48-34
County Court
Cite as N.D. Op. Att'y Gen. 48-34
OPINION
48-34
December 8, 1948 (OPINION)
COUNTY COURT
RE: Jurisdiction Over Insane Persons
Your letter of December 3, relative to the petition for release of an
inmate of the Federal hospital at St. CLoud, has been received and
sent to my desk.
Section III of the Constitution prescribes the jurisdiction of county
courts and does not seem to give the county court any jurisdiction
whatever over insane persons. It would seem, therefore, that such
powers as are given the county judge as a member of the insanity
board are ex officio powers and not powers of the court. It appears
that in every instance the statute speaks of "the county judge" and
not of the county court. Of course the legislature could hardly give
the county court, as such, jurisdiction not conferred by the
Constitution. See the case of State ex rel. Sathre v. Roberts, 67
N.D. 92, 269 N.W. 913, 108 A.L.R. 37.
Section 25-0324 of the Revised Code of 1943 confers authority over
persons confined in the State Hospital. This section does not seem
to have been amended. I would hesitate, therefore, to believe that
the present law gives the insanity board or the county judge, as
chairman of the board, extra territorial powers. Supposing you sent
a commission to St. Cloud and the members were denied admission to
the patient, what remedy would you or the commission have? Clearly,
the amendment to section 25-0333 authorizes the committing of an
insane person eligible for treatment in a federal hospital to such
hospital, but it can hardly, in my opinion, confer extra territorial
authority over such person, even though the statute attempts so to
do. It is my judgment that the proper remedy is by petition for writ
of habeas corpus brought in the county in which the hospital is
located in which the patient is confined.
P. O. SATHRE
Attorney General