Without such prima-facie showing in the application itself, the writ ought to be denied. This court, in the case of Ware v. Sanders, 146 Iowa 233, 240, speaking through Judge Weaver, said:
“Both by motion and in argument counsel for the State attack the jurisdiction of this court to entertain or pass upon plaintiff’s petition, because the application for the writ was not made to the court or judge most convenient to the petitioner, as provided by Code See. 4420. While the section referred to provides a general rule directing the application to be made to the most convenient judge, it does not expressly provide that such judge has exclusive jurisdiction, nor does *159it command the more remote judge to whom it may be presented to refuse the writ, but the language is that he ‘may refuse the same.’ The phrase ‘convenient in point of distance’ is one of quite indefinite meaning, and often might reasonably be applied to any one of several judges residing in different localities. The statutory restriction serves to put the judge upon his guard, and suggest inquiry into the propriety of his entertaining the proceeding and the good faith of the applicant in coming to him, but we think it is not a jurisdictional question. If, as is provided in some states, the statute required the matter to be first presented to a judge of the county or district where the plaintiff is restrained, an objection to an application first made elsewhere would raise a very different question; for, in such case, a territorial limit is clearly and explicitly defined, and no room is left for construction.”
¶17This language is in point here. The same issue was tendered there as is tendered here, and the decision sustained the right of a more remote court or judge to assume jurisdiction and determine the controversy there.
¶18It will be further noted that the statute says the application must be made to the judge “most convenient in point of distance to the applicant. ’ ’ The convenience of the applicant seems to be the controlling thought of the legislature in the selection of the judge. There is nothing in the statute indicating that the legislature intended that the convenience of the party charged with the illegal restraint should be considered. It therefore occurs to the mind that it is not a matter of which he can complain if the application is made to one, though not convenient to him, who is alleged to be and claimed to be, convenient to the applicant. The question of convenience to the applicant is a matter that affects him alone, and if it is inconvenient for him to select a remoter judge, it is not for the other party to make complaint. No right is given defendant to select, nor is his convenience provided for in the statute. *160There is no doubt that this provision of the statute is advisedly there, giving the judge the right to refuse to entertain the writ, if, in his judgment, it ought to be made to one more convenient to the place where the applicant is confined. Cases may arise in which it would be a great hardship to require one applying for a writ on behalf of the one restrained of his liberty to make application to the judge nearest to the place of confinement. For instance, in cases of children, where there is a separation of parties and the wife is given the control and custody of the child and has a right to the possession of it, and the father wrongfully removes it to some remote corner of the state, and there restrains it of its liberty, and denies the wife’s right to the possession; if, under such a supposable case, and one that may often arise, the wife should apply, on behalf of the child, for a writ of habeas corpus to the judge residing in the county from which the child was taken, and it should be made to appear that all the witnesses who were material to the proper determination of the rights of the parties to the possession of the child were residing in that county and were most convenient and accessible and most easily procured and with less expense upon a hearing there, and the judge should so find and issue the writ, could the party against whom the writ issues be heard to say: “True, I have wrongfully taken the child from the possession of the applicant and am wrongfully restraining him, but inasmuch as I have removed him to a remote comer of the state, and hold him in my possession there, and was so holding him at the time this writ was issued, the writ ought to be quashed as improvidently issued, because the application was not made to a judge most convenient, in point of distance, to the place where I was then unlawfully restraining the applicant of his liberty?” To hold that would be to say that it was the purpose and intention of the legislature that'the convenience of the wrongdoer should be considered, rather than the convenience of the one who is seeking the *161liberty of whieh he is alleged to be wrongfully deprived. The statute does not so provide.
¶19It is true that in this case, the applicant was originally rightfully in the possession of the defendant, and rightfully restrained of her liberty by him, because her restraint was secured, and authority to restrain given, under due process of law. But however rightful the original restraint may be, however right the restraint in its inception, may have been, it may become wrongful, and the right to restrain may terminate by the happening of subsequent conditions, or by the operation of the law itself upon the rights of the parties, and the question in all these cases is not whether the original restraint was rightful, but whether or not, at the time of filing the application for the writ, the applicant is wrongfully restrained of liberty, and this must be determined by the then conditions.
¶20From what has been heretofore said, it is apparent to us that Judge Springer, who issued the writ in this ease, had jurisdiction to issue the writ which the defendant sought, by his motion, to quash, and that there was no error in the court’s ruling on that point. As bearing upon this question, see Broomhead v. Chisolm, 47 Ga. 390. This case, though not exactly in point upon the question here raised, suggests, at least, the correctness of our conclusion. 3ee also Simmons v. Georgia Iron & Coal Co., 61 L. R. A. 739 (43 S. E. 780); Anderson v. Culver et al., 3 Practice Reports (Can.) 306.
¶21
“The writ should be issued, providing the petition contains the requisite matter, is in due form, duly authenticated, duly presented, and does not show on its face that the imprisonment, though complained of as illegal, is in fact legal.”
¶22*163It would seem, therefore, that it is the duty of thp court or judge to whom the application is presented, before issuing the writ, to inspect the application to see if it contains, sufficient averments, is in due form of law, and properly subscribed. If it does not, he should refuse to issue the writ. If it does, it is his duty to grant it. In Simmons v. Georgia Iron & Coal Co., supra, Justice Cobb, speaking for that court, said:
“We know of no law which authorizes either the person against whom the writ is prayed, or anyone else, to come into court and object to the issuance of the writ. There is no precedent for an objection of this character. It is a matter to be determined solely by the judge. And, even after the . writ is issued, and the respondent has appeared in answer to it, the sufficiency of the petition (to justify the issuance of the writ) cannot be tested by demurrer, though it seems that a motion may be made to quash the writ because of insufficient averments.”
¶23We are aware of what this court said in Thompson v. Oglesby, 42 Iowa 598. In that case, the application was made by one other than the person confined, and the question arose as to who should be considered the applicant in determining the venue, and it was there determined to be the party in whose interest the application was filed, and not the person making the formal application. The question here considered was not determined. It was assumed that the writ was wrongfully issued if not made by the judge nearest to the person in whose interest the application was made, and it was assumed that the evidence showing the legality of the imprisonment would be at the place where the applicant was restrained, and the court assumed that this provision of the statute as to the venue was made in the interest of the defendant, the party charged with the illegal restraint; for in that opinion it is said: “If the imprisonment is legal, the defendant should be allowed to show it with the least possible trouble and expense.” *164It is also said, — and in this there is a suggestion that the rights of the applicant ought to be considered: 1 ‘ There is no reason why his imprisonment should continue until he can be brought before some remote court or judge, wherever some person may happen to be who desires to present the petition in his behalf.” The court further said: “This case has been argued upon the supposition that if Hannah M. Thompson (mother of the person restrained, and the one who made the application) is not the applicant, within the meaning of the statute, the motion for a change of venue should have been granted. In our consideration of the case we shall proceed upon the same supposition.” The only question involved in that case, as appears from the statement of the issues, was not the jurisdiction of the judge granting the writ to issue it, but the right of the party against whom it was issued to have the venue or the hearing changed to the county in which the party was illegally restrained. We do not. think the question here presented was in that case involved in the issues considered or determined. It will be noted that, at the time this action was commenced, chapter 293 of the Acts of the Thirty-Fifth General Assembly was not in force, and the same rule applied to public officers and to the citizen alike.
¶24
“I, C. F. Applegate, being duly sworn, on oath state that I am now, and for more than eight years last past have been, an actual resident of Henry county, Iowa., and, during said time, have been superintendent of the State Hospital for Female Inebriates at Mt. Pleasant, Iowa, and all my official acts are and have been performed in said Henry county, and *165■was a resident of the said county at the time of the commencement of this action, and the issuance and service of the writ of habeas, corpus herein; and my only restraint of plaintiff has been as superintendent of said hospital; all of which is true as I verily believe.”
¶25This affidavit for the change rests entirely upon the thought that the defendant is a resident of Henry county, and is superintendent of the State Hospital for Females at Mt. Pleasant, in said county; that he was a resident of the county at the time the writ was sued out; and that the only restraint of the plaintiff by him was as superintendent of the hospital; and proceeds upon the theory that he is entitled to have the venue changed to the county of his residence. Now it is apparent that, if the court had jurisdiction of the subject-matter and of the parties, and had a right to issue the writ and the right to hear and determine the question involved, the fact that it would be more convenient for the defendant to have the hearing in the county of his residence would not be sufficient ground for changing the venue. There is no showing in the application for a change of venue that it would be more convenient for the applicant to have the hearing in Henry county, but it proceeds upon the theory that the statute requires the venue to be laid at a place nearest, in point of distance, to the place of confinement, and this the statute does not require. The judge to whom the application is made is invested with some discretion. Of course, it is a legal discretion, but the question as to whether he will assume jurisdiction or not, if he be the more remote judge, must be determined by him upon the application submitted and the nature and character of the investigation sought. It is not to be assumed that he will abuse his discretion in this respect and assume jurisdiction to the detriment of the public or to the embarrassment of the fair administration of the criminal laws or of the officers charged with their enforcement. The mere fact that the defendant is a nonresident of the *166county in which the judge resides, or in which the judge is at the time the writ is issued, the mere fact that there are judges nearer to the point where the plaintiff is restrained (and there is no showing of this fact in the affidavit for a change of venue) than the one issuing the writ, are not in themselves grounds for a change of venue.
¶26The defendant relies on Sec. 3504 of the Code of 1897 as giving him the right to the change in venue for which he applied. This statute provides:
“If an action is brought in a ivrong county, it may there be prosecuted to a termination, unless the defendant, before answer, demands a change of place of trial to the proper county, in which ease the court shall order the same at the cost of the plaintiff, and may award the defendant a reasonable compensation for his trouble and expense in attending at the wrong county.”
¶27The defendant also relies upon Sec. 3494, Code Sup., 1907, second division, regulating the place of bringing actions, in which it is provided that actions for the following causes must be brought in the county where the cause or some part thereof arose: “Those against a public officer or person specially appointed to execute his duties, for an act done by him in virtue or under color of his office. ’ ’ A casual reading of the statute authorizing the issuance of the writ will show that these limitations do not apply. There is no question, under this statute, that the plaintiff had a right to apply to Judge Springer, of Clayton county, for the writ. There is no question that he had a right to refuse the writ (though not obliged.to do so), if it was made to appear to him that there was another judge more convenient in point of distance to the applicant. There was invested in him, by the statute, a judicial discretion in the matter. An error of judgment on his part as to the existence of conditions which ought to suggest to1 him the propriety of refusing, even though such conditions were in the statute, would not oust him of *167jurisdiction, or a right to hear and determine the question. The legislature, in saying that he had a right to refuse the writ, — in saying that he may refuse the writ, not that he must refuse the writ, — evidently were not afraid that the judges of the district would abuse the discretion invested in them, to the prejudice of the public good, and we think we ought not to assume to entertain any such fear. The remoter judge, having jurisdiction of habeas corpus proceedings, and a right to entertain inquisitions of that character, may exercise that jurisdiction upon any showing which satisfies him that the interests of justice would be thereby more nearly attained. There is no limitation on the right of any judge of the district court of Iowa to issue a writ of habeas corpus on proper application, running into any part of the state. Indeed, that right is given him by the statute, and upon a proper showing for a writ, a wrongful or unlawful refusal to grant the writ subjects him to a penalty. But the legislature says that he must refuse the writ, even though properly applied for, if, from the showing of the petitioner, it is apparent that the petitioner would not be entitled to any relief, or he may refuse it, unless a sufficient reason be stated in the petition for not making the application to a more convenient judge or court.
¶28We think the motion for a change of venue was properly overruled.
