State v. Grove

• Decision Date: 23 September 1890
• Citation: 46 N.W. 532,77 Wis. 448
• Parties: STATE v. GROVE ET AL.
• Court: Wisconsin Supreme Court

77 Wis. 448

46 N.W. 532

STATE

v.GROVE ET AL.

Supreme Court of Wisconsin.

Sept. 23, 1890.

Appeal from circuit court, Dane county.C. E. Estabrook, Atty. Gen., and L. K. Luse, Asst. Atty. Gen., for the State.

Lewis, Pfund & Briggs, for respondents.

TAYLOR, J.

This is a civil action commenced by the state against the respondents to recover the penalty prescribed in section 3, c. 248, Laws 1879. The action was commenced under the provisions of section 3294, Rev. St. 1878. This section reads as follows: “In all cases not otherwise specially provided for by law, where a forfeiture shall be incurred by any person, and the act or omission for which the same is imposed shall not also be a misdemeanor, such forfeiture may be sued for and recovered in a civil action; when such act or omission is punishable by a fine and imprisonment, or by fine or imprisonment, or is specially declared by law to be a misdemeanor, it shall be deemed to be a misdemeanor within this chapter. The word ‘forfeiture,’ as used in this chapter, shall include any penalty in money or goods other than a fine.” Section 3, c. 248, Laws 1879, reads as follows: “Every person who shall compound or put up for sale any food, drug, or liquor in casks, boxes, bottles, or packages, with any label, mark, or device whatever so as, and with intent, to mislead or deceive as to the true name, nature, kind, and quality thereof, shall be liable to a penalty of not to exceed five hundred dollars for the first offense, and for every offense after the first offense shall be punished by imprisonment in the state-prison for not less than one year nor more than ten years.” Section 3295, Rev. St., provides that the civil action for a forfeiture shall be brought in the name of the state as plaintiff. In the circuit court the respondents demurred to the complaint of the state on the ground that it did not state facts sufficient to constitute a cause of action. The circuit judge sustained the demurrer, and from the order sustaining such demurrer the state appealed to this court. The ground upon which the demurrer was sustained by the circuit court is that no civil action will lie to recover the penalty prescribed by said section 3, c. 248, Laws 1879, and this is the only ground insisted upon by the learned counsel for the respondents in their argument in this court.

We think it is very clear that the penalty prescribed by said section 3, c. 248, Laws 1879, is not a fine within the meaning of the last clause of section 3294, Rev. St. It is also very clear that the section does not in express terms declare the offense to be a misdemeanor. This section, as well as the old section, which received a construction by this court in State v. Hayden, 32 Wis. 663, expressly declares what shall constitute an offense a misdemeanor so as to prevent the bringing of a civil action for the recovery of a forfeiture or penalty. That the word “forfeiture” used in the commencement of the section is to be held to mean “penalty” in certain cases is clear. The last clause of the section defines the word “forfeiture” as used in the section as including “any penalties in money or goods other than a fine.” The section authorizes a civil action to recover the forfeiture or penalty incurred by any person as a punishment for any act or omission which is not a misdemeanor, and then goes on to define what shall be held a misdemeanor so as to deprive the state of the right to bring a civil action to recover such forfeiture or penalty; and it clearly provides that, to take away such right, such act or omission must be punishable by a...