The proceedings in the instant case under section 1b of Act No. 196, Pub. Acts 1937 (Comp. Laws Supp. 1937, § 17329-2, Stat. Ann. 1938 Cum. Supp. § 28.1073[1]), are solely in the nature of an inquest and do not constitute a criminal proceeding in the sense that the prisoner is subjected to a trial for a statutory crime. Nevertheless, the statute is properly an amendment to the code of criminal procedure (3 Comp. Laws 1929, § 17116 et seq., Stat. Ann. § 28.841 et seq.). Certain other chapters of the criminal code deal with subjects properly embraced therein though not relating to the trial of any person for any particular crime. Chapter 11 deals with probation; chapter 12 with proceedings to prevent crime; and chapter 13 with proceedings for the discovery of crime. The criminal code attempts to assemble proceedings affecting or relating to crime and criminals and the act in question contains provisions which are germane, auxiliary and incidental to that general purpose. It therefore constitutes a proper amendment to the code and is embraced under the title thereof. People v.Palm, 245 Mich. 396.
Act No. 196, Pub. Acts 1937, does not provide punishment for any criminal offense nor does commitment thereunder constitute a conviction of a crime. The proceedings under the statute are brought to determine the mental and physical condition of a prisoner convicted of one of a number of sex crimes. Experience, unfortunately, has shown that sex offenders are too apt to be repeaters who possess an urge that prompts them upon their release to commit other sex crimes, frequently of the most serious nature. While these offenders are not classified legally as being insane, they are nevertheless suffering from obsessional or compulsive neuroses. They present *Page 61 an acute problem. They are pitiable objects sadly in need of hospitalization or institutionalizing for their own cure and safety as well as for the protection of the public. The statute recognizes this fact and seeks only to protect and possibly to cure these unfortunate and dangerous persons. It is analogous to those statutes providing for the commitment of the insane, feebleminded, dipsomaniacs, drug addicts, and persons infected with communicable diseases. The State unquestionably has the power to commit insane persons, Underwood v.People, 32 Mich. 1 (20 Am. Rep. 633), and to quarantine persons infected with communicable diseases.Rock v. Carney, 216 Mich. 280 (22 A.L.R. 1178). Such proceedings do not involve trials for crime, but are merely inquests. The mental and physical disorders with which sex degenerates are afflicted require their segregation and hospitalization just as much as similar treatment is required for insane persons and those infected with communicable diseases. To effect such segregation, no more than an inquest, as is provided by the instant statute, is required. The prisoner is not being committed as punishment for a crime and the proceedings do not constitute a criminal trial. Exparte Liggett, 187 Cal. 428 (202 P. 660); In reBresee, 82 Iowa, 573 (48 N.W. 991). For this reason, constitutional limitations applicable solely to trials for crimes are not violated even though not complied with by the statute.
The prisoner was convicted of the crime of gross indecency prior to the enactment of Act No. 196, supra, but the act is not an ex post facto law as to the present proceedings. The Constitution of 1908, art. 2, § 9, applies only to criminal offenses. Scott v. Smart,1 Mich. 295. The prisoner is not being tried for a previous criminal offense. An inquest is *Page 62 merely being held to determine whether he possesses "tendencies dangerous to public safety," at a time subsequent to the passage of the act.
The objection that the act is unconstitutional because it deprives the prisoner of a trial by a jury of the vicinage disappears when it is seen that the proceedings are not a trial for a criminal offense nor such as would have required a jury of the vicinage before the adoption of the Constitution. Article 2, § 19, of the Constitution of 1908 provides for a jury only in "every criminal prosecution." If, as in the instant case, the proceedings do not constitute a trial for a crime, the liberty of a convicted criminal may be restrained without a jury trial. People v. Dudley,173 Mich. 389. Article 2, § 13, in providing that "the right of jury trial shall remain," establishes only such right as existed prior to the adoption of the first Constitution, or, as stated in Swart v. Kimball, 43 Mich. 443, as was known to the previous jurisprudence of this State. There is abundant authority to the effect that a jury trial was not required at common law in proceedings for the commitment of insane persons and is consequently not required under the State Constitution. Crocker v. State, 60 Wis. 553 (19 N.W. 435); In re Bresee, supra; Ex parte Liggett,supra; Ex parte O'Connor, 29 Cal.App. 225 (155 P. 115);In re Bundy's Estate, 44 Cal.App. 466 (186 P. 811);Ex parte Dagley, 35 Okla. 180 (128 P. 699, 44 L.R.A. [N. S.) 389); In re Idleman's Commitment,146 Ore. 13 (27 Pac. [2d] 305); Groves v. Ware,182 N.C. 553 (109 S.E. 568); Ex parte Scudamore, 55 Fla. 211 (46 So. 279); Sharum v. Meriwether,156 Ark. 331 (246 S.W. 501); Hagany v.Cohnen, 29 Ohio St. 82. It is true that 1 Blume's "Transactions of the Supreme Court of Michigan, 1805-1814," p. 106, an inquiry into the *Page 63 sanity of a person was made by a jury. However, there is no authority to the effect that that was the only permissible procedure. 1 Michigan Territorial Laws, p. 376, provided for an inquest to determine sanity by the county commissioners or any other three "discreet persons." As no jury was necessary prior to the adoption of the Constitution, none is required under article 2, § 13, of the present Constitution. Since a jury trial is not required by the Constitution, such jury as is provided the prisoner under the act in question need not possess the essential incidents of a common-law jury. Exparte Shackleford, 188 Cal. 279 (204 P. 822);Groves v. Ware, supra. The commitment of a sex degenerate is similar to the commitment of an insane person; similar principles apply, and the fact that the inquest under section 1b of the act is made by a jury not of the vicinage violates no constitutional principles.
The statute applies only to sex degenerates who are not insane, and who have been previously convicted of a sex offense. The confinement of the application of the statute to sane persons is a reasonable classification and not a denial of equal protection under the law, since insane sex degenerates may be committed under 2 Comp. Laws 1929, § 6878 etseq. (Stat. Ann. § 14.801 et seq.). Nor does the fact that the act applies only to persons previously convicted of a sex offense create an unreasonable classification. The prior commission of a sex crime is a fair preliminary test of whether or not a person sexually abnormal is dangerous to the public safety.
To commit a prisoner under the statute, it must be proved that he is a "sex degenerate, or a sex pervert, or is suffering from a mental disorder characterized by marked sex deviation, and possessed of tendencies dangerous to public safety." The difficulty *Page 64 of defining specifically sex degeneracy, or a "marked sex deviation," in no way makes the law unconstitutional. The determination is made upon the testimony of doctors and others in the same manner as in insanity proceedings. The statute is sufficiently definite to satisfy due process and prohibits an arbitrary finding by those whose duty it is to make the inquiry and determination.
While the act is not as specific as it might be as of the right of the prisoner to notice and a hearing, the prisoner in the instant case was given full notice and an opportunity to be heard. Although a statute may not expressly provide for notice, it will not be held unconstitutional if the giving of such notice may be fairly implied. Smith v. State Boardof Medical Examiners, 140 Iowa, 66 (117 N.W. 1116). The provisions of the statute requiring that the court conduct an examination of the prisoner and that a jury hearing may be had unless waived implies that notice thereof shall be given to the prisoner. The very right to a hearing carries with it the accompanying right to notice thereof, and the right to present evidence. Dick v. Supreme Body of theInternational Congress, 138 Mich. 372; Hansen v.Railroad Co., 32 Wyo. 337 (232 P. 1101); State,ex rel. Hughes, v. Milhollan, 50 N.D. 184 (195 N.W. 292); Denver v. State Investment Co., 49 Col. 249 (112 P. 789, 33 L.R.A. [N. S.] 395). In several cases, although the statute considered failed to provide expressly for notice, such was implied from the right to a hearing. Ex parte Scudamore, supra; Ex parte Allen,82 Vt. 365 (73 A. 1078, 26 L.R.A. [N. S.] 232); GeorgiaRailroad Bank Trust Co. v. Liberty National Bank Trust Co., 180 Ga. 4 (177 S.E. 803); Yeomans v.Williams, 117 Ga. 800 (45 S.E. 73); Matter ofBlewitt, 131 N.Y. 541 (30 N.E. 587). The statute must, *Page 65 therefore, be construed to provide for the constitutional requirements of notice and a right to be heard, to be represented by counsel, and to present evidence. Had the prisoner not received such notice, he could successfully raise the question of lack of compliance with the statute.
I must conclude that section 1b of Act No. 196, Pub. Acts 1937, violates no constitutional limitations and that it was error for the lower court to dismiss the petition.
The order of dismissal should be reversed, without costs, a public question being involved, and the lower court should be ordered to proceed with the hearing.
BUSHNELL and McALLISTER, JJ., concurred with BUTZEL, J.