WARD, J. I dissent. All parties to this proceeding agree that this is a dispute between the Veterans Administration and the Department of Mental Hygiene of the State of California. The appellant herein will be referred to as the “department.”
The appeal involves an “order settling sixteenth annual account and report dated January 6, 1948 and the order denying the petition of the Department of Mental Hygiene for order directing payment of board, care and maintenance of an incompetent person at a state hospital.” The main question involved is whether the estate of an inmate of an insane asylum may be forced to pay for the inmate’s support and maintenance, regardless of his sanity, if he was not afforded a trial on the issue of sanity before he was committed to the asylum. (Welf. & Inst. Code, §§ 6650, 6651, 6652, 6655.)
A mistaken impression appears to have arisen that the probate judge-refused to consider and determine “objections” to the annual account of the guardian filed by the department and the petition of the department for an order directing payment for board and maintenance of the alleged insane person. It is true that the probate judge suggested that on account of the busy condition of the probate calendar and the legal and equitable questions involved “it would be better to bring an action and determine the thing once and for all.” The probate judge’s views of the condition “of the business of the Court” in the absence of evidence to the contrary should be accepted on appeal. An action could have been filed under the provisions of Welfare and Institutions Code section 6658. The problems submitted on this appeal indicate that the probate judge was justified in suggesting that the department should have filed the claim as an independent action at law or in equity so as to have given the alleged insane, Peter Gestner, his guardian and the Veterans Administration the privilege of litigating the legal and equitable rights of the respective parties. The' guardian may have desired to request an [696]amendment to his annual account for the purpose of claiming that prior payments should be declared offsets to future payments for the inmate’s maintenance. The Veterans Administration might have attempted to intervene. A veterans’ representative appeared at the hearing and stated, “There was no legal obligation to pay, and I should say that we requested the guardian to secure reimbursement for the 13 years they had paid in error, and the matter was heard before the State Board of Control, I believe, and a claim made.” Likewise the State of California through one of its numerous governmental agencies might be interested in the former disposition of funds of the Gestner estate. The department takes the position that it is for its “convenience” to proceed under Welfare and Institutions Code section 6655.
The impression that the probate judge refused to hear the objections probably arose from the following statement in the department’s opening brief: ‘ The Probate Court in denying the petition of the Department of Mental Hygiene ruled that it was without jurisdiction and that the Department of Mental Hygiene should sue the guardian in a civil action.” There is not one word in the reporter’s transcript or in the clerk’s transcript to the effect that the probate court did not have jurisdiction to decide the question presented by the pleadings. The following appears in the department’s closing brief: “Does the Superior Court, sitting in Probate, have the discretion to refuse to hear and determine a claim of the Department of Mental Hygiene against the estate of an incompetent person for board, care and maintenance at a State Hospital, when the said claim is disputed, said refusal to hear and determine the matter being based on the ground that the matter could be better determined in a civil action and on the ground that the Probate Court is too busy to hear and determine the matter?” That the last statement is incorrect appears in an order on the stationery of the attorneys for the department. The order relates that the “objections” were filed “pursuant to the provisions of Section 6655,” and “said matter having been regularly heard; evidence oral and documentary having been offered and received; and said matter having been regularly submitted and considered by the Court; now, therefore, good cause appearing therefor, ...” (Italics added) it was ordered, adjudged and decreed that the objections “be overruled” and the petition “be denied.”
The written opinion of a judge may be enlightening as to ■the reason for making or refusing to make an order or decree, [697]but it may not be considered if it is in direct conflict with a finding of fact or a judgment order or decree. (Union Sugar Co. v. Hollister Estate Co., 3 Cal.2d 740 [47 P.2d 273].) It was stated in Goldner v. Spencer, 163 Cal. 317 at page 320 [125 P. 347], “But, as has often been said, we cannot consider these written opinions in determining whether or not the findings are sufficiently supported by the evidence.” This being true of the written opinion of the judge, it is even more so of the mere oral comment made by him during the consideration of the case.