¶29
“The court erred in assuming the power to determine the question of fact, as to whether or not the plaintiff is cured, when the matter was wholly for the determination of the superintendent of the inebriate department of the State Hospital.”
¶30This question was not involved in the motion to quash the writ, but appears only in the answer or return made by the defendant, and was made in the following language':
*168“The defendant further alleges that the plaintiff is not cured, and has never been found to be cured, either by the defendant, or by the board of control.”
¶31Whether this allegation in the answer was made for the purpose of tendering an issue of fact with the plaintiff as to whether she was cured or not, or whether it was intended to raise the legal question that the court had no jurisdiction to inquire into the fact whether she was cured or not, does not appear.
¶32
¶33In discussing this question as to the right of the court to hear and determine the question, the plaintiff relies upon Sec. 2310-al2 of the Supplement to the Code of 1907, as follows:
“The board of control of state institutions may discharge any person committed to a state hospital under the provisions of this act on the recommendation of the superintendent when satisfied that such person will not receive substantial benefit from further hospital treatment.”
¶34This has no application to the ease at bar.
¶35The plaintiff also relies on See. 2310-a3, which provides:
“If after thirty days of such treatment and detention a patient shall appear to be cured, and if the physician in charge and the superintendent of said institution shall so recommend, the governor shall parole said patient, provided *169that said patient shall pledge himself” as provided in said section.
¶36
“All persons confined as insane shall be entitled'to the benefit of the writ of habeas corpus, and the question of insanity shall be decided at the hearing. If the judge shall decide that the person is insane, such decision shall be no bar to the issuing of the writ a second time, whenever it shall be alleged that such person has been restored to reason.” (See. 2306, Code, 1897.)
¶37It will be noticed that the plaintiff herein was not ordered confined for any definite time. The order provided that she be confined in the hospital until cured, not exceeding three years. Whenever she was cured, she was entitled to be released. Any restraint after she was cured would be a violation of her constitutional right to liberty. These statutes relied upon do not provide any tribunal for determining whether a patient, confined in this hospital, is cured or not. Subdivision a3 of Sec. 2310 only provides for a parole by the governor in the event she shall appear to be cured, and the superintendent and physician recommend her parole. There is no provision for any hearing upon the question of an absolute cure, or her right to be absolutely discharged, upon a showing that she is cured, and there is apparent to us no more reason why a person confined in an insane asylum *170as insane should have a right to be heard in a proceeding of this kind, as to whether she is cured or not of her insanity, than there is for a hearing of the same character and kind where one is confined as an inebriate. As soon as cured, the purpose of confinement was accomplished. No longer was there any right, under the order or under the statute to confine her. When the right to confine expired, the right to her liberty arose. When this was refused, her right to the writ to determine her right to liberty was the only avenue of escape.
¶38Sec. 7, chapter 80, of the Acts of the Thirtieth General Assembly provides: “The term of detention and treatment shall be until the patient is cured, and not exceeding three years.” The provisions of this act are incorporated in the Supplement of the Code of 1907 as See. 2310-al2. The three-year limitation is a limitation upon the right to hold the patient whether cured or not. At the expiration of three years, whether the patient be cured of his malady or not, the right to hold him longer, under the order of commitment, expires. This statute gives a right, under proper order, to hold the patient until cured, but whether cured or not, not to exceed three years. The only provision of the statute authorizing the holding of an inebriate for a full three years is found in chapter 184 of the laws of the Thirty-Fifth General Assembly, which provides for the creation of a department to be known as the custodial department, and Sec. 2 of this act (See. 2310-a34, Code Sup. 1913) provides:
“Said department shall be for the confinement of all male persons hereinafter committed to said hospital who have been discharged under the provisions of Sec. 2310-al2, Supplement of the Code, 1907, all male persons committed to said hospital who are found by the court making the order of commitment to be habitual inebriates or drug habituates; and any person committed to the hospital who, in the judgment of the board of control of state institutions acting upon *171the recommendation of the superintendent, is believed to be a menace to the maintenance of the discipline of the hospital, and providing that patients of any department of the hospital who leave the institution or grounds thereof without due authority shall be subject to transfer to said custodial department upon the order of the superintendent of the hospital. ’ ’
¶39Section 3 (Sec. 2310-a35, Code Sup. 1913) provides:
“No person confined in the custodial department shall be released therefrom until he shall have remained a full term of three years.5 ’
¶40There is no claim in this case that the plaintiff herein should be held under any of the provisions of chapter 184 of the laws of the Thirty-Fifth General Assembly. Nor is the right to hold her based upon any of the provisions of this chapter.
¶41Upon a full consideration of this record, we are inclined to the opinion that the court did not err in discharging the plaintiff, and the cause, therefore, should be and is Affirmed.
¶42(dissenting). — I. The conclusion reached by the majority is fraught with such vital consequences that I cannot concur therein. Fortunately, the legislature has cured one of the mischiefs of the opinion by the enactment of Ch. 293, Acts of the Thirty-fifth General Assembly, making it impossible hereafter for inmates of inebriate asylums to commence actions of habeas corpus against the superintendents of the hospitals before any judge in any county of the state, no matter how remote, and compel him to go with all his witnesses to such remote court to resist the charge that an inmate has been cured of his habits and should be discharged. But for this providential act of the legislature, the superintendents of these hospitals would, under the majority opinion, have little time for anything else than to defend suits brought for these inmates; and would be subject to costs and other expense for which there seems to be no reimbursement from the state. *202Again, a refusal to discharge is not an adjudication save as to the condition on the day of trial, and there is no limit as to the number of actions that may be brought by such persons against the superintendents.
