State ex rel. Larkin v. Ryan

• Decision Date: 28 February 1888
• Citation: 70 Wis. 676,36 N.W. 823
• Parties: STATE EX REL. LARKIN v. RYAN, COURT COM'R.
• Court: Wisconsin Supreme Court

70 Wis. 676

36 N.W. 823

STATE EX REL. LARKIN

v.RYAN, COURT COM'R.

Supreme Court of Wisconsin.

February 28, 1888.

Original proceeding by certiorari.

May 5, 1887, the relator was committed to the insane asylum, under chapter 194, Laws 1887, and by virtue of the following commitment, to-wit: “ The State of Wisconsin, to the superintendent of the Milwaukee Insane Asylum, greeting: Whereas, heretofore Charles H. Larkin, by his complaint in writing addressed to Hon. JAMES A. MALLORY, judge of the municipal court of the city and county of Milwaukee, being a court of record within said county, charged his son, Courtland P. Larkin, with being an inebriate, habitual or common drunkard; and whereas, upon said complaint the said Courtland P. Larkin was arrested and brought before the said Hon. JAMES A. MALLORY, judge of said municipal court, for trial, and a trial of such charge duly had before the said judge and a jury, as demanded by the said Courtland P. Larkin; and whereas, upon such trial the said Courtland P. Larkin was convicted of being an inebriate, habitual and common drunkard; and whereas, before any sentence upon such conviction, the said Charles H. Larkin did execute a bond to the state of Wisconsin, in the sum of one thousand dollars, with sufficient surety, which bond was approved by the said judge, conditioned that he would pay for the support and treatment of said Courtland P. Larkin, such inebriate, habitual and common drunkard, during his confinement, as required by law; and whereas, the said Hon. JAMES A. MALLORY, judge of the municipal court of the city and county of Milwaukee, did upon such conviction on this day sentence the said Courtland P. Larkin to confinement in the Milwaukee county insane asylum, situate in the county of Milwaukee and state of Wisconsin, for the period of two years from this date: Therefore, in the name of the state of Wisconsin, you are hereby commanded to receive the said Courtland P. Larkin into the said Milwaukee county insane asylum, pursuant to said sentence, and there confine him for the period of two years from this date, unless he should sooner be discharged pursuant to law. Given under my hand at the city of Milwaukee, this 5th day of May, 1887. JAMES A. MALLORY, Judge of the Municipal Court of the City and County of Milwaukee. [Municipal court seal Milwaukee county.]” Some months after such commitment, and upon the petition of said relator to the effect that he was unlawfully detained of his liberty, in that said chapter 194, Laws 1887, was unconstitutional and void, he was brought before said court commissioner by the superintendent of the asylum having him in custody, under a writ of habeas corpus; and, after a hearing had thereon, the motion of said relator to be discharged from such custody was denied by said commissioner, and he was thereupon remanded by said commissioner to the custody of said superintendent. Thereupon, and in pursuance of a writ of certiorari issued by this court, December 3, 1887, the said commissioner certified to this court all and several “the proceedings, writs, orders, and all things pertaining thereto in the matter” of said habeas corpus.Austin, Runkel & Austin, for relator.

Jenkins, Winkler & Smith, for respondent.

CASSODAY, J.

The relator's right to a discharge depends upon the validity of chapter 194, Laws 1887, under which he was arrested, tried, convicted, and sentenced to confinement for the period of two years. This act is certainly anomalous. It is entitled “An act relating to inebriates and habitual drunkards.” The language of the act, however, leaves it somewhat doubtful whether it should be regarded as penal or paternal. If it is to be regarded as penal, then its validity would seem to turn upon widely different considerations than though it were paternal; and if it is to be regarded as paternal, then its validity would seem to turn upon widely different considerations than if it were penal. It reads: “Any person who shall be charged upon the complaint of another with being an inebriate, habitual or common drunkard, shall be arrested and brought before a judge of a court of record for trial in the same manner that offenders may be arrested and brought to trial before a justice of the peace; and if he shall be convicted of being an inebriate, habitual or common drunkard, he shall be sentenced to imprisonment or confinement in any inebriate or insane asylum in this state, for a period not exceeding two years, nor less than three months: provided, however, that before such sentence some relative or friend of such inebriate, habitual or common drunkard, shall execute a bond in the sum of $1,000, with sufficient surety, to be approved by such judge, to the state of Wisconsin, conditioned that he will pay for the support and treatment of such inebriate, habitual or common drunkard during his imprisonment and confinement.”

1. Is it penal? and, if so, is it a valid enactment? The words “charged,” “arrested,” “for trial,” as “offenders,” “convicted,” and “sentenced to imprisonment or confinement” “for a period” to be definitely fixed, would seem to indicate an intention to make it a criminal offense to be “an inebriate, habitual or common drunkard,” under any and all circumstances. The police powers of the state are certainly not only sweeping, but potential, when legitimately exercised. According to the more recent utterances of the supreme court of the United States, even the late amendments to the federal constitution were not “designed to interfere with the power of the state, sometimes termed its police power, to prescribe regulations to promote the health, peace, morals, education, and good order of the people, and to legislate so as to increase the industries of the state, develop its resources, and add to its wealth and prosperity.” Barbier v. Connolly, 113 U. S. 31, 5 Sup. Ct. Rep. 357, per FIELD, J. This language was expressly sanctioned by Mr. Justice HARLAN, speaking for the court, in the very recent case of Mugler v. State, 123 U. S. 663, 8 Sup. Ct. Rep. 298. In a recent work on the Limitations of Police Power, it is, in effect, asserted that there can be no lawful punishment of mere drunkenness, so long as it is concealed in strict privacy, without any exposure to or interference with the public or any individual. Tied. Lim. Police Power, 302. In other words, that strictly private and concealed vice of the individual cannot be lawfully made a public offense. The language of the act in question would certainly admit of such conviction without such exposure of publicity. But we are not called upon to determine whether the act is invalid for that reason, unless we should conclude that the act must be regarded as a penal statute,--a question which will presently be determined. If to be “an inebriate, habitual or common drunkard,” was intended to be made a criminal offense by the act, then it should have provided for or recognized the right of a “public trial by an impartial jury of the county or district wherein the offense” should be “committed; which county or district” should “have been previously ascertained by law.” Section 7, art. 1, Const. Wis. The right to such “public trial” thus secured is manifestly a trial by jury in a court of law, having jurisdiction by virtue of law. The fact that no such trial is given, and no such jurisdiction is conferred or recognized in the act in question, constrains us to believe that it never was designed, and if it was, that it cannot be regarded, as a valid penal statute. The act, in substance, provides that any person so charged “shall be arrested and brought before a judge of a court of record for trial,” and if convicted, and the requisite bond given, “he shall be sentenced,” etc. We understand this to mean any judge of any court of record in the state, even at chambers. True, this relator was so brought before the “judge of the municipal court of the city and county of Milwaukee, being a court of record within said county.” This is recited in the commitment. So it is recited therein that the complaint so charging the relator, was “addressed to” said judge (naming and describing him) and that “upon said complaint, the said” relator “was arrested and brought before the said” judge (again naming and describing him) “for trial,” and that “a trial of such charge” was “duly had before the said judge and a jury, as demanded by the said” relator; and that “upon such trial the said” relator “was convicted of being an inebriate, habitual and common drunkard;” and that upon the bond being given, “the said” judge (again naming and describing him) “did, upon such conviction, * * * sentence the said” rela...