Refusal to make an order for an allowance payable from a ward’s estate is appealable (Prob. Code, §§ 1600, 1630), but the appeal is specifically from the filed order and not from some comment made by the judge. After preparing and presenting a proposed order and obtaining the probate judge’s signature that he had “considered” the objections of the department to the petition of the guardian the department is bound by such order.
The appeal is pending before this court and all matters that are designated in the notice of appeal and that are necessary for a decision may be considered. Ordinarily, appellate courts are confined to the determination of the questions raised in the briefs, but in the present matter the real party in interest is an alleged incompetent. The appeal involves the status of such alleged incompetent in his relationship with the department, the guardian and the Veterans Administration from which comes the money which has caused a three party dispute. Some questions are suggested in this dissent that are not referred to in appellant’s or respondent’s briefs. During the period of litigation an incompetent, or an alleged incompetent, is a ward of the court. The court as the representative of government is the supreme guardian. (25 Am.Jur. 128, § 205.) The courts have the duty as well as the right to protect those alleged to be insane and to be vigilant to safeguard their rights. (Cubbison v. Cubbison, 45 Ariz. 14 [40 P.2d 86, 89]; 25 Am.Jur. 7, § 2.) The probate judge determined the matter in such manner that all pertinent questions may be decided on this appeal.
The constitutionality of the Welfare and Institutions Code sections 6650, et seq., which provide that persons and estates shall be jointly and severally liable for the maintenance of an inmate of a state institution committed without trial under Penal Code section 1026, has never been passed upon judicially in this state.
[698]The questioned payments in this proceeding are separated into three periods. The guardian agrees that the department is entitled to payment during the last period. That admission, however, is not binding on this court, particularly in view of a possible claim by the Veterans Administration. If it should develop- that the provision of the Welfare and Institutions Code covering payments for maintenance for an inmate committed without a hearing is unconstitutional, then neither the particular period involved nor the sanity of the inmate are vital questions.
It should be further noted that in the Welfare and Institutions Code there has been an effort made to declare the word ‘ ‘ insane ’ ’ synonymous with the words ‘ ‘ mentally ill. ’ ’ (Stats. 1947, ch. 919, §§ 1 and 3.) The designation may be convenient and appropriate in the Welfare and Institutions Code, but it cannot change the long established definition of insanity as a test in a criminal case, namely, one who is unable to distinguish right from wrong.
The real question is the constitutionality of Welfare and Institutions Code sections 6650 et seq. as applied to the facts of this case. The question should not be confused with the constitutionality of Penal Code sections 1026 and 1026(a) with regard to the liberty of an alleged insane person. The latter sections may be considered preliminarily. Article I, section 13, of the California state Constitution and the Fourteenth Amendment of the federal Constitution containing the due process clause refer to distinct and separate subjects: (1) life, (2) liberty and (3) property. A provision relative to the deprivation of liberty may have been declared constitutional, but if the deprivation of property is contrary to constitutional rights and inconsistent with other reasonable laws, that may be held unconstitutional. In re Slayback, 209 Cal. 480, 488 [288 P. 769], held that one “acquitted of a crime by reason of his insanity at the time the offense was committed may be without any further hearing committed to a place of confinement. ...” It was also held that incarceration in an insane asylum is not imprisonment for the punishment of a crime and that one year was a reasonable time to determine by observation whether the committed party had recovered from a condition of insanity. Whatever the views of a member of an intermediate appellate court as to a decision of the Supreme Court, the decision stands as the law of the state and is absolutely controlling on the precise issue involved until the Supreme Court should see fit to make a [699]change. The presumption that a person who was insane at the time of the commission of an offense is insane after his trial for the commission of such offense is a judicial presumption used to bolster a legislative pronouncement that one may be deprived of his liberty without a trial. (In re Slay-back, supra.) That, however, is not the question presented on this appeal. Here it is the deprivation of property—not liberty—that is involved.
