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the colony will have the right of compulsory detention over such patients, and the right to cause their arrest and return should they escape. The Legislature in conferring this power uses the language“ authority shall be given” instead of the language "authority is hereby given." The language used implies that the authority is to be conferred some time in the future. Under the rules of statutory construction I think, however, it may be assumed that the Legislature intended to confer present authority as though it had used the plain unambiguous expression "authority is hereby given."

The commitments to be obtained by the colony under subdivision 11 would have the same force and effect as original commitments under subdivision 1 and the proceedings to be taken by the colony must conform to the proceedings upon an original commitment. This opinion, therefore, covers commitments under both subdivisions.

Chapter 588 of the Laws of 1911 does not repeal any provision of the State Charities Law relating to Craig Colony and is, therefore, difficult to ascertain what class of epileptics comes within the meaning of the enactment. In an opinion by the Attorney-General (Report of 1910, p. 934), it was held that epilepsy ipso facto does not render its subject a menace to the public welfare, nor does it follow that a person so afflicted is an incompetent. This opinion was written in reply to a communication from the superintendent of Craig Colony calling attention to an act of the Legis. lature of 1907 permitting the Rome State Custodial Asylum to detain inmates until discharged by its board of managers and authorizing the arrest and return of inmates who have escaped therefrom. The Attorney-General held that such a law would not apply to epileptics unless some cause were shown rendering them unsafe to be at large and that a law giving to the managers of Craig Colony the right to detain a patient against his will, whose only infirmity is epilepsy, would be unconstitutional. The law under discussion meets this condition by making it applicable only to "mentally incompetent epileptics” and the law would be clear in this respect were it not for the following provision contained in section 113 of the State Charities Law:

“Should an epileptic become insane, such patient, if a State patient, shall be sent to the State hospital of the district of which he was a resident just prior to his admission to the colony, in the manner pre

scribed by law.” Section 80 of the Insanity Law also contains a provision relating to epileptics and provides that any epileptic becoming insane may be committed as an insane person to a State hospital for custody and treatment therein.

Section 113 of the State Charities Law was not repealed by chapter 588 of the Laws of 1911. Insane epileptics must still be committed to a State hospital for the insane in the manner prescribed in the Insanity Law, and in my opinion chapter 588 of the Laws of 1911 applies only to a class of patients who are mentally deficient but not insane.

Neither subdivision 1 nor subdivision 11 of the law under discussion prescribe any manner for the commitment of this class of mentally incompetent epileptics. There is no provision for notice to the alleged incompetent or for an opportunity to be heard before such commitment, and the law is silent as to who shall make the commitment.

Prior to the enactment of chapter 588 of the Laws of 1911, the word “commitment” was not used in the State Charities Law in relation to Craig Colony, nor were inmates admitted thereto upon commitment. The admission was made upon the application of the patient himself or the application of the poor authorities; or if under age, upon the application of the parent or guardian. The authorities of Craig Colony have assumed, however, that an admission to the colony under section 109 is a commitment within the meaning of section 114 as added to the State Charities Law in 1911, and has submitted with its request for an opinion, a form now in use by the poor authorities for commitments under chapter 588 and it is suggested by the colony that such form be also adopted for commitments that may be made in the future, under subdivision 11, of inmates already in the institution. This form is not a commitment. It is merely an application for admission of a patient to be signed by the poor officer of the county or city as the case may be. Attached thereto is a certificate to be signed by a relative of the patient to the effect that such relative has read the application and is familiar with its contents. At the top of this admission blank is printed the following: “ Under chapter 588 of the Laws of 1911 patients admitted to the Craig Colony for Epileptics on this form cannot be removed from the colony until discharged in the regular manner by the Board of Managers.” Under a blank such as this, the authorities of Craig Colony propose to have committed mentally incompetent epileptics, under subdivision 1, and also to commit, under subdivision 11, patients already at the institution, who subsequently become mentally incompetent.

The word "commitment” presupposes a judicial determination and a judicial determination must be based upon due process of law.

Due process of law requires that a party shall be properly brought into court, and that he shall have an opportunity, to prove any fact which, according to the Constitution and the usages of the common law, would be a protection to him or his property.

People v. Board of Supervisors, 70 N. Y. 228.

Due process of law requires an orderly proceeding adapted to the nature of the case in which the citizen has an opportunity to be heard, and to defend, enforce and protect his rights. A hearing or an opportunity to be heard is absolutely essential. We cannot conceive of due process of law with. out this.

Stuart v. Palmer, 74 N. Y. 183.

The words in subdivision 1 of the act " committed thereto in accordance with the provisions of law” necessarily mean “committed thereto in accord ance with due process of law” and it is very clear that the procedure now followed by the colony under subdivision 1, upon original commitments, and the procedure suggested for the colony under subdivision 11 are entirely inadequate and afford the institution no jurisdiction whatever for the compulsory detention of epileptics whether mentally incompetent or otherwise.

Jurisdiction is inherent in the State over unfortunate persons within its limits who are idiots or have been deprived of the use of their mental faculties. It is its duty to protect the community from the acts of those persons who are not under the guidance of reason, and also to protect them, their persons and property from their own disordered and insane acts. (Sporza r. German Savings Bank, 192 N. Y. 8-14.) This inherent jurisdiction of

p. 15.

the State is limited, however, by the provisions of the Constitution of the United States (Sec. 1, 14th Amendment), that no State shall deprive any person of his life, liberty or property without due process of law, and by the provisions of the State Constitution (art. 1, § 2) that trial by jury in all cases in which it has heretofore been used shall remain inviolate forever. By reason of these limitations it seems to be the well-settled rule that the permanent confinement of an alleged insane person cannot be justified by proof of his insanity nor even of his dangerous propensities unless it be in pursuance of a judgment of a court of competent jurisdiction. (See Tiedman on State and Federal Control of Persons and Property, Vol. 1, chap. 6.)

The statutory provision for the care of the insane during the early bistory of our State is somewhat meager; and the practice with reference to the detention and confinement of an insane person and the appointment of a committee was somewhat uncertain and had to be sought for in the adjudicated cases and books upon practice. The usual practice was a writ de lunatico inquirendo under which the inquisition was held before a jury, and the question of the mental disorder of a person determined by a verdict.

Sporza v. German Savings Bank, 192 N. Y.,

It also appears from the case above cited that at the time of the enactment into the Constitution of the provision preserving the right of trial by a jury, the custom prevailed to require a trial by jury, at least to inform the conscience of the court if not as a matter of absolute right, upon the question of the insanity of a person in proceedings taken with reference to his commitment and to the disposal of his property. As the act under discussion makes no provision for such trial by jury its constitutionality may be extremely doubtful. However this may be, the act, in my opinion, is inoperative as it makes no provision for a judicial determination upon the question of incompetency, provides for no notice to the alleged incompetent and affords him no opportunity to be heard.

I have reached this conclusion after a careful examination into the general laws of the State relating to the insane and other incompetent persons inasmuch as the words committed thereto in accordance with the provisions of law” might be said to relate to commitments authorized by the general laws of the State, other than the State Charities Law. The provisions relating to the commitment of the insane are found in the Insanity Law which provides for notice to the incompetent, a hearing, a judicial determination, and preserves the right of trial by jury if the incompetent so elects. Commitments under section 80 of the Insanity Law must be “ only to a State Hospital, a duly licensed institution for the insane, the Matteawan State Hospital, or to the care and custody of a relative or committee.”

A com mitment cannot be made to the Craig Colony for Epileptics under the Insanity Law because that institution is not one of the State hospitals enumerated in the Insanity Law nor is the same a duly licensed institution for the insane. Moreover insane epileptics must, under section 113 of the State Charities Law, be sent to the State hospital for the insane and the Insanity Law does not comprehend a class of mentally incompetent epileptics other than insane epileptics.

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The only other provisions of law relating to the insane or mentally in. competent are the provisions of the Code of Civil Procedure relating to the appointment of a committee of the person and estate of such incompetent. While these provisions of the Code of Civil Procedure authorize the appointment of a committee of the person, or the estate, or both, of an incompetent person they do not authorize the commitment of such incompetent person to any State institution.

In my opinion no valid commitment can be made to Craig Colony under chapter 588 of the Laws of 1911 and the authorities of that institution have no jurisdiction to detain patients against their will or to cause the arrest and return of those who escape therefrom. Dated, June 17, 1912.


Attorney-General. To Dr. William T. Shanahan, Medical Superintendent, Craig Colony for

Epileptics, Sonyea, N. Y.

§ 115. Sale of products. All moneys received from time to time from the sale and disposal of manufactured products of the trades and industries of the colony, live stock and the produce of the land, shall be paid into the treasury of the state. The comptroller shall keep a special account with and credit to the colony the sums so paid into the treasury, with annual interest thereon, which moneys shall be set apart for the use of the colony, and subject to the written approval of the fiscal supervisor, certified to the comptroller, may be expended by the board of managers for any purpose authorized by law connected with the colony, and drawn fron the treasury in the same manner as is provided for payments under section one hundred and ten of this chapter, in such sums and at such times as required. (As amended by chapter 149 of the Laws of 1909 and chapter 449 of the Laws of 1910.)


*8 117. Designation of special policemen. The superintendent of such colony may designate officers or ployees of such colony to act as special policemen, who shall have all the powers of peace officers in cases of offenses committed on the premises of such colony or within one hundred yards of such premises. The designation of such officers or employees as special policemen shall not be deemed to supersede on the premises of

* Not renumbered by chapter 449, Laws 1910, to correspond to preceding sections.

such colony the authority of peace officers of the jurisdiction within which such colony is located. (Added by chapter 260, Laws of 1910.)

ARTICLE 9 New York State Hospital for the Care of

Crippled and Deformed Children
Section 130. Establishment of the New York state hospital for

the care of crippled and deformed children.
131. Board of managers, appointment of.
132. Powers and duties of board of managers.
133. Powers and duties of the surgeon in chief.
134. Powers and duties of treasurer.
135. Official oath.
136. Who may receive treatment.
137. Donations
138. Managers' report of receipts.

§ 130. Establishment of the New York state hospital for the care of crippled and deformed children. The state hospital, known as the New York state hospital for the care of crippled and deformed children, established at West Haverstraw, is hereby continued for the care and treatment of any indigent children who may have resided in the state of New York for a period of not less than one year, who are crippled or deformed or are suffering from disease from which they are likely to become crippled or deformed. No patient suffering from an incurable disease shall be admitted to said hospital. Said hospital shall provide for and permit the freedom of religious worship of said inmates to the extent and in the manner required in other institutions, by section twenty of the prison law. (As amended by chapters 149 and 240 of the Laws of 1909.)

$ 131. Board of managers, appointment of. Seven citizens of this state appointed in accordance with the provisions of section fifty-one of this chapter shall constitute the board of managers of the New York state hospital for the care of

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