a party to the hearing and proceeding, under all the recognized rules of legal procedure he is clearly not bound by the judgment, and none of his rights are precluded. See, also, Farnham v. Pierce, 141 Mass. 203, 6 N. E. 830, 55 Am. Rep. 452.

through a lengthy and formal criminal or civil proceeding, without prompt detention and commitment of the child, would in many cases thwart the object of the law. It might in many cases be a matter of high importance that action be taken without delay.

[1, 2] Plaintiff demurred to the return, and The Legislature having determined that a it is suggested that it is thereby admitted summary proceeding was necessary, requirshe was present in court when the commit- ing the immediate taking of children into ment was made. Conceding this to be true, custody in the interests of their moral welher presence in court is not sufficient. Pro- fare and education and as a protection to the vision must be made whereby she may de- state, the parent or guardian of a child refend her rights if the judgment is to be con- moved from his custody is not denied the due clusive as to her. No such provision is made process of law if an adequate remedy is by our statute. The action of the probate available by which he may afterwards have court established the status of the child. his rights presented to a proper tribunal and Plaintiff, never having had her day in court, determined. Many instances which are more is entitled to resort to an appropriate rem- or less analogous in principle might be citedy in order to have her rights adjudicated.ed in support of this conclusion. We quote Habeas corpus appears to be an appropriate the following from McGehee on Due Process remedy. State v. Kilvington, 100 Tenn. 227, of Law, p. 372: 45 S. W. 433, 41 L. R. A. 284. In the case "Necessity, not to dispense with altogether, of Andrino v. Yates, 12 Idaho, 618, 87 Pac. but to postpone hearing, may exist in the case of 787, this court said:

the destruction of houses in the path of a conflagration or of infected articles or animals. Delay, before the destruction of the property condemned, for the purpose of giving notice, and it may be to ascertain who are the parties whose interests will be affected, and further delay for such hearing as the parties may think necessary for the protection of their interests, might defeat all beneficial results from the contemplated action. Having regard to the necessities of this class of cases then, and adjusting the requirements of notice and hearing to it, it is held that local authorities may, when the necessities of the case justify this action, proceed to condemn property and destroy it as a nuisance in advance of notice or a hearing. But the property owner has a right to have a judicial determination of the validity of the regulation and existence of the nuisance upon a review of the matter in the courts. The ex parte determination of the local authorities cannot be made conclusive."

"This is not the case of an adult appealing to the aid of habeas corpus to obtain his freedom from illegal restraint, but the writ in this case was granted to inquire whether the plaintiff was entitled to the custody of said minor child. The proceeding is not for the purpose of setting the child free, but to determine whether the petitioner is entitled to its custody, and the correct view or rule is that the jurisdiction of the question of the custody of a child under a writ of habeas corpus is of an equitable nature, and courts are given large discretion in the matter." In this action the right of the parent to the custody of the infant may be presented and determined. The order of the court in such a case is discretionary, and in the exercise of this discretion, in determining to whom the custody of a child shall be awarded, courts will look both to the present and Summary proceedings of a like nature have future interests and welfare of the child. been upheld in many jurisdictions. Weber It has been said that this rule is the "pole v. Doust, 84 Wash. 330, 146 Pac. 623; Mill v. star" by which courts are guided in such Brown, 31 Utah, 473, 88 Pac. 609, 120 Am. cases. The commitment of a juvenile delin- St. Rep. 935; State v. Children's Home, 10 quent by the probate court, under our stat- N. D. 493, 88 N. W. 273; Reeve v. Dennett, ute, does not therefore leave the parent rem- 141 Mass. 207, 6 N. E. 378; State v. Brown, ediless, but, on the contrary he has ample 50 Minn. 353, 52 N. W. 935, 16 L. R. A. 691, opportunity to present and have adjudicated 36 Am. St. Rep. 651; Prescott v. State, 19 his right to the custody of his child. We Ohio St. 184, 2 Am. Rep. 388. do not say that a writ of habeas corpus, though an appropriate remedy, is the only one available for a parent in such circumstances.

[3, 4] The plaintiff is proceeding under the impression that due process of law requires that the determination of the parent's rights to the custody of his child must precede any interference therewith. This view cannot be sustained. Our statute was enacted as a matter of protection to the child and for the welfare of the state. The Legislature, in enacting this law, no doubt saw the wisdom of prompt commitment of a child, who is upon the high road to becoming a moral degenerate and perhaps a future charge upon and a dis

In the case of Jain v. Priest, 30 Idaho, 273, 164 Pac. 364, we held that a judgment of a district court in a habeas corpus proceeding, involving the custody of a minor child, is a final judgment in a proceeding of a civil nature, and that an appeal lies from the district court to this court.