¶43Again, without any request from a patient for a parole, this patient may go to any part of the state, bring his action of habeas corpus, demand a trial and put the expenses upon the superintendent or perhaps upon the state, without any request whatever for a parole or conditional release. The effect of this holding upon the administration of our inebriate asylums is that efforts of the state to cure the liquor or drug habit might as well be abandoned. On the first proposition involved, in view of the recent act of the legislature, I would not dissent but for the fact that other actions, as by a parent to recover possession of his child and other actions of like nature, may, under the holding of the majority, be brought in the most remote county of the state, provided a district judge can be induced to grant the writ; and there is no way in which to reach an erroneous order for a hearing and trial in that remote county, although there is no shadow of excuse in fact for bringing it there. In this way, persons in close financial circumstances, having the rightful possession of a child in Fremont county in the southwestern part of the state, may be compelled, say, by the worthless father of a child, to appear before the district court of Allamakee county in the northeast corner of the state, and must pay the expenses of the trip, and doubtless, on request, advance witness fees. The attendance in the supposed case is compulsory, and, according to the opinion of the majority, there is no power to review the question of the right of the district court to issue the writ. I cannot assent to this conclusion.
¶44Section 4420 of the Code provides as follows:
“Application for the writ must be made to the court or judge most convenient in point of distance to the applicant, and the more remote court or judge, if applied to therefor, *203may refuse the same, unless a sufficient reason be stated in the petition for not making the application to the more convenient court or a judge thereof. ’ ’
¶45Under previous decisions, the applicant has been held to be the person whose liberty has been restrained, no matter who the plaintiff or relator. In the opinion of the majority, this provision as to who may issue the writ has always been the law. Of course, the Supreme Court, or a judge thereof, has jurisdiction co-extensive with the state. But this is not true as to district or superior courts or judges thereof. Their jurisdiction is limited to their respective districts, and, as a rule, to persons within their district. See Code, See. 225, et seq,, Sec. 260, et seq. In certain instances, cases may go on change of venue to other districts, as authorized by See. 249, Code, and judges may interchange and they may be assigned out of their regular districts. But the general rule is as above stated, and it requires a special statute to give them any other jurisdiction. Again, personal actions must be brought, as a rule, in the county where the defendants, or some of them, reside. And it is especially provided that actions against a public officer or person specially appointed to execute his duties, for an act done by him in virtue or under color of his office, or for neglect of official duty, shall be brought in the county where the cause, or some part thereof, arose. Code Sup., 1907, Sec. 3494. Under the latter statute, it was held that a writ of certiorari against the state board of health must be brought in the county where the board acted. College of Phys. & Surg. v. Guilbert, 100 Iowa 213.
¶46The statute giving jurisdiction to the district court in certiorari cases is quite as broad as the one giving such courts jurisdiction of habeas corpus matters, in that it says that the writ may be granted by any district court or judge thereof. Compare Secs. 4155 and 4419 of the Code. Again, as a rule, ^nder the law before its amendment, application must be made to the judge nearest in point of distance to the person *204whose liberty is restrained; and if for any reason he cannot or should not act, then to the next nearest in the district where the applicant resides; and if that one cannot or will not act, then possibly to the next nearest outside the district. That is what is held, as I understand it, in Thompson v. Oglesby, 42 Iowa 598. It makes no difference that the applicant has a legal residence in some other county; the test is the physical presence of the person whose liberty it is claimed was unlawfully restrained. In Thompson’s Case, the holding was that the petition should have been presented to the judge of the district court next nearest the person whose liberty was restrained, and it was there said:
“Again, the plaintiff and defendant, the person restrained and the person restraining, must be presumed to be together. The evidence, if any, showing the legality of the imprisonment would ordinarily be at the same place. If the imprisonment is legal, the defendant should be allowed to show it was with the least possible trouble and expense. If the imprisonment is illegal, the person restrained is entitled to his liberty at once. There is no reason why his imprisonment should continue until he can be brought before some remote court or judge, wherever some person may happen to be who desires to present a petition in his behalf. ’ ’
¶47Accordingly, the venue was ordered changed to the proper county on defendant’s motion.
¶48In the College of Physicians <& Surgeons Case, which, it is true, was certiorari, and not habeas corpus, but which, for reasons stated, is clearly analogous, the court, quoting the statute, which is the same as the present Code Sup. Sec. 3494, said:
“Under the facts as we have given them, there could be no doubt that such an action must be brought in Polk county, for the alleged illegal acts that constitute the cause of action occurred in that county, and consequently the cause of action *205arose there. But it will be seen that the action may be brought in the county where the cause of action or some part thereof arose, and it is thought that some part of this cause of action arose in Lee county. . . . It is urged that the state board of examiners is state-wide, and as much a resident of Lee as of Polk county. Admit this claim, and it does not affect the result. The jurisdiction does not depend on residence, but on the fact of where the cause of action arose. The law provides that the board shall hold meetings in different parts of the state, so as to best accommodate applicants; so that a cause of action is liable to arise in any county of the state, and the jurisdiction is not confined to Polk county, except when the act constituting the cause of action occurred in that county. We conclude that the proper venue of the action is in Polk county.”
¶49Ware v. Sanders, 146 Iowa 233, 240, contains nothing inconsistent with these views. All that the case really decides is that the Supreme Court, or a judge thereof, has jurisdiction in habeas corpus matters coextensive with the state. This remark from that opinion may be quoted as showing the appositeness of the College of Physicians Case:
“The right to issue the writ of habeas corpus, like that to issue the writ of certiorari, is a very appropriate, if not necessary, attribute of an appellate court under our system of government, which administers justice according to the principles of the common law. While it is often and truly said that habeas corpus cannot properly be made to serve the office of a writ of error, yet the power given to the Supreme Court to entertain such proceedings is a branch or phase of its appellate jurisdiction, and furnishes a direct and summary method by which, in the interest of liberty, the power and authority of an inferior court to render a given order or judgment by which a citizen is restrained of his liberty may be determined without delay. This view of the nature of habeas corpus proceedings in our court of last resort finds support *206in numerous precedents. For instance, in Clarke’s Case, 100 U. S. 399, 25 L. Ed. 715, the petitioner, being in custody under an alleged illegal process issuing from a trial court, applied to Justice Strong of the Supreme Court of the United States, who allowed the writ, but ordered the hearing to be had before the full bench. Objection being made to the jurisdiction, the court said:
“ ‘It is .clear that the writ, whether acted upon by the justice who issued it, or by this court, would in fact require a revision of the action of the circuit court by which the petitioner was committed, and such revision would necessarily be appellate in character. This appellate character of the proceeding attaches to a large portion of cases in habeas corpus, whether issued by a single judge or by a court. The presence of this feature in the case was no objection to the issue of the writ by the associate justice, and is essential to the jurisdiction of this court. The justice who issued it could undoubtedly have disposed of the case himself, though not at the time within his own circuit. A justice of this court can exercise the power of issuing a writ of habeas corpus in any part of the United States where he happens to be. But as the case is one of which this court also has jurisdiction, if the justice who issued the writ found the questions involved to be of great moment and difficulty, and could postpone the case here for the consideration of the whole court without injury to the petitioner, we see no good reason why he should not have taken this course, as he did.’
