
126 S.E.2d 489 (1962)
257 N.C. 593
In the Matter of Flora Elizabeth WILSON.
No. 453.
Supreme Court of North Carolina.
July 10, 1962.
*490 T. W. Bruton, Atty. Gen., Richard T. Sanders, Staff Attorney, Raleigh, for the State.
Louis Rabil, Douglas A. Clark, Washington, D. C., Michael Rabil, Malcolm B. Seawell, Raleigh, for petitioner, appellant.
HIGGINS, Justice.
Mrs. Wilson, by habeas corpus, challenges the legality of her restraint upon the ground the clerk's order committing her to the State Hospital at Butner violated her rights under Article I, Section 17, Constitution of North Carolina, and under the Due *491 Process Clause of the 14th Amendment to the Constitution of the United States. The original order of commitment for 60 days observation and treatment and the follow-up order for additional observation and treatment for four months have terminated. However, the permanent order entered on October 14, 1959, is the basis of her present restraint.
The clerk and the hospital authorities have been proceeding under G.S. § 122-46. In determining the validity of the final order the previous orders for observation and treatment do not create any presumption of mental incapacity. "Neither the institution of a proceeding to have an alleged mentally disordered person committed for observation as provided in this section, nor the order of commitment by the clerk as provided in this section shall have the effect of creating any presumption that such person is legally incompetent for any purpose. Provided, however, that if a guardian or trustee has been appointed * * * under G.S. 35-2 or 35-3 the procedure for restoration to sanity shall be as is now provided in G.S. 35-4 and 35-4.1."
The foregoing quotation was by amendment to G.S. § 122-46, enacted by the General Assembly at the 1957 Session, effective June 10th of that year. The method of showing restoration under G.S. § 35-4 is by petition of any friend or relative alleging sanity, filed before the clerk of the superior court. "Whereupon the clerk shall issue an order, * * * to summon a jury of six freeholders to inquire into the sanity of the alleged sane person * * * The petitioner may appeal from the finding of said jury to the next term of the superior court when the matter * * * shall be regularly tried de novo before a jury."
The amendment of 1957 now provides that one committed under G.S. § 122-46 may be restored to sanity under G.S. §§ 35-3, 35-4 and 35-4.1. Failure of any such previous tie-in is reflected in a number of decisions of this Court. In re Harris, 241 N. C. 179, 84 S.E.2d 808; In re Cook, 218 N.C. 384, 11 S.E.2d 142; In re Sylivant, 212 N.C. 343, 193 S.E. 422; In re Chase, 193 N.C. 450, 137 S.E. 305. The amendment removes from G.S. § 122-46 the objection that a traditional trial by jury is not provided as a means of determining the issue of sanity. Apparently the requirement that a guardian be appointed and made a party is to give binding effect to an adverse verdict by the jury.
The record indicates that Mrs. Wilson was not present before the clerk at the time the final order of commitment was entered. The record indicates she was neither given notice nor an opportunity to be heard. There is nothing to indicate that she was advised of the medical reports, nor was she given opportunity to challenge the findings which the clerk appears to have used as the only basis for his commitment order. True, G.S. § 122-46.1 provided: "Upon the basis of this report, the clerk * * * is authorized to order said person discharged or to order him to remain at the hospital as a patient, as the facts may warrant." (Emphasis added.)
Does the term "as the facts may warrant," confine the scope of the clerk's inquiry to the report, or does it contemplate notice and a hearing? If notice and hearing, the requirement was not met. If it does not contemplate a hearing, Mrs. Wilson is restrained of her liberty without due process of law. Article I, Section 17, Constitution of North Carolina; 14th Amendment to the Constitution of the United States. "Due process of law implies the right and opportunity to be heard and to prepare for the hearing." State v. Wheeler, 249 N.C. 187, 105 S.E.2d 615; In re Gupton, 238 N.C. 303, 77 S.E.2d 716; Eason v. Spence, 232 N.C. 579, 61 S.E.2d 717; Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791; Simon v. Craft 182 U.S. 427, 21 S.Ct. 836, 45 L.Ed. 1165; Holden v. Hardy, 169 U.S. 366, 18 S.Ct. 383, 42 L.Ed. 780; 16 C.J.S. Constitutional Law § 138, p. 578. "An order for the commitment *492 of a person to an insane hospital is essentially a judgment by which he is deprived of his liberty, and it is a cardinal principle of English jurisprudence that before any judgment can be pronounced against a person there must have been a trial of the issue upon which the judgment is given." In re Boyett, 136 N.C. 415, 48 S.E. 789, 67 L.R.A. 972. The guarantees imbedded in the Constitution are not subject to modification or repeal by the legislature. State v. Mitchell, 202 N.C. 439, 163 S.E. 581
By reason of the lack of notice to Mrs. Wilson and an opportunity for her to be heard on the question of her sanity, the order of commitment under which she is now restrained violated her constitutional rights. Of course, detention of an alleged insane person for a short period of time pending observation is permitted.
However, the judgment that Mrs. Wilson is lawfully detained and that she is now insane exceeds the scope of the habeas corpus hearing.
While motion may be made in the commitment proceeding to vacate the order now in effect, the result would probably be another hearing after notice. As a more practical approach, however, a guardian may be appointed upon the basis of the superintendent's certificate as provided in G.S. § 35-3. A petition, on the application of some relative or friend, may be filed invoking the procedure under G.S. § 34-4 and have a jury pass upon Mrs. Wilson's sanity. The guardian should be a party to the end the finding of the jury, if adverse, may have finality until a material change in condition occurs.
The order under review is
Reversed.
BOBBITT, Justice (dissenting in part).
The factual question or issue is whether plaintiff is now a mentally disordered person in need of hospital custody and care. In my view, she is entitled to have this factual question or issue passed upon by a jury in accordance with the procedure prescribed in G.S. § 35-4 upon her own motion or upon motion of a relative or friend.
The controversy relates solely to the continued confinement of petitioner. No guardian or trustee has been appointed under G.S. § 35-2 and § 35-2.1 or under G.S. § 35-3. Thus, the termination of an existing guardianship or trusteeship is in no way involved.
In my opinion, it would be inappropriate to appoint a guardian on the ground of her alleged mental disorder to act for petitioner in a proceeding in which she asserts her competency. Hence, I dissent from the suggestion in the opinion that the appointment of such guardian for petitioner would be appropriate.