In the case of Cormack v. Marshall, 211 Ill. 519, 71 N. E. 1077, 67 L. R. A. 787, 1 Ann. Cas. 256, it was held that issues of fact involved in habeas corpus proceedings, involving the custody of a child, when adjudicated, became res judicata, and that a judgment in such a case is a bar to another habeas corpus action in the same court, or in another court where the facts involved are the same as

in line with the great weight of authority, and many cases are cited and discussed in the opinion.

The record presented in the case at bar, disclosing as it does that plaintiff originally called into exercise the jurisdiction of the district court, an orderly course of procedure would require that the plaintiff do not abandon her action in the district court, but that she proceed to a determination of all the issues involved in that court, and if dissatisfied with the final judgment therein rendered she may bring the whole matter to this court for review on appeal.

Inasmuch as the time for appeal to this court from the judgment rendered and entered in the court below has expired during the time this court has had the matter under consideration, and in view of the fact that the custody and welfare of a minor child, and one of the most sacred rights of a parent, are involved in this proceeding, relief may be had and the judgment of the district court set aside upon a proper showing being made under the provisions of Rev. Codes, § 4229. Upon such relief being granted, we quote from the case of Ex parte Collins, 151 Cal. 340, 90 Pac. 827, 91 Pac. 397, 129 Am. St. Rep. 122, as to the procedure to be employed:

In a county in which the sale of intoxicating liquor has not been prohibited by law, which county contained a municipality in which licenses for the sale of intoxicating liquor had been issued and were in force, neither the porfines of the municipality, nor any precinct outtion of the county lying outside of the conside of the municipality, constituted a "prohibition_district," as defined by Sess. Laws 1913, c. 27, § 7.

and Phrases, Second Series, Prohibition Dis[Ed. Note.-For other definitions, see Words trict.]

2. INTOXICATING LIQUORS 147(1)-LOCAL OPTION PROHIBITION DISTRICT"TERRITORY."

The word "territory," as used in Laws 1913, c. 27, § 7, providing that a prohibition district is territory in which the sale of intoxicating liquor is prohibited by law, or where no liquor license has been issued, means the state or a political subdivision of it; a unit of country with some sort of government peculiar to itself. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Territory.]

Budge, C. J., dissenting.

Appeal from District Court, Ada County; Charles P. McCarthy, Judge.

district, and he appeals. Reversed.

Wood, Driscoll & Wood and S. L. Tipton, all of Boise, for appellant. J. H. Peterson, Ex-Atty. Gen., T. A. Walters, Atty. Gen., and J. P. Pope, Asst. Atty. Gen., for the State.

"The function of the petition is to secure the issuance of the writ, and, when the writ is issued, the petition has accomplished its purpose. The writ requires a return by the officer or other person having the custody of the prisoner. To such return the petitioner may present exceptions, raising questions of law, or a traverse, raising issues of fact, or both. Where the return is not subject to exception-that is, where it sets forth process which on its face shows Edward E. Morton was convicted of maingood ground for holding the prisoner, such pro-taining a common nuisance in a prohibition cess being produced at the hearing (Pen. Code, $1480) and the traverse alleges matter tending to invalidate the apparent effect of such processthe burden of proving such new matter is on the petitioner. The remarks in Re Smith, 143 Cal. 368. 77 Pac. 180, are to be taken as referring only to the case where, by agreement of the parties and the consent of the court, the petition is treated as a traverse to the return, and its averments are not disputed. This course has frequently been followed in this court; but where it is followed it does not require the respondent to file, in addition to the return, a pleading, specifically denying the affirmative allegations of the petition, treated as a traverse, nor does it shift the burden of proof as to such allegations from the petitioner to the respondent. To adopt the analogy of pleadings in civilnicipal corporation of the state of Idaho, and actions, the return is the complaint, and the traverse is the answer; new matter set up in the traverse is deemed denied, and must be proved by the party alleging it."

See Rev. Codes, §§ 8347, 8351.

The district court will have power to require the defendant to make proper return to the writ, setting forth, not only the authority under which he has the custody of the child, but also the reasons, if any there be, why the plaintiff is not a suitable person to have the guardianship and custody of her daughter. The plaintiff will thereupon make such answer to the return as she may be ad

RICE, J. By the indictment in this case it was charged that the appellant did, on or about the 7th day of December, 1914south end of Ninth street, known as Joplin's "in a certain brick building located at the Corner, said brick building being then and there outside of the city limits of Boise City, a mu

within a prohibition district, willfully and unlawfully occupy, maintain, control and keep open a place where intoxicating liquors were sold, delivered, furnished, given away and otherwise disposed of in violation of law."

It is conceded that at the time specified in the indictment the sale of intoxicating liquor in Ada county had not been prohibited by law; that liquor licenses were granted and saloons and other places where intoxicating liquor was sold were maintained within the limits of the municipality of Boise City; that no liquor licenses were granted under which saloons, or other places for the sale of intoxicating liquor, could be main

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

in quantity in excess of one gallon, or one | tions of the word "territory." "Territory" case of beer containing not more than 24 quart bottles. This last provision was repealed by Sess. Laws 1913, c. 99, p. 416, but it may be considered in determining the true definition of "prohibition district."

is defined in the majority opinion as "a part of a country separated from the rest and subject to a particular jurisdiction," or "any area or tract of a state not invested with full rights of sovereignty, but governed as a dependency or separate area, or having a legal system more or less peculiar to itself." If there is anything to be deduced from these definitions, it would be not only against rather than in support of the theory that the county is the unit, but in support of the theory that the precinct is the unit, for the following reasons: The precinct was abso

In view of these provisions it is difficult to believe that it was the intention of the Legislature that a precinct in which no liquor licenses had been granted should constitute a prohibition district. Doubtless it is true that there were, in many counties of the state which at the time of the enactment of the act were known as wet counties, precincts in which no licenses for the sale of intox-lutely subject to the "particular jurisdic icating liquors had been applied for or granted. It surely was not intended, for instance, that a physician in such a county must change his method of practice when he crossed the precinct line from a precinct in which a saloon was located to one in which no licenses had been granted, in order to avoid rendering himself liable to forfeiture of his license to practice medicine in the state. Similar considerations are applicable to the other provisions of the act referred to above. In view of these considerations, we are constrained to hold that the place in which it is conceded the appellant conducted his business was not a prohibition district, and the judgment must be reversed.

MORGAN, J., concurs.

BUDGE, C. J. (dissenting). The first and only important assignment of error involves the construction of section 2, c. 15, Session Laws of 1911, and section 7, c. 27, Session Laws of 1913, set forth in the majority opin

ion.

tion" of the board of county commissioners which had the exclusive right to refuse to grant liquor licenses; the precinct was not an "area or tract" invested with full rights of sovereignty; and the precinct had "a legal system more or less peculiar to itself'these definitions certainly apply as well to a precinct as to a county.

Sections 1507 and 1508, Revised Codes, would seem to strengthen the latter view. Section 1507 provided that an application for a liquor license must specify the precinct within which the place of sale was to be located and, when granted, the license was restricted to such precinct; section 1508 provided that when such application was made for a liquor license, outside of any incorporated city, it was the duty of the board of county commissioners to determine whether or not the liquor license should be granted, "either upon their own motion or upon objections duly filed upon the part of any citizen and resident of the precinct within which it is intended to carry on such sale"; thus making it clear that the rural precincts were entitled to especial consideration so far as the question of issuing liquor licenses was concerned. In fact, the precinct was the only unit recognized, under the law as it stood prior to the enactment of the local option law, by county and state licenses.

It is the contention of the appellant that the county of Ada constituted the unit of measurement for a prohibition district within the meaning of the foregoing statutory provisions, and that, since liquor licenses were issued and in effect in Boise City, he did not maintain a common nuisance. It is As stated in the majority opinion, the loinsisted by the state that all territory out- cal option law of 1909 defined a prohibition side of Boise City where no liquor licenses district to be "any district or territory in had been issued or were in force was prohibi- the state of Idaho in which the sale of intion territory. The question therefore arises: toxicating liquor is prohibited by law"; that What is a prohibition district within the is, where, by an election held under the lomeaning of the statutory provision that a cal option law, by a majority vote the sale ""prohibition district' is territory of intoxicating liquor was prohibited, the where no liquor license has been commissioners had no power to issue liquor issued in accordance with the laws of this licenses. This was the situation in 1911 state." The duty devolving upon this court when the Legislature passed the law defining is to place a reasonable construction upon the crime with which appellant is charged. the provisions of the statutes to the end that At that time there were many counties that the evident purpose of the acts be attained. had not voted to prohibit the sale of intoxIt is the holding of the majority opinionicating liquors, and there were municipalithat the county, as contradistinguished from ties in those counties which were strongly the precinct, is the unit of territory intended by the statute to comprise a prohibition district; but it would be more reasonable to hold that the precinct is the unit rather than the county. Stress is laid upon the defini171 P.-32

in favor of the sale of intoxicating liquors within the municipalities, thereby overcoming the vote in the county cast by rural districts.