“In re Virginia, 100 U. S. 339, 25 L. Ed. 676, while suggesting in effect that if habeas corpus were to be classed as an original proceeding, there would be doubt of its jurisdiction, the court proceeds to say: ‘But the appellate power of this court is broader than its original, and generally — that is, in most eases — it may be said that the issue of a writ of habeas .corpus by us, when it is directed to one of our inferior courts, is an exercise of our appellate jurisdiction. ’ ”
¶50*207See also Rivers v. Mitchell, 57 Iowa 193.
¶51Authorities from other jurisdictions support the views herein expressed. Vide In re Jewett, 77 Pac. (Kans.) 567; Ex parte Ellis, 11 Cal. 222, 225; In re Doll, 50 N. W. (Minn.) 607; Barranger v. Baum, 30 S. E. (Ga.) 524. In re Jewett, supra, contains a learned discussion of the matter and cites many cases in support of the rule. State ex rel. Durner v. Huegin, 85 N. W. (Wis.) 1046 (62 L. R. A. 700), is also closely in point. See also Church on Habeas Corpus, Secs. 70-74.
¶52The fact that the legislature has passed the act already referred to is not, in my opinion, an answer to these views. No doubt the holding in this ease by the trial court was considered so mischievous and so embarrassing to the superintendents of our state hospitals, that the legislature, in the absence of a definite decision by this court on the subject (notwithstanding intimation in one of our cases already cited by me), concluded to set this matter at rest by framing the act in question, without in any manner intending to say that other actions of like kind, which might prove just as mischievous as this one, might be so brought, or intending in any way by entire inaction in those cases to justify the same. Rural School Dist. v. Dist. of Kelley, 120 Iowa 119. If anything is to be inferred from legislative inaction, it is that our pronouncement in Thompson’s Case, supra, and in College of Physicians v. Guilbert, 100 Iowa 213, construing the venue of habeas corpus and certiorari proceedings, was correct, for it did not at any time attempt to meet these interpretations of the statute, by amendatory legislation.
¶53There must be some way of reviewing the action of the district court in these matters, and I think it is either to dismiss or quash the writ or to transfer the case to the proper county for trial. It has been the custom of this court in the past, under its plenary power, to issue writs of habeas corpus and direct that they be heard by some district court judge nearest to the parties. This practice was at one time quite *208common, and it was rare indeed that this court or a judge thereof, either at Des Moines or at his residence, heard habeas corpus proceedings, for the very good reason that the parties should not be compelled to travel long distances and be at great expense in order to have a hearing.
¶54It must be remembered that, no matter by whom the action is brought, the applicant is the person who is restrained of his liberty, and the defendant is the person who is exercising the restraint. In this case, both were in Henry county, and no application was made to any judge save Judge Springer, in Clayton county, many hundreds of miles by rail from Mt. Pleasant. "Whether plaintiff was cured or not was not within the knowledge of persons living in Clayton county, for it was conclusively adjudicated that when they knew her she was addicted to the drug habit, and should be confined in an asylum. There could be no review of that finding upon habeas corpus. The only question, then, according to the majority of the court, was whether she was cured of her bad habits after she had been taken to Mt. Pleasant, and no one but witnesses who saw her after she had been taken to that place could give any opinion as to her recovery — and that was the only issue in the case — so that not only the parties but the witnesses were at Mt: Pleasant, and all were compelled to go to Clayton county to testify at the trial of the case. It is no wonder that the legislature interfered and, when its attention is called to the holding of the majority in this case, it will doubtless again interfere so that like mischiefs may not be perpetrated, when, for instance, some worthless vagabond of a father calls the mother of his child, who has the rightful possession of it, to defend her custody in the most remote part of the state on allegations that he lives in that remote county; that it will be more convenient for him to try it there and that his witnesses live in that county. At any rate, it is to be hoped that something may be done to forbid such a result.
¶55II. Aside from this, I think the majority have destroyed the most valuable feature of the inebriate law by permitting *209and suggesting to every dipsomaniac and every victim of the drug habit how to disregard the parole features of the law and encouraging them to bring as many actions of habeas corpus as they can induce attorneys to commence to secure their release, without any conditions or pledges whatsoever. Under allegations of a cure and without submitting the matter to the superintendent at all, any inmate may now secure a writ of habeas corpus and demand as many trials as he or his friends may be able to finance; for, upon such allegation, a proper court or judge must issue the writ. He has no discretion whatever in the matter, and is subject to a penalty if he does not issue it. The district judges in any of the districts where these hospitals are located will doubtless have their hands full in hearing habeas corpus actions.
¶56Plaintiff was committed as a victim of the morphine habit until cured, not exceeding three years. Her commitment was in April of the year 1911, and she made this application in August of the year 1912. She might have made it, if I understand the position of counsel, at any time after commitment, and as many times within the three years and is as many different districts as she could induce judges to grant her a writ. The defendant had not pronounced her cured, nor did he believe it safe to discharge her at the time this proceeding was commenced. The governing law in the case is found in Secs. 2310-al to 2310-a32, inclusive, Code Sup., 1907, relating to the detention and treatment of dipsomaniacs, inebriates and those addicted to the excessive use of narcotics. From thesp we extract the following:
“Sec. 2310-al. That the board of control is hereby directed to provide for the detention and treatment of dipsomaniacs, inebriates and persons addicted to the excessive use of morphine or other narcotics, in one or more of the hospitals for the insane at the discretion of said board. Said department thus provided for to be designated as a hospital for inebriates.
