Ex parte Bentine

• Decision Date: 20 November 1923
• Citation: 196 N.W. 213,181 Wis. 579
• Parties: EX PARTE BENTINE.
• Court: Wisconsin Supreme Court

181 Wis. 579

196 N.W. 213

EX PARTE BENTINE.

Supreme Court of Wisconsin.

Nov. 13, 1923.

Dissenting Opinion Nov. 20, 1923.

Original application by William Bentine for writ of habeas corpus. Writ denied.

Eschweiler, J., dissenting.

Jos. F. Studnicka, of Milwaukee, for Bentine.

H. L. Ekern, Atty. Gen., and Geo. A. Shaughnessy, Dist. Atty., and Roland J. Steinle, Asst. Dist. Atty., both of Milwaukee, for the State.

JONES, J.

Petitioner was convicted of having carnally known and abused a female of the age of 16 years in violation of section 48, c. 422, Laws 1921, which was as follows:

“Any person over eighteen years of age who shall unlawfully and carnally know and abuse any female under the age of * * * eighteen years shall be punished by imprisonment in the state prison not more than thirty-five years nor less than one year, or by a fine not exceeding two hundred dollars; and any person of the age of eighteen years or under who shall unlawfully and carnally know and abuse any female under the age of eighteen years shall be punished by imprisonment in the state prison not more than ten years nor less than one year, or by fine not exceeding two hundred dollars.”

Petitioner was sentenced to serve a term of five years in the state prison. Thereafter he secured an order requiring the warden to show cause on September 18th why an application for writ of habeas corpus should not be allowed.

The first claim of counsel for petitioner is that the statute under which the defendant was convicted was enacted merely as routine business without consideration of existing statutes and by mistake.

It is argued that chapter 422, Laws 1921, of which this statute is a part, was prepared by the revisor of statutes, and bore the following title:

“To repeal * * * certain sections of the statutes that have been either superseded or repealed by implication; to repeal certain sections of the statutes that are duplicates of other sections; to strike out or remove obsolete and dead matter from certain sections of the statutes; to renumber and relocate certain sections of the statutes that have been improperly classified; to correct in certain sections of the statutes mistaken references to other sections; and to correct typographical errors, misprints and other errors in certain sections of the statutes.”

It is further argued that section 48 of the bill in question was hidden away among the last of 53 sections under a misleading title, and was passed by the Senate and Assembly on the same day that they considered another act dealing with the same subject, under the misapprehension that the revisor in preparing the bill was acting within the scope of his authority, and that the act included only corrective legislation.

Section 43.08, Stats. is relied on as tending to show that the revisor acted beyond his authority in introducing into such a bill provisions changing in so important a manner the substantive law. The following note was added to the section as prepared by the revisor:

“Bill Footnote. Correction made to harmonize it with the rest of the statutes, and make it consistent.”

It is argued that this indicated that the revisor was not aware of the condition of the law at that time.

A few days before the passage of the act in question the Legislature had enacted a statute in the following form:

“Any person over eighteen years of age who shall unlawfully and carnally know and abuse any female under the age of 16 years shall be punished by imprisonment in the state prison not more than thirty-five years nor less than one year, or by a fine not exceeding two hundred dollars; and any person of the age of eighteen years or under who shall unlawfully and carnally know and abuse any female under the age of * * * sixteen years shall be punished by imprisonment in the state prison not more than ten years nor less than one year, or by fine not exceeding two hundred dollars.” Section 1, c. 404, Laws 1921.

No claim is made that the chapter, including the section first above quoted, was not passed in conformity with the statutes and rules governing legislative procedure, but we are asked to infer that, by reason of the manner in which the section was prepared and passed, the Legislature had overlooked the very recent statute on the same subject which had been enacted to cure the same inconsistencies in existing statutes at which the section under consideration was aimed.

There is undoubtedly force in the argument that the first section adopted by the Legislature of 1921 was better adapted to harmonize existing statutes relating to sexual crimes than the last, but the statute under which petitioner was convicted was the last word of the Legislature on the subject. The Legislature of 1923 had the opportunity to correct the mistake, if they supposed that a mistake had been made.