The 1913 session of the Legislature, to fur

ther restrict and prohibit the sale of intox- The statute imposed only one burden upon icating liquors and afford additional protec- the physician, that in a prohibition district tion to rural districts, passed an act further his prescriptions for intoxicating liquors regulating the disposal of alcohol and intox- were restricted to "cases of actual sickness icating liquors, and defined a prohibition dis- and after making a thorough examination trict as any "territory in which the sale of of the patient." He need not concern himintoxicating liquor is prohibited by law, or self with wet or dry territory nor their rewhere no liquor license has been issued in spective boundaries if he confined his preaccordance with the laws of this state." scriptions of intoxicating liquor to cases of (Italics mine.) Session Laws 1913, c. 27, 8 actual sickness, and if he prescribed intoxi7, p. 127. cating liquor in cases other than actual sickness he fostered the industry the law was designed to curtail. No prescription would be required in wet territory because the patient could get intoxicating liquor there without a prescription.

In my opinion, neither the county unit theory nor the precinct unit theory correctly interprets the sections of the statutes involv ed. Either view unduly limits and restricts the purpose of the acts, the objects sought to be attained by them, and the broad language used therein. It is clearly apparent that

Prior to the 1913 law the commissioners had the power, under section 1508, Revised Codes, to refuse to grant a liquor license in any precinct or unincorporated town or village, or in any incorporated village, town, or city within the county (Anderson v. Board of County Commissioners, 22 Idaho, 190, 125 Pac. 188; Sullivan v. Board, 22 Idaho, 202, 125 Pac. 191); and any such place where no liquor license had been issued would be territory "where no liquor license has been issued in accordance with the laws of this state," and would constitute a prohibition | had it been the intention of the Legislature district within the meaning of chapter 27, § 7, p. 127, Session Laws 1913. The very purpose of the latter section was to make all such territory a prohibition district, and to afford the protection of the provisions of the law applicable to prohibition districts to rural sections where no licenses had been issued, and to make it impossible for municipalities, which by reason of a majority vote had made a county "wet," to deprive the rural communities within such county of the protection afforded by the provisions of chapter 15, § 2, p. 33, Session Laws 1911. To hold otherwise it would follow that where a county was voted "wet," and liquor licenses were granted within a municipality, the entire county would be "wet," irrespective of the action of the board of commissioners in refusing to grant liquor licenses, and a common nuisance such as maintained by appellant could not be abated. The abatement of the nuisance was the real object sought to be attained by this legislation. The majority opinion emasculates the amendment, and deers solely. It was within the power of the prives the rural districts of the added protection the amendment was designed to afford.

to restrict a prohibition district to the territory comprising a county, precinct, or municipality, these limits would have been prescribed in the act in definite terms; but the act placed no limitations other than "territory in which the sale of intoxicating liquor is prohibited by law, or where no liquor license has been issued in accordance with the laws of this state." The pertinent fact is that no liquor licenses had been issued or were in force outside of the boundaries of the municipality nor in any territory in Ada county outside of Boise City. Liquor licenses had only been issued and were in force within Boise City, the territorial limits of which are well defined. Since Boise City is a municipality and a separate entity, the issuance of liquor licenses therein depended upon the joint action of the municipal authorities and the board of county commissioners, while the issuance of such licenses within the county outside of municipalities rested with the board of county commission

board to refuse to grant liquor licenses within a precinct or within any given territory in the county, and where, as in this case, no The majority opinion urges that by the act liquor licenses had been issued or were in of 1913 it was made unlawful for a physician force anywhere in the county outside the to issue a prescription for intoxicating liq- boundaries of a municipality, all such terriuor as medicine in a prohibition district, tory lying without the boundaries thereof except in case of actual sickness and after was territory where no liquor licenses had making a thorough examination, and then been issued according to law, and constitutonly by the use of a prescribed form of pre-ed a prohibition district within the meaning scription. Therefore the unit could not of section 7, c. 27, supra, and the maintainconsistently be limited to less territory than ing of a place therein where liquors were disthe county, for the reason that to hold other-posed of, as shown by the admitted facts, wise would work a hardship on the physi- constituted it a common nuisance within the cian by requiring him to change his method meaning of such statutory provisions. of practice when he crossed the precinct line from a precinct in which a saloon was located to one in which no license had been issued and render him liable to forfeiture of

The purpose of the law was to prescribe the means by which a public nuisance might be abated, and to give the statute a restrict< ed construction defeats this purpose.