It may be suggested that because the Supreme Court has declared that the deprivation of liberty without a trial—in such a situation as the Slayback case—is constitutional that the deprivation of property follows the same rule. To my mind it would be just as logical to hold that because one may be deprived of his liberty without due process he could be deprived of his life without due process. The purpose of the due process rule is to secure a reasonable notice and opportunity to be heard before a tribunal authorized to hear the matter. (Suckow v. Alderson, 182 Cal. 247 [178 P. 965].) The right may not be taken away by indirect legislation. (Lux v. Haggin, 69 Cal. 255 [4 P. 919, 10 P. 674].)
The Welfare and Institutions Code, sections 6650 et seq., provides that certain relatives or an estate are liable for the care and maintenance of an “insane person or an inebriate.” It is the department’s contention that the amendment of 1945 to section 6650 of the Welfare and Institutions Code regarding those committed without trial under Penal Code section 1026 and its adjunct, 1026(a), “was for the purpose of clarification of the existing law.” The department overlooks the fact that there was no existing law except the arbitrary rule of the department to require payment of relatives or the estate of the inmate for one so committed without trial. The attorney general over a period of years had rendered various opinions on this and kindred subjects. In 1936 an opinion was rendered that a person committed under Penal Code sections 1368 et seq. (providing for a trial by jury if demanded) was liable for expenses to the state. Penal Code section 1026 was not involved. In March of 1945 an opinion was issued holding that there was no estate responsibility under Penal Code section 1026 and other sections, including 1368. Under the provisions of the other sections a trial was permitted. The. Legislature was in session and immediately amended the Welfare and Institutions Code sections 6650 and 6655 to include Penal Code section 1026 and other sections. It was an insertion of a legal provision relative to 1026 that never [700]existed before. It is impossible to clarify a nonexistent provision of a code section.
Upon the principle that there is no capacity to form a criminal intent insane persons are declared incapable of committing crimes. (Pen. Code, § 26.) Prior to 1927 there was no provision for a plea of “not guilty by reason of insanity.” If at the time of the commission of an offense an accused was incapable of knowing and understanding that he was doing wrong he was entitled to an acquittal and release from custody. (People v. Kelley, 7 Cal.App. 554 [95 P.45].) If it appeared to any person, official or civilian, that subsequent to the time of acquittal such person was insane or incompetent, proceedings could be instituted in which the alleged insane or incompetent person was entitled to a trial upon that issue. (Pen. Code, §§ 1367 et seq.) If adjudged insane, after hearing, the court had power to direct the insane’s estate or certain relatives to contribute toward the expenses of his confinement.
Peter Gestner, the party confined in a state insane asylum, is not a felon. The return of the verdict of not guilty by reason of insanity was in effect a declaration that the accused was not guilty of the offense charged. The restraint in the insane asylum is not for the purpose of inflicting punishment. (In re Slayback, 209 Cal. 480 at p. 491 [288 P. 769].) Peter Gestner was committed to the state asylum wherein criminally insane are confined because a jury had declared he was insane at the time the alleged crime was committed and because it did not appear to the trial court that Gestner had “fully recovered his sanity.” The “insanity” referred to in Penal Code section 1026 is determined by the person’s capability of determining right from wrong. All this procedure is in accordance with the provisions of Penal Code section 1026. Strange to say, if it had appeared to the court that Gestner had “fully recovered his sanity” it would have been encumbent upon the court to remand Gestner “to the custody of the sheriff until his sanity shall have been finally determined in the manner prescribed by law.” (Italics added.) (§ 1026.) Such a person is entitled to a trial.
Welfare and Institutions Code section 6655 provides a limitation in venue to the county in which an inmate is confined or the county in which the criminal proceedings originated. The probate court in the county in which the confined person may have an estate is not permitted to determine whether the inmate is sane.