[1] The statute under consideration is unambiguous, and contains no provisions inconsistent with each other. The fact that it may be inconsistent with a former statute but recently enacted is no reason for setting it aside by judicial action, even if we should deem it less deserving of approval. That is a question for the Legislature, not the courts.

[2][3] The bill was not introduced by the revisor. He prepared it as a draftsman pursuant to his duty, and when the bill was introduced it was referred to committees, and was regularly enacted as a statute. Since the section was enacted in conformity with the statute and rules regulating the proceedings of the Legislature, we do not consider that we would be justified in setting it aside, because of the manner in which the bill was prepared or because it contained many other provisions on other subjects.

“When a statute is plain and unambiguous in its terms and not susceptible of more than one construction, courts are not concerned with the consequences that may result therefrom, but must enforce the law as they find it. If the meaning of a statute is plain, and its provisions are susceptible of but one interpretation, its consequences, if objectionable, can only be avoided by a change in the law itself, to be effected by legislative, and not judicial, action; the wisdom or policy of the law, the motives that prompted its enactment, and the reasonableness or justice of its provisions cannot be taken into consideration by the courts in construing the statute.” 25 Ruling Case Law, 1017; Mellen L. Co. v. Ind. Comm., 154 Wis. 114, 142 N. W. 187, L. R. A. 1916A, 347, Ann. Cas. 1915B, 997.

The statutes above quoted relate to statutory rape. Counsel for petitioner cites two other statutes, one relating to rape, the other to fornication. They are as follows:

“Any person who shall ravish and carnally know any female of the age of sixteen years or more, by force and against her will, shall be punished by imprisonment in the state prison not more than thirty years nor less than one year; but if the female shall be proven on the trial to have been, at the time of the offense, a common prostitute, he shall be so punished not more than seven years nor less than one year. Section 4381, Stats.

“Any man who commits fornication with a sane single female over the age of sixteen years, each of them shall be punished by imprisonment in the county jail not more than six months or by fine not exceeding one hundred dollars, or by both such fine and imprisonment. Any man who commits fornication with a sane female of previous chaste character under the age of twenty-one years shall be punished by imprisonment in the state prison not more than four years or by fine not exceeding two hundred dollars, or by both fine and imprisonment.” Section 4580.

[4][5] Counsel for petitioner argue that the provisions of the section under consideration are absurd when compared with other sections relating to sexual crimes, and that its enforcement would lead to most unjust results; for example, that one convicted of statutory rape under this section may be sentenced to state prison for 35 years while one convicted of forcible rape may be sentenced for only 30 years; that forcible rape is a greater offense than statutory rape, and that the law applicable to the lesser crime is more drastic than that applicable to the greater. It is also argued that the statute could not have intended that in a given case the district attorney could elect whether he would proceed under the statute as to statutory rape, a felony, or that relating to fornication, a misdemeanor.

In the argument much reliance is placed on the case of State v. Wentler, 76 Wis. 89, 44 N. W. 841, in which it was held that--

“The attempted amendment of section 4382, R. S. by chapter 193, Laws of 1887 (providing that ‘any person who shall unlawfully and carnally know and abuse any female child under the age of fourteen years, shall be punished by imprisonment in the state prison during his natural life’) is held void, because of the uncertainty and confusion arising therefrom when considered in connection with the laws relating to fornication, adultery, seduction, rape, and incest.”

The statutes relating to sexual offenses which had been adopted up to that time were summarized, and the view was expressed that the Legislature could not have intended, if it had the power to do so, to give the district attorney the right in his discretion--

“to punish one man for the crime of fornication, another for adultery, another for incest, another for seduction, and another under section 4382 as amended, when the facts in each case would make each of the defendants guilty of the crime described in and punished by the amended section 4382, as well as of the specific offense with which he was charged in the information.” State v. Wentler, supra, 76 Wis. 94, 44 N. W. 843.

In Loose v. State, 120 Wis. 115, 97 N. W. 526, some of the criticisms of the legislative policy made in the Wentler Case were withdrawn, and, as stated in the syllabus, it was held:

“The fact that a person charged with the crime of rape under ...