The petition for the writ of habeas corpus shows that in January, 1891, in the municipal court of Milwaukee county, the petitioner was convicted of the crime of burglary, as defined in sec. 4408, R. S., and was sentenced by the court to imprisonment in the state prison at hard labor “ for not less than three years nor more than eight years.” The sentence is in the form prescribed by sec. 4733, R. S., as amended by ch. 390, Laws of 1889; that is to say, it is a general or indeterminate sentence. The petitioner is now held in custody under such sentence, and prays that a writ of habeas corpus issue to. the warden of the state prison, to the end that the petitioner may be released from such imprisonment. The sole ground upon which the writ is asked is that the statute under which the petitioner was sentenced contravenes the constitution, in that it attempts to confer upon the state board of supervision (now, by ch. 221, Laws of 1891, the state board of control) both executive and judicial powers, which are exclusively vested by the constitution in the governor and the courts, respectively; and hence that the statute is void and the imprisonment illegal.
The question sought to be raised on this petition of the validity of the statute authorizing indeterminate sentences and conferring upon the state board of control power to discharge or parole a prisoner so sentenced, after he has served the minimum term of his sentence, is an interesting and very important one, and it is not at all clear how it should be solved. Statutes in Michigan and Ohio authorizing such sentences, and conferring upon the prison boards of managers similar powers, at least as regards the parole of such prisoners, have been passed upon by the respective supreme courts of those states. People v. Cummings (Mich.), 50 N. W. Rep. 310; State ex rel. Att'y Gen. v. Peters, 43 Ohio St. 629. In the Michigan case the question arose on writ of error, and the statute was held valid for the minimum term of the sentence, and void in so far as it attempted to authorize the prison authorities to hold the prisoner beyond that time. The Ohio case was a quo warranto brought by the attorney general in behalf of the state against the prison directors. The relation charged such directors with usurpation in assuming to exercise the franchises, powers, and privileges attempted to be conferred upon them by the statute. This, of course, raised the question of the validity of such statute, and the court held it valid.
We have deemed it proper to call attention to the above statutes, and to state, in a general way, the objections ur£ed against their validity, and the adjudications upon similar statutes in other states. When the question of the validity of those statutes shall be properly presented to this court, it will receive the consideration which its importance demands. Until that time the question must remain undetermined by this court.
By the Court.— The petition is denied.