Petition of Bergin

Lyon, J. The reasons assigned by the learned counsel for the plaintiff in error why the order of the circuit judge refusing to discharge his client from custody should he reversed, include those urged in the municipal court in support of the motions to quash the information and in arrest of judgment. Such of them as are deemed material will be considered in their order. I. It is argued that the act of 1871, ch. 187, authorizing the commencement of criminal prosecutions by information instead of indictment, is unconstitutional and void. In The State v. Rowan, decided since the habeas corpus proceedings were com menced, this court, after very grave consideration, held other [386] ■wise. That question is not, therefore, an open one in this state, and no further discussion of it is necessary in this case. II. Although the act of 1871 provides in terms that all of its provisions shall apply to the municipal court of the city and county of Milwaukee (sec. 56), yet it is claimed that this provision is inoperative and void, for the reasons (if we understand the argument), that such court is a local tribunal, and the law creating it is, therefore, a private and local law, and, inasmuch as the act of 1871 contains other matters, and this particular subject is not expressed in the title, as regards this merely private and local matter the provision is a violation of art. IV., sec. 18, of the constitution. A short and most conclusive answer to this position is, that this court in In re Boyle, 9 Wis., 264, held that the act of 1859 establishing such court is a general law. III. The next position taken on behalf of the plaintiff in error is, that under sec. 2 of art. I. of our constitution, involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, is prohibited, and that the sentence that he be imprisoned at hard labor, which is involuntary servitude, is a violation of that constitutional provision, because he has not been convicted of a crime, but only of a misdemeanor. A “crime” is defined by Blackstone tobe “an act committed in violation of a public law either forbidding or commanding it.” 4 Bl. Com., 5. By this is meant, of course, those wrongs of which the law takes cognizance as injurious to the public, and punishes in what is called a criminal proceeding, prosecuted by the state in its own name, or in the name of the people or the sovereign. 1 Bishop on Or. Law, § 32. Blackstone also defines a misdemeanor to be a less heinous species of crime; an indictable offense not amounting to felony. These definitions are correct beyond all question ; and they show that a misdemeanor is a crime, in the sense in which the [387] word “ crime ” is used in the law. We must presume that the word is used in the same sense in the constitution. It follows that it is competent for the legislature to authorize the courts to sentence persons convicted of misdemeanors to imprisonment at hard labor. IY. But we understand the counsel to argue that -the law which assumes to authorize the courts of Milwaukee county to sentence persons so convicted to confinement at hard labor in the house of correction, is unequal in its operation in that it applies to no other county in the state, and is therefore void. We do not find it necessary to decide whether the law would be void for that reason, because the argument is based upon a misapprehension of the facts. In 1859, the legislature enacted as follows: “Whenever any person shall hereafter be convicted of any criminal offense, and sentenced to imprisonment in the county jail for a term exceeding six days, the court may also sentence such person to be kept at hard 'labor during the term of his or her imprisonment, either within or without the jail, as hereinafter provided.” Tay. Stats., 1948, § 5. The subsequent section empowers boards of county supervisors to adopt such orders, rules and regulations as they may deem best for carrying out the provisions of the statute in that behalf. The power thus granted is full and complete, and probably authorizes each such board of supervisors to establish a house of correction. And it is believed that if those boards would exercise that power more freely, or if they would in some other manner provide the necessary facilities for employing those prisoners in the county jails under sentence, in some branch of productive labor, and if the legislature would make it compulsory upon the courts to sentence to hard labor in all cases where imprisonment in the county jail is awarded against any convict, the public interests and the best interests of the prisoners themselves would be thereby greatly promoted. The law which authorized the establishment of a house of correction is not, therefore, peculiar to that county, at [388] least not necessarily so; and there is no court of criminal jurisdiction in this state which, is not empowered hy law, in proper cases, to sentence persons convicted of misdemeanors to confinement at hard labor. Hence the law is equal in its operation throughout the state. Besides, ch. 332, P. & L. Laws of 1870, makes the house of correction of Milwaukee the county jail of that county. It is true that in the case of State ex rel. Kennedy v. Brunst, 26 Wis., 412, this court held that the provision contained in the act which required the sheriff to deliver to the inspector of that institution all prisoners in his custody in the former jail of that county, is unconstitutional and invalid. But the court did not hold, and is not now prepared to hold, that such house of correction is not a legal county jail for the confinement of persons sentenced to imprisonment at hard labor therein. V. The other objections- of any importance to the legality of the conviction and sentence of the plaintiff in error seem to be included in the proposition or claim that the municipal court had not as plenary power in the matter as a circuit court would have had under the constitution and general laws of the state. The proposition is entirely untenable; for, by the act of 1859 creating the municipal court, the general laws of the state relating to the powers and duties of courts of record in criminal cases were expressly extended to, and conferred upon, such court. (Sec. 10). Hence in all criminal matters of which it has jurisdiction, the powers of that court are as ample and complete, and its duties are the same, as are the powers and duties of the circuit court in like cases. We think that the plaintiff in error was lawfully imprisoned in the house of correction, and that Judge Small was correct in remanding him to the custody of the inspector thereof. By the Court.— Order affirmed.