State v. Peterson

• Decision Date: 04 February 1930
• Citation: 229 N.W. 48,201 Wis. 20
• Parties: STATE v. PETERSON.
• Court: Wisconsin Supreme Court

201 Wis. 20

229 N.W. 48

STATE

v.PETERSON.

Supreme Court of Wisconsin.

Feb. 4, 1930.

Appeal from an order of the Circuit Court for Dane County; A. C. Hoppmann, Circuit Judge. Reversed.

Action by the State of Wisconsin, plaintiff, against Thomas Peterson, defendant, commenced on the 12th day of December, 1928, to recover a forfeiture. An order sustaining a demurrer to the complaint was entered on the 29th day of May, 1929. From that order the State appeals.John W. Reynolds, Atty. Gen., H. A. Minahan, Deputy Atty. Gen., and J. E. Messerschmidt, Asst. Atty. Gen., for the State.

Sanborn, Blake & Aberg and Glen H. Bell, all of Madison, for respondent.

OWEN, J.

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 automobile only, and not the proceeds arising from its conversion. The correctness of that holding is the sole question presented for our consideration.

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 advertize any lottery ticket for sale, as well as other enumerated activities incident to the conducting of a lottery. Sections 348.01 to 348.05, inclusive. By section 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.”

[1][2] 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 it 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.” United States v. Stowell, 133 U. S. 1, 16, 17, 10 S. Ct. 244, 247, 33 L. Ed. 555. See, also, United States v. Grundy, 3 Cranch, 337, 2 L. Ed. 459;McConathy v. Deck, 34 Colo. 461, 83 P. 135, 4 L. R. A. (N. S.) 358, 7 Ann. Cas. 896, and note in 7 Ann. Cas. 899. It would seem to follow upon fundamental principles that when the defendant sold the automobile he converted the same to his own use and thereby became indebted to the state in the sum of at least $750, which is the recovery sought in this action.

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 United States v. Stowell, 133 U. S. 1, 10 S. Ct. 244, 33 L. Ed. 555;Goldsmith Jr.-Grant Co. v. U. S., 254 U. S. 505, 41 S. Ct. 189, 65 L. Ed. 376;United States v. Grundy, 3 Cranