On appeal from the Supreme Court.
For the prosecutor-appellant, Thomas Brunetto.
For the respondent, Arthur T. Vanderbilt (G. Dixon Speakman, of counsel).
The opinion of the court was delivered by
PORTER, J. This appeal is from a judgment of the Supreme Court dismissing a writ of certiorari to review an order of the Essex County Juvenile and Domestic Relations Court of May 3d, 1943, which denied the application of appellant to vacate and set aside an order, dated July 2d, 1940, of final commitment of him to the Essex County Hospital for the Insane. The appellant was confined in the hospital until August 15th, 1940, when he was released. He has not since been confined, and as far as appears has not been molested,
nor have his movements been in any way restricted. It is true that when he was released from the hospital he was instructed by the hospital authorities that he was to stay away from the Township of Livingston and that upon his failure to do so it would be necessary to return him to the hospital. Under the circumstances we think this condition may not be made effective and that he may not be again committed except by new proceedings under either R.S. 30:4-37 or R.S. 30:4-38. This is conceded by respondent. So we conclude that there is no merit in the argument that he is unlawfully deprived of his liberty.
It appears that on May 20th, 1940, the director of welfare and overseer of the poor in the Township of Livingston, where the appellant resided, made an application for commitment of appellant to the Essex County Hospital, as an insane person. Two physicians certified that he was insane and required care and treatment in an institution for the insane. This application was presented to the judge of the Recorder's Court of the Township, who on May 22d, 1940, ordered appellant temporarily committed to the hospital until final hearing. Thereafter, on July 2d, 1940, after notice to appellant and a hearing, the judge of the Essex County Juvenile and Domestic Relations Court entered a final order of commitment. On August 12th, 1942, appellant petitioned that court for the vacation of the order of commitment. The prayer of this petition was denied, and the writ of certiorari was allowed by Mr. Justice Parker, returnable before him, to review that action. Upon return of the writ and after hearing counsel, Mr. Justice Parker, for the court, concluded that the proceeding under review had been in substantial accordance with the law and dismissed the writ. With that conclusion we are in accord.
It is argued by the appellant that his commitment was illegal because he was not accorded the right of trial by jury, that the police recorder who committed him in the first instance was without jurisdiction, that the commitment was otherwise illegal because of certain procedural defects, which will be discussed later. The respondent argues that these questions are moot for the reason that appellant is at liberty
and has been since August 15th, 1940, and is not therefore being deprived of his liberty nor is he being deprived of his property under the order of commitment of July 2d, 1940. However that may be, the appellant argues that the commitment has adjudged him insane and that he suffers from that stigma in his business and social relations and is entitled to have that status changed by a vacation of the adjudication. We think the questions are moot and that no substantial or effective redress may be afforded the appellant at this time by a vacation of the order. In such a situation the courts refuse to pass on moot questions on appeal. Coryell v. Holcombe, 9 N.J. Eq. 650; Mills v. Green, 159 U.S. 651; 40 L. Ed. 293. Nonetheless, for reasons to be stated, we think the judgment of dismissal of the writ was right on the merits and should be affirmed.
The rule was well established at common law that insane persons could be restrained, in order to prevent them from doing harm to themselves or others, without the necessity of any judicial hearing. Compare Sporza v. German Savings Bank, 192 N.Y. 8; Allgor v. New Jersey State Hospital, 80 N.J. Eq. 386; Boesch v. Kick, 97 N.J.L. 92. Early in the history of this state, however, various statutes were enacted governing the matter and altering the common law rule by requiring judicial proceedings for the restraint of insane persons. No useful purpose will be served by a review of these statutes. At the time of the adoption of our present constitution in 1844 the pertinent law in effect was the act of February 28th, 1820, entitled "An act concerning idiots and lunatics." Elmer's Digest, 1838, p. 237. The provisions of this act did not require a determination of insanity by a jury. It also safeguarded the common law right of restraining an insane person without judicial proceedings. This act was carried through the various revisions until the Revision of 1877, page 605, Lunatics, section 21. Article 1, section 7 of the ...