*210"Sec. 2310-a2. That all dipsomaniacs, inebriates and persons addicted to the excessive use of morphine or other narcotics, who shall be citizens of the state of Iowa and residents of the county from which they might be committed to the hospital for inebriates may be brought before the district court or judge of the county where they reside for examination and commitment to said hospital for inebriates. Their examination, trial and commitment shall be governed by the same statutes as now apply to and govern the examination and commitment of incorrigibles to the state industrial school. If it shall be determined by said district court or judge, that such person is addicted to dipsomania, inebriety or to the excessive use of narcotics, he or she shall be committed to such hospital for inebriates, as may be established by the board of control as above provided for. The term of detention and treatment shall be, for the first commitment not less than one, nor more than three years; and for the second commitment not less than two nor more than five years. The governor shall parole a patient on conditions named in the following section.
"Sec. 2310-a3. If after thirty days of such treatment and detention a patient shall appear to be cured, and if the physician in charge and the superintendent of said institution shall so recommend, the governor shall parole said patient, provided that said patient shall pledge himself or herself to refrain from the use of all intoxicating liquors as a beverage, or other narcotics, during the remaining part of his or her term of commitment, and shall avoid the frequenting of places and the association of people tending to lead them back to their old habits of inebriety. And shall send the following report on the first day of every month during term of parole to the governor, which report must be inquired into and approved as correct by the clerk of the district court of the county wherein the patient resides, and said patient shall furnish the clerk of the district court with satisfactory evidence of his sobriety and good habits.
*211“Beport of - to superintendent of hospital for inebriates at-Iowa.
“I, -being on parole from the hospital for inebriates at-Iowa, do-hereby certify that I have up to this date, being the first day of -, 19 — , refrained from the use of all intoxicating liquors as a beverage, and all narcotics of any kind whatsoever, except it be a moderate use of tobacco.
“I have carefully inquired into the record of --— as named above and do hereby certify that I believe the statements contained in his above report are true.
“Clerk district court of Iowa in and for-county, Iowa.
“Dated this-day of-, 19 — .
“And if at any time the patient on parole, for any reason fails to make the above report, the sheriff of the county wherein such patient resides shall without further writ or warrant, return said patient at once to the hospital from which he or she has been paroled on receiving notice of such failure from the clerk of the district court of the county wherein the patient resides, or any three reputable citizens thereof. And the patient so returned shall be detained and treated during the full term of his commitment.
“Sec. 2310-a4. That all statutes of the state providing for the trial, commitment, detention and treatment of incorrigibles sent to industrial schools shall be applicable to trial, detention and treatment of all patients committed under the provisions of this act, except in so far as they may be modified by the provisions of this act.
“Sec. 2310-al2. On-presentation of the application provided for in section six hereof, unless made in person by an inebriate, dipsomaniac, or user to excess of narcotic drugs, the judge shall issue an order, which may be served by any peace *212officer, directing him to bring the accused person before him for examination, and on his appearance, unless he demands a formal trial, the judge shall hear any evidence which may be adduced touching the accusation. The accused may be represented by counsel and the judge may, if he deems it necessary, require the county attorney of the county where the hearing is had to attend and assist in such hearing. In case said application be voluntarily or involuntarily made and the said judge shall determine that the accused is a proper person to be committed to said hospital, he shall make an order committing him thereto; otherwise he shall be discharged. The term of detention and treatment bhall be until the patient is cured and not exceeding three years. Provided that before a person shall be committed to a, state hospital for inebriates satisfactory evidence shall be submitted to the trial court or judge showing that the person committed is not of bad repute or of bad character apart from his or her habit for which the commitment is made and that there is reasonable ground for believing that the person if committed will be cured of such habit, and provided further, that the board of control of state institutions may discharge any person committed to a state hospital under the provisions of this act on the recommendation of the superintendent when satisfied that such person will not receive substantial benefit from further hospital treatment.
“Sec. 2310-al9. Any patient whom the superintendent believes to be cured may be paroled, conditioned on said patient’s signing a written pledge agreeing to refrain from the use of all intoxicating liquors as a beverage, and from the use of morphine and cocaine or other narcotic drugs during the term of his commitment, and shall avoid frequenting places and the association of people tending to lead him back to his old habits of inebriety. And said paroled patient must make written reports to the superintendent of said hospital at the beginning of each month on blanks to be furnished the clerk of the district court for that purpose, to the effect that he has not during the month past in any respect violated any *213of the terms and conditions of his parole, which reports must be investigated and approved by the clerk of the district court of the county in which the patient resides, who may demand from said paroled patient satisfactory evidence as to the truth of the statement. If, at any time, a patient on parole shall fail to make said report, or shall fail in any respect to fulfill all of thé conditions upon which said parole wTas granted, he may without any further proceeding whatever and on the written order of the superintendent of said hospital be taken and returned to the hospital, there to be detained and treated as provided herein. Said patient so violating his parole may be returned by any peace officer, or by any officer or person whom the superintendent of the hospital may direct so to do.
“See. 2310-a22. Females who are dipsomaniacs, inebriates or addicted to the excessive use of morphine, cocaine, or other narcotic drugs, may be committed to a state hospital for the insane to be designated by the board of control, for treatment, and all the provisions of this act, so far as applicable and except as modified by this section, shall apply in such cases and also to the eases of such females as may remain in the hospital for inebriates connected with any state hospital. ’ ’
¶57There is some confusion and apparent conflict in these provisions, but it is apparent from the original acts that Secs. 2310-a6 to 2310-a31, inclusive, save See. 2310-a22, have reference to male inebriates; while Secs. 2310-al to 2310-a5, inclusive, have reference to all inebriates, whether male or female, and the latter are either repealed or amended by the special statutes above referred to, applying to male inebriates only. It is a little difficult to harmonize Secs. 2310-a2, 2310-a3 and 2310-a4, and 2310-al2 and 2310-a22, relating to the manner of trial and term of commitment. As to females, the term is until the patient is cured, and not exceeding three years, and the parole provision as to males appears in Sec. 2310-al9.
