201 Wis. 20 | Wis. | 1930
The complaint alleges that on the 4th day of March, 1926, the defendant won an automobile as a lottery prize and that he sold the same for $750; that under the statutes of this state prohibiting lotteries said automobile was forfeited to the State, and judgment is demanded against the defendant for $750, the amount for which he sold the said automobile. A demurrer to the complaint was sustained because it was held that the State could recover the
The statutes of this state have effectually outlawed lotteries by penalizing any person who shall set up or permit any lottery or aid therein, or who shall knowingly permit the setting up of a lottery in any building owned or occupied by him, or permit the sale of any lottery ticket therein, or who shall offer for sale any lottery ticket, or advertise any lottery ticket for sale, as well as other enumerated activities incident to the conducting of a lottery. Secs. 348.01 to 348.05, inclusive. By sec. 348.06 it is provided that “All sums of money and every other valuable thing drawn or received by any person as a prize or share or part of a prize derived in, by or through any lottery or pretended lottery, contrary to the provisions of the preceding sections of this chapter, shall be forfeited to this state and may be recovered by any proper action brought by the attorney general or any district attorney in the name and behalf of the state.”
Under these statutes the defendant never acquired any title to this automobile. The title was immediately vested in the State upon its receipt by the defendant as a lottery prize. It is the universal rule that whenever “a statute enacts that upon the commission of a certain act specific property used in or connected with that act shall be forfeited, the forfeiture takes effect immediately upon the commission of the act. The right to the property then vests in the United States (State), although their (its) title is not perfected until judicial condemnation; the forfeiture constitutes a statutory transfer of the right to the United States at the time the offense is committed; and the condemnation, when obtained, relates back to that time, and avoids all intermediate sales and alienations, even to purchasers in good faith.” U. S. v. Stowell, 133 U. S. 1, 16, 17, 10 Sup. Ct.
It is claimed by the defendant, however, that the State has no action against him for the recovery of the proceeds received from a sale of the automobile, but that the sole remedy of the State is against the automobile itself. Cases are cited to our attention in which it is declared that proceedings to enforce forfeitures are proceedings in rem against the property forfeited. It is true that proceedings to enforce forfeitures are generally of that character, but this does not spring from any inherent or constitutional necessity. So far as we have been able to ascertain, such proceedings are indicated by either the punitive or procedural statutes under which they are prosecuted, which provide that seizure constitutes the act culminating the forfeiture. It is believed that this element will be found in every statute enacted by Congress providing for a forfeiture. That the character of the procedure for the enforcement of a forfeiture depends upon the statute under which the forfeiture is sought to be enforced will appear from a consideration of U. S. v. Stowell, 133 U. S. 1, 10 Sup. Ct. 244; Goldsmith-Grant Co. v. U. S. 254 U. S. 105, 41 Sup. Ct. 189; U. S. v. Grundy, 3 Cranch, 337; U. S. v. Loomis, 297 Fed. 359; People v. Three Barrels Full, 236 N. Y. 175, 140 N. E. 234; Traffic Truck Sales Co. v. Justice’s Court, 192 Cal. 377, 220 Pac. 306.
In U. S. v. Loomis, 297 Fed. 359, we find the statement that “forfeiture can only be declared when the thing sought to be forfeited was lawfully taken into possession.” As a general proposition that statement is entirely too broad, and
In the instant case the statute which declares the forfeiture simply provides that the prize “shall be forfeited to this state and may be recovered by any proper action brought by the attorney general or any district attorney in the name or in behalf of the state.” It is urged by the respondent that the only thing that can be recovered under this statute is the prize itself, and that as the statute imposes a forfeiture it should be strictly construed. It is a general principle well recognized that a penal statute is to be strictly construed against the State. There is another principle of statutory construction, however, of equal force and potency, that statutes shall be construed so as to carry out the legislative intent. As said in U. S. v. Stowell, 133 U. S. 1, at p. 12 (10 Sup. Ct. 244) : “By the now settled doctrine of this court, . . . statutes to prevent frauds upon the revenue are considered as enacted for the public good and to suppress a public wrong, and therefore, although they impose penalties or forfeitures, not to be construed, like penal laws generally, strictly in favor of the defendant; but they are to be fairly and reasonably construed, so as to carry out the intention of the legislature.”
The legislature of this state as well as of every other state of the Union stamps lotteries as inimical to public policy. It makes contraband of lottery prizes and plainly declares that no one shall profit by their operation. All
So far we have discussed only sec. 348.06, but our conclusion is corroborated by the provisions of ch. 288, Stats. That chapter relates to the procedure for the collection of forfeitures. By sec. 288.01 it is provided that “In all cases, not otherwise specially provided for by law, where a forfeiture shall be incurred by any person and the act or omis
By the Court. — Order reversed, and cause remanded with instructions to overrule the demurrer,