State v. Arnold

• Decision Date: 05 February 1935
• Parties: STATE v. ARNOLD.
• Court: Wisconsin Supreme Court

217 Wis. 340

258 N.W. 843

STATE

v.ARNOLD.

Supreme Court of Wisconsin.

Feb. 5, 1935.

Appeal from orders and from a judgment of the Municipal Court of Milwaukee County; Robert S. Cowie, Judge.

Affirmed.

Defendant, Ewart Arnold, was prosecuted for the illegal possession of a slot machine so constructed as to hold indecent articles contrary to the provisions of section 351.235, Stats. The case was tried originally in the district court of Milwaukee county, and defendant found guilty. On December 30, 1933, defendant appealed to the municipal court of Milwaukee county, and on January 19, 1934, was granted a new trial. The case was tried to the court, a jury trial having been waived, and defendant found guilty as charged in the complaint. Defendant made a timely motion to make the complaint more definite and certain, or, in the alternative, to quash the complaint. Defendant appeals from orders denying these motions, and from the judgment of conviction. The facts will be stated in the opinion.

Bowman, Hofer & Minor, of Milwaukee, for appellant.

James E. Finnegan, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and William A. Zabel, Dist. Atty., Herman A. Mosher, Deputy Dist. Atty., and Arthur J. Schmid, Asst. Dist. Atty., all of Milwaukee, for the State.

WICKHEM, Justice.

Defendant is the lessee of an oil station in the city of Milwaukee. As a part of the service equipment, defendant maintains two washrooms, one for women and the other for men. Two detectives of the Milwaukee police department entered the station on December 19, 1933, and asked permission to use the men's washroom. One of the officers found attached to the wall of the washroom a slot machine. He inserted 10 cents in this slot machine and received a cartridge containing a rubber article, commonly used for contraceptive purposes. This is the basis of the prosecution. On this machine was a sign, “Sold only for the prevention of disease,” and “Minors are prohibited to operate this machine.” The purchase was made for purposes of evidence, and not for the purpose of illegal use. The machine is not constructed for the sole purpose of vending articles of the character purchased by the officers, but will automatically vend any merchandise so packed as to conform to its size requirements. The defendant had permitted this machine to be placed on his premises and received a commission on the amount taken in by the machine. He had nothing to do with the placing of the cartridges or other contents in the slot machine.

Section 351.235, Stats., provides as follows:

“351.235 Advertising or display of indecent articles, sale in certain cases prohibited. (1) As used in this chapter, the term ‘indecent articles' means any drug, medicine, mixture, preparation, instrument, article or device of whatsoever nature used or intended or represented to be used to procure a miscarriage or prevent pregnancy.

(2) No person, firm or corporation shall publish, distribute or circulate any circular, card, advertisement or notice of any kind offering or advertising any indecent article for sale, nor shall exhibit or display any indecent article to the public.

(3) No person, firm or corporation shall manufacture, purchase, or rent, or have in his or its possession or under his or its control, any slot machine, or other mechanism or means so designed and constructed as to contain and hold indecent articles and to release the same upon the deposit therein of a coin or other thing of value.

(4) No person, firm or corporation shall sell or dispose of or attempt or offer to sell or dispose of any indecent articles to or for any unmarried person; and no sale in any case of any indecent articles shall be made except by a pharmacist registered under the provisions of chapter 151 or a physician or surgeon duly licensed under the laws of this state.

(5) Any person, firm or corporation violating any provision of this section shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not less than one hundred nor more than five hundred dollars or by imprisonment in the county jail for not to exceed six months, or by both such fine and imprisonment. In addition thereto, any license, permit or registration certificate issued under any law or ordinance to any such persons, firm or corporation, shall be canceled or revoked.”

This section, which was chapter 420, Laws of 1933, was originally introduced as a bill prohibiting birth control and providing a penalty. Its original purpose failed to secure the sanction of the Legislature, and the section in its present form, which appears to represent a compromise of conflicting views, was enacted.

Defendant's first contention is that the act is so vague and indefinite as to render it unconstitutional under the Fifth Amendment to the United States Constitution. The rule, as stated in Connally v. General Construction Company, 269 U. S. 385, 46 S. Ct. 126, 127, 70 L. Ed. 322, is as follows: “And a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.”

It is claimed that subdivision (1), § 351.235, in defining indecent articles, appears to include many drugs, medicines, instruments, and devices which, while capable of use either as contraceptives or abortifacients, have many innocent and lawful common uses. Coming particularly to subdivision (3), under which defendant was prosecuted, it is claimed that this subsection is vague and indefinite in that it prohibits not the vending of indecent articles by a slot machine, but the manufacture, purchase, rent, or possession of any mechanism capable, by reason of its design and construction, of vending these articles. It is contended that if literally construed, this section, as well as subdivision (1), which is definitive of indecent articles, contains such broad and inclusive prohibitions of legitimate articles of commerce as to constitute an unreasonable, arbitrary, and unwarranted exercise of the police power. In support of this contention, it is urged that any antiseptic is capable of use as a contraceptive, including vinegar, sour milk, bichloride of mercury, as well as such proprietary antiseptics as Lysol, Listerine and Pepsodent. It is further contended that many drugs and devices having common legitimate uses are capable of being used as abortifacients, and that a law prohibiting their advertisement, display, or sale is an unwarranted interference with legitimate business. It is contended that the words of the act will not bear a limited meaning; that the court must virtually amend the act to achieve a sensible or sustainable act; and that when it does so, the act cannot be read by those who are affected by its provisions with any fair chance of arriving at its precise meaning, except by guess.

[1] The objections raised are serious ones. It is evident that the act is not drafted with the degree of precision that is desirable, although it must also be recognized that the subject-matter offered considerable difficulty to the draughtsman. The charge that the act is vague and obscure, and consequently void under the rule of the Connally Case, cannot be sustained merely because the act offers some difficulties and requires construction to arrive at its meaning. If, by the ordinary process of construction, a practical or...