
    Rutter v. The State.
    Where the superintendent of an insane asylum, acting in good faith, with the assent of the trustees of the institution, and solely with reference to the welfare of the patient, permits her to be removed to and remain temporarily at the residence of a near relative, the husband of the patient cannot, by mandamus, compel her restoration to the asylum; and the fact that such residence is beyond the limits of the state will make no difference.
    Error to the District Court of Franklin county.
    Jane Gatrel, wife of James Gatrel, was on July 31, 1880, adjudged to be insane, in a proceeding in lunacy before the probate court of Pickaway county, Ohio, and on August 27, 1880, she was committed to the Hospital for the Insane at Columbus, in pursuance of such adjudication. Dr. Rutter, superintendent of the hospital, on May 21, 1881, permitted Mrs. Regan to take the patient on a visit to her (Mrs. Regan’s) residence, in the state of Texas, and on June 10, 1881, James Gatrel obtained from the court of common pleas of Franklin county the allowance ,of an alternative writ of mandamus, among other things commanding said Rutter to cause the patient to be returned to the hospital or show cause why he should not do so. The answer of the superintendent contains, among others, the following allegations: “Jane Gatrel, wife of said relator, was received as a patient at the Columbus Asylum for the Insane on or about the 27th day of August, 1880, during the administration of Dr. Firestone as superintendent thereof, and was an immate of said asylum when your respondent took charge of the same as superintendent on or about the 15th day of March, 1S81: that said Jane Qatrel has shown neither homicidal nor suicidal tendency or disposition since her admission as a patient into said asylum; that from the date of such admission said Jane was afflicted with a mild form of insanity, unaccompanied by violence, and this respondent had personal knowledge of her case from the commencement of his superintendency ; that on or about the 2d day of May, 1881, your respondent, as superintendent, received a letter from the sister of said Jane, Mrs. Catharine Kegan, residing in San Antonio, Texas, in reference to said patient, which letter your respondent answered ; that the result of the correspondence with said sister was an offer or proposition from her to take charge of said Jane, take her on a visit to her home in San Antonio, temporarily, keep her safely, and return her to said asylum when so directed by its superintendent; that this respondent accepted said proposition and entrusted said Jane to the personal care and custody of her said sister, who by authority of this respondent, under and pursuant to said arrangement, took charge of said Jane and conducted her on said visit to her home in San Antonio, leaving the asylum to make her journey on the 21st day of May, 1881; that your respondent has been advised of the safe arrival of said Jane and her sister, at the home of the latter in San Antonio, and within the past few days has received a letter from said sister reporting marked improvement in the health of said Jane; that your respondent was moved to accept said proposition by the following among other considerations, to wit: the removal temporarily of said Jane to the climate of the state of Texas, and to the new and different associations, promised to be beneficial to her health, and was, under the circumstances, in the judgment and opinion of your respondent as a physician and surgéon and the superintendent of said asylum, desirable and advisable as a part of her treatment as a patient. Your respondent further says that in what he has done he has exercised a just discretion for the best interests of said patient.”
    
      The trustees of the asylum fully ratified the action of the superintendent, as appears by their answer.
    A demurrer to the answer of Dr. Rutter was, on July 18, 1881, sustained, and a peremptory mandamus was awarded by which Dr. Rutter, as such superintendent, was required to use all the power and. authority he possessed to restore said Jane to the hospital, which order was affirmed in the district court of Franklin county ; and this proceeding in error is prosecuted by said Rutter in this court to reverse the judgment of affirmance and also the orders made by the court of common pleas.
    
      G. K. Wash, attorney-general, and J. T. Holmes, for plaintiff’ in error.
    
      Bolin & Grigsby, for defendant in error.
   Okey, O. J.

If the act of the superintendent, in permitting the patient’s sister to remove her temporarily to Texas, required the assent of the trustees of the hospital to render it valid, their subsequent assent, in view of the statute and the mode of conducting business at the hospital, should be regarded as equivalent to precedent authority. Assuming, then, without deciding, that a husband is entitled to a peremptory mandamus for the restoration of his wife to an insane asylum, where the superintendent has permitted her to be removed therefrom without authority, the question here is, whether such superintendent acting in good faith, with sole reference to the welfare of the patient, may, with the assent of the trustees, permit such temporary removal under the circumstances stated.

“ A patient may be discharged from an asylum for the insane upon the application of the superintendent to one of the trustees, and order of such trustee.” Rev. Stats. § 709. “ If the friends of a patient ask his discharge from the asylum, the superintendent may require a bond to be executed to the state, in such sum and with such sureties as he deems proper, conditioned for the safekeeping of such patient.” Rev. Stats. § 717. Other provisions relate to the powers and duties of the trustees and officers of such institutions ; but it was obviously impossible to provide in detail for the management of such. asylums, and hence it is provided that the board of trustees shall establish such rules and regulations as may be deemed expedient for the government of such hospitals. Rev. Stats. § 639.

Much reliance is placed by the counsel for the relator on the statutory provision, that “all persons who have been or may hereafter be admitted into either of the asylums for the insane belonging to the state, shall. be maintained therein at the expense of the state.” Rev. Stats. § 700. No doubt this prohibits the maintenance of a patient, at the expense of the state, in any other place than the asylum. But it would lead to absurd consequences to hold that a patient cannot be taken beyond the walls of the asylum. If a dangerous epidemic should appear in such place, it cannot be doubted that there would be authority to remove the patients therefrom, and manifestly there would be such right in case of fire, and yet no provision is made for removal in case of either pestilence or fire. So, a visit to an exposition, or fair, or other like public place, is sometimes permitted, on the ground that it will be conducive to the patient’s restoration; but the statute confers on the superintendent no such express power. In fact, the power of the superintendent is measured, in no small degree, in matters of that sort, by the apparent welfare of the patient.

In no respect is the advance in civilization exhibited in a more marked degree than in the treatment of the insane. The harshness to which this unfortunate class was formerly srrbjected was in many cases revolting. But in this respect there has been a revolution, and the inmates of insane hospitals are now, as a rule, treated with kindness and a humane regard for their welfare. As we have seen, one still insane may be discharged from the asylum and placed in the care of friends. This, no doubt, may be done whether such friends live within the state or beyond its limits. The general rule that “ general words in statutes must always be construed in view of the territorial limit to the powers of the general assembly” (10 Ohio St. 121), has no application to the statutes upon this subject. Experience has shown that such change may be for the welfare of the patient, and desirable for other reasons. Ray’s Med. Jur. of Insanity, ch. XXYIII. There would seem to be as much reason for permitting the friends to have charge of the patient where the removal is temporary as in case of discharge ; nor is there any more reason for restricting such removal to a place within the state in one case than in the other. True, there is no absolute right in Mrs. Kegan or tbe superintendent to remove the patient from Texas to the Columbus asylum ; but the comity which in all similiar cases is constantly recognized, would doubtless permit such removal, and if need be the authorities of Texas would probably aid in such removal. "Wharton’s Conf. L. §§ 263, 269.

Construing the statutes relating to asylums and the insane in the liberal spirit in which they were enacted, and viewing the question before us as simply one of power, we are of opinion that the law places no such restriction as that claimed on the authority of the superintendent. We hold, therefore, that the court of common pleas erred in sustaining a demurrer to the answer of the superintendent, and that the district court erred in affirming the orders of the court of common pleas.

Judgment reversed.  