¶58As I understand it, the provisions of Sees. 2310-al to 2310-a4 have reference to proceedings against females; the term *214of commitment and conditions for parole. On no other theory may they be harmonized. The males are kept together at the institution at Knoxville, and the females are sent to one or all of the state hospitals for the insane. Females are proceeded against as if they were ineorrigibles, or perhaps as males, by reason of Ch. 185, Acts Thirty-fifth General Assembly, and the term of commitment is not less than one, nor more than three years. Provision is made as to the parole of both males and females, and Sec. 2310-a3 relates to females, while Sec. 2310-al9 relates to males; unless perhaps, in view of Secs. 2310-al9, 2310-a22 and 2310-a27, the terms and conditions for parole should now be held to be the same whether the patient be male or female.
¶59While there may be some doubt about this being the true construction of the written laws upon the subject, it being our duty to harmonize them if possible, this opinion is not wholly based upon this construction. If I am right, the ease is easy of solution. The trial court on the original hearing should have committed the plaintiff for a definite time, to wit, not less than one or more than three years, and the effect of its sentence was to commit the plaintiff for three years. But the statute we have already quoted makes provisions for a parole after thirty days upon recommendation of the physician and superintendent in charge. This is to be given if, to the officers charged with such duty, the patient should appear to be cured, and then only upon certain pledges being made by the patient, etc. Provision is also made for the return of the patient in case of a violation of the pledge or of. any of the statutory conditions.
¶60If this be the law, then it is perfectly manifest that plaintiff in this case was not entitled to her discharge, and that the trial judge had no authority to release the plaintiff or to relieve her from her pledge or the statutory conditions. If he had this power, then he had power to abrogate statutory provisions without any authority.. These provisions were wise ones, made for the benefit, not only of the patient, but also *215of the general public. This “ticket of leave” could only be granted upon recommendation of the physician and superintendent, and the conditions imposed were due to the known fact that the drug habit is difficult to cure, and the victim uncertain, even though apparently cured.
¶61No court should assume to exercise this power for the physician and the superintendent, and even if it could, it should demand the pledge required of the patient as a condition to her release. Any other rule would entirely destroy the efficacy of the parole system. There is no claim that the superintendent acted fraudulently or corruptly, or that he refused to grant a parole under proper conditions, and we do not have these facts to consider, even if they might, under any circumstances, be taken into account.
¶62But assuming that Secs. 2310-a2, 2310-a3 and 2310-a4 have been repealed m toto, both as to males and females, and that the matter is governed by Secs. 2310-all, 2310-al2, 2310-al3 and 2310-al9, the commitment is until the patient is cured and not exceeding three years; and there is a provision for a parole at any time when the superintendent believes the patient to be cured, upon certain conditions and pledges. Of course, the superintendent’s belief as to cure is the equivalent, in his mind, to “cured”; and the law guards both the patient and the public by providing that, if the patient is released as cured before the expiration of the three years, it must be on certain pledges and conditions. The term is three years; but if the patient is believed by the superintendent to be cured, he or she may be released short of that time upon certain conditions. Whether or not the patient is cured at any given time is a mere question of belief at most. Proof of absolute cure cannot be made. It is not within the power of the human mind to know whether or not one is cured of a given habit until it has been proved by conduct; hence any distinction between an actual cure and belief as to a cure is too refined for discussion. Indeed, there is and can be no difference upon this proposition. The point to it is that the *216belief as to a cure must be that of a particular individual, to wit, tbe superintendent of the hospital. None olher may substitute himself and grant the parole.
¶63The most that can be said for the conclusions of the trial court in this ease is that he believed the plaintiff to be cured; but he released her without requiring any pledges or exacting any reports; and no matter how soon she may resume her old habits, there is no way of getting her back to put in her full time of three years, except by another independent hearing upon the matter. Surely, even if the case should be determined under‘the provisions of the law relating to the hospital at Knoxville, there- was no justification for releasing plaintiff on the belief of the trial judge that she was cured. Any other construction would involve the superintendents in constant litigation; for a patient not desiring to take the pledge or to comply with the provisions of the law could at any time hale the superintendent into court and have the trial judge determine the question as to an apparent cure, and if he believed there was a cure, he would be bound to release the patient, without exacting any pledge, and unconditionally.
¶64If counsel are right in their view, then the provisions as to parole are absolutely nugatory. The physician and superintendent in charge have the best means for knowing whether or not the patient appears to be cured, and it must be assumed that they will act upon this knowledge, and if they believe there has been such cure, they may release short of the full time, and when this is done, a pledge is exacted from the patient, and certain other requirements made. On the other hand, if their judgment is not controlling (in the absence of fraud or want of good faith), then the parole system provided for in this law is worthless; and instead of taking the judgment of experts, the trial court exercises its belief and gives an absolute discharge without any conditions, and this it may do without any limitation whatever as to time. I do not think this is a correct exposition of the law.
¶65*217It is the judgment of the special tribunal which justifies the discharge, and neither courts nor judges are given power by statute to review that judgment or belief. Counsel quote a provision of law relating to the discharge of insane persons, which does not either expressly or by implication relate to inebriates, dipsomaniacs, or those given to the use of drugs. It relates expressly to insane persons. As to these, there is a complete system of its own. No constitutional right of plaintiff is infringed by the construction we place upon the law. It is somewhat akin to the indeterminate sentence law, which has been sustained by this court, and no court has ever suggested that the parole system, or “ticket of leave plan,” violates any constitutional limitation. The indeterminate system is based upon the thought that the prisoner has reformed and that it is safe to turn him loose upon society again; but no one can determine that fact except the board created for that purpose. The commitment of inebriates, male or female, is in effect indeterminate, save that it cannot exceed a certain number of years, and at the expiration of that time, the patient must be released whether cured or not; before that time, it is left to the physician and superintendent (or superintendent alone) to say when they think a cure has been effected, and to release upon certain pledges and conditions. If it should appear that they were wrong in their judgment, or the patient puts herself in the way of temptation or resumes her old habits, or violates any of the conditions under which she has been released, she may be returned to the hospital and made to stay until it appears safe to discharge her, and in any event the maximum term is fixed.
¶66Counsel make too much of the supposed distinction between absolute cure and apparent cure; there is and can be no difference, so far as this proceeding is concerned. If one committed as an inebriate or dipsomaniac may at any time have the question of her cure, or apparent cure, submitted to a district court or judge upon testimony from experts and non-experts, and said court may, if it believes the patient *218cured, absolutely discharge her, what becomes of the parole feature of the law? As already intimated, the trial court or judge cannot pronounce absolute cure; at best, the cure is only apparent, and a release made by a court must be final and without power of revocation or recall. The superintendent cannot release on parole short of the three years unless there is an apparent cure. If there is an apparent cure, must the superintendent give a full release, or may he give ¿ full release in one case and a conditional one only in another? If the latter be the case, then how is he to distinguish between a cure and an apparent cure ? If the superintendent has difficulty here, it would seem, according to the argument for appellee, that the district court or judge could have none; and if the court should find that the cure was only apparent, he should remand the applicant to the custody of the superintendent again. "Would such a finding be in any way binding on the superintendent, and would he be obliged, because of the finding of the trial court or judge, to grant the applicant a parole ?
¶67If the court had jurisdiction to make the finding, its judgment is conclusive on the superintendent and a release on parole would be inevitable, no matter what the superintendent might think of the ease. What would become of the statute with reference to parole, if this proposition should be affirmed? Again, suppose the court or judge should find, contrary to the conclusion of the superintendent, that the patient was either actually or apparently cured; and it should turn out within a few days that the apparent cure was a mistake. What could be done to rectify the mistake? Appellee’s counsel say, “nothing”; that this is one of the incidents of all trials. It is apparent that the law in question was enacted to prevent just such mistakes. If not, then the entire scheme is a failure. Unless there is a further fixed time to serve, there can be no parole, and if there can be no parole when a patient is cured or apparently cured, but only an absolute release, then there is no parole but an absolute *219release; so that the legislature made a mistake when it said that dipsomaniacs might be .released on parole on certain conditions and upon pledges being exacted.
¶68There is nothing unusual in the “ticket of leave” and parole plans. They are regarded as essential to a humane administration of the law which authorizes the detention of a person accused of crime, or given over to some disease which makes him a fit subject for confinement. Reformation is much the most important element in all our prison and detention schemes, and it is to be regretted if all systems leading to that end must be abandoned, and the matter of release given over to courts and judges alone. Such has never been the thought heretofore, and no good end can be accomplished by wiping out the parole features of this dipsomaniac law. No claim is made in the petition filed for plaintiff in this case that her sentence was not in accord with the law; hence any discussion on that subject is wide of the mark. There is no statute which, in express terms or by necessary implication, gives a dipsomaniac or inebriate the right to disregard the parole law and go directly to the district court or a judge thereof for a release, because he or she believes he is cured; and this is especially true where the patient never asks the superintendent to act or to discharge her on parole or otherwise. And if, as already suggested, such a patient does not have to go to the superintendent for a discharge, either on parole or otherwise, then the parole features of this law are absolutely repealed by judicial interpretation. And. in the future, the superintendent, instead of using his judgment as to a cure, must go into court, no matter whether he has been asked for a release or not, and justify his detention of the prisoner. And although he may protest that he does not believe him cured and has better means for knowing that fact than any other person, he must, if the trial judge thinks there has been a cure, absolutely discharge the prisoner.
¶69The difficulties growing out of such a situation may well be apprehended and discipline in the institutions will be im*220possible. Patients committed for these habits are sound in mind and generally have friends always ready to help, and" these friends (?) will doubtless make it very unpleasant for the officials of these institutions in the future, if appellee’s contention be adopted. The fact that a writ of habeas corpus may be used to release one from custody does not assist the plaintiff at all. Habeas corpus is a remedy to establish rights. If the applicant is not entitled to his absolute release, he is not entitled to this remedy. The question here is not whether habeas corpus will lie, but whether, under the statutes construed as a whole, defendant is wrongfully restraining applicant of her liberty — whether she is entitled to an unconditional release.
¶70The statute is not silent as to who shall determine whether there has been a cure short of the three years, unless we do as appellee suggests: wipe out the parole features of the law. If it does not give the superintendent power to do so, then of course the only remedy is by action in court by habeas corpus. For, without authority in the superintendent to discharge short of three years, there is no power anywhere, save in the courts, and any patient seeking to be discharged within the three years must bring an action in the district court or before a judge to secure a discharge, even if it be conceded on all hands that there is a cure or an apparent cure within a year or so. No one has supposed heretofore that this was the case, and a great burden has been added to those already imposed upon the courts if they must noiy administer hospitals and inebriate asylums; for, according to the argument for the appellee, no one but a court or judge may discharge an inebriate or dipsomaniac, no matter how firm the belief as to cure. The superintendent of the hospital cannot do so, and neither may the board of control. If the legislature makes any distinction between cure and apparent cure, as applied to the administration of the law now before us, it is not apparent. There is no statute providing for an absolute dis*221charge short of the full term without a parole, as .appellee’s counsel intimate.
¶71I think the trial court erred in discharging the plaintiff.
¶72I am authorized to say that Preston, J., concurs in this dissent in both divisions, and Ladd, J., in the second division thereof, but not in the first, concurring with the majority upon this latter proposition.