Gestner, committed without trial because he appeared to be [701]insane, may only apply to the court for release from the state asylum once each year. On each yearly hearing, though committed without trial, the “burden of proving that his sanity has been restored shall be upon the applicant.” (Pen. Code, § 1026(a).)
One strange feature in relation to an inmate of an insane asylum who is committed without trial and thereafter forced to pay for his incarceration is that if a trial judge has some doubt as to the same person’s sanity during the pendency of a trial of “not guilty by reason of insanity,” which is part of the criminal prosecution of the original offense charged, “the court must order the question as to his sanity to be determined by a trial by the court without a jury, or with a jury, if a trial by jury is demanded.” “If the jury finds the defendant insane, the trial or judgment must be suspended until he becomes sane, and the court must order that he be in the meantime committed by the sheriff to a state hospital for the care and treatment of the insane, and that upon his becoming sane he be redelivered to the sheriff.” “When he becomes sane, the superintendent must certify that fact to the sheriff and district attorney of the county.” In brief, under Penal Code sections 1368 et seq., if during the trial of the accused “a doubt arises as to the sanity of the defendant” an accused is entitled to a trial before commitment to an asylum where he will be forced to pay for his incarceration (Welf. & Inst. Code, §§ 6650-6655), but, under Penal Code section 1026, if at the termination of the sanity trial which is part of the criminal trial it shall appear to the court that the accused has not fully recovered his sanity, the court shall direct that .the accused be confined without trial on the question of present sanity “in the state hospital for the criminal insane” (italics added), or if such hospital is not available then to some other hospital where, the department claims, he may be forced to pay for his incarceration.
The preceding sections (Pen. Code, § 1026 and Welf. & Inst. Code, § 6650 et seq.) are inconsistent and contrary to the provisions of the “Uniform Veterans Guardianship Act.” (Prob. Code, div. IV, chap. XV.) As will be noted later, all of the “benefits” obtained by the veteran Gestner are received from the Veterans Administration. Probate Code section 1651 provides that, “Whenever, pursuant to any law of the United States or regulation of the Veterans Administration, it is necessary, prior to payment of benefits that a guardian be appointed, the appointment shall be made in the manner [702]hereinafter provided.” Probate Code section 1652(d) provides that, “In the case of a mentally incompetent ward the petition shall show that such ward has been rated incompetent by the Veterans Administration on examination in accordance with the laws and regulations governing the Veterans Administration.” (Italics added.) A guardian may apply a portion of the income or the estate for the support of some other person, but only upon the order of the “court after a hearing.” (Prob. Code, § 1661.) The chapter contains other provisions relative to the conduct of the estate emphasizing the complete power of the probate court to protect the insane or incompetent veteran.
If it should be held that In re Slayback, supra, is controlling, though property interest was not involved in that decision, then it is necessary to proceed forward to an examination of the mechanism provided in the Welfare and Institutions Code to force an inmate to pay for his own incarceration without a jury determination of insanity at the time of incarceration.
The adoption of Welfare and Institutions Code sections 6650 et seq. is an invasion of the fundamental and constitutional right of the judicial branch of the government of this state, and particularly of the right of the judiciary to control the management of the estates of insane persons. The Probate Code, which became effective in 1931, is a revision, consolidation and adoption of new provisions applying to probate matters generally, including the appointment of guardians and the administration of estates of insane and incompetent persons. (Stats. 1931, chap. 281; Prob. Code, §§ 1460, 1461.3, 1470 et seq.)
Under the provisions of the Welfare and Institutions Code the amount of the payment for the support and maintenance of insane persons confined in a state hospital may not be fixed by the judicial branch of the government. The Welfare and Institutions Code section 6651 provides that the monthly rate for the care of the insane “where there is liability to pay for such care, support, and maintenance, shall be determined by the Director of Institutions, and shall be payable in advance.” (Italics added.) (See also Welf. & Inst. Code, § 5105.6.) Section 6652 provides that, “The Department of Institutions shall collect all the costs and charges mentioned in section 6650, or see that they are collected.” Section 6655 provides that, “On the filing of a petition therein by the department, showing that the guardian has failed, refused, or neglected [703]to pay for such care, support, maintenance, and expenses, the court, by order, shall direct the payment by the guardian. Such order may be enforced in the same manner as are other orders of the court.” (Italics added.) In the Welfare and Institutions Code, “shall” is mandatory and “may” is permissive. (§15.) There is also a provision that if there is not sufficient money on hand the court may make an order directing the guardian to sell personal or real property to pay for such maintenance.
Section 6655 also provides that, “If a certificate from the medical superintendent of the State hospital in which the person is confined as a patient is filed in the office of the county clerk with the papers in the guardianship proceedings of the patient, in which certificate the medical superintendent states that the patient is suffering from a chronic form of insanity, and that in his opinion a recovery is beyond reasonable hope and that the patient will in all probability continue to be a charge in a State hospital until death, such certificate shall be prima facie evidence that the patient is not likely to recover or to be released from the hospital, and the guardian shall pay the amount due for his care, support, maintenance, and expenses at the hospital and such other charges as are allowed by law out of any moneys of the estate in his possession.” (Italics added.) It is interesting to note that section 6655 only applies to estates. It is impossible to apply it to “relatives.” Section 6658 provides that the department “may in its own name bring an action” against “his estate or any person” who may be liable. It was the latter section that the probate judge suggested the department should invoke.
This court is bound by the order obtained by appellant that the probate court “considered” the petition of the guardian and the objections of the department filed thereto. In my opinion the conclusion is inevitable that the Welfare and Institutions Code sections giving unlimited power to force an inmate of an insane asylum or the estate of the inmate to pay for the inmate’s incarceration on a commitment without a trial is unconstitutional. (Cal. Const., art. I, §§11, 13; art. Ill, § 1; art. IV, § 25, third and twelfth; art. VI, § la, subd. 5.) The probate judge was justified in overruling the objections of the department.
Confining attention to point one in the notice of appeal directed to the probate court’s approval of the annual account of the guardian, no objection is noted in the pleadings and [704]none in the briefs to the correctness of the items listed or the propriety of the expenditures.
The report of the guardian shows that $72 is received from the Veterans Administration as a monthly pension. Several government bonds have been purchased for the account of Peter Gestner. Certain ordinary payments have been made as fees to the guardian and $5.11 as traveling expenses to the attorney representing the guardian. Twenty dollars is paid each month to a woman bearing the name of Gestner, though the record does not show her relationship to the inmate Gestner. Eliminating the bonds, the annual report shows a net iálmce of $217. The claim made by the department is $840. The report does not indicate that any allowance has been made for the inmate’s personal comfort, known as a personal deposit fund. It is apparent that the only way the $40 monthly payment to the department could be allowed would be to resort to the sale of the present bonds and probably refrain from further purchases. In solving this problem, many involved and complex questions may be considered: Whether the relative of the inmate is adequately protected; the interest of the Veterans Administration who caused the monthly stipends to be paid the inmate; and the disposition of any surplus fund, upon the death of the inmate.
These facts and problems indicate that in exercising an independent judgment the probate judge was justified in finding, “that all of such present assets have been carefully examined and considered by the guardian; that their retention by the guardian in the guardianship estate has been for the best interests of the guardianship estate and those interested therein.”
On appeal the department does not argue that the probate judge should “hear the petition” or that it be sent back for reconsideration. It is urged that the order denying the petition should be reversed and that the probate court be directed to allow the department’s claim and that it continue for so long as Gestner remains an inmate of the state asylum.
The order overruling the objections of the Department of Mental Hygiene of the State of California and the order, judgment and decree settling the 16th annual account should be affirmed.
Eespondent’s petition for a hearing by the Supreme Court was denied May 16, 1949. Shenk, J., and Schauer, J., voted for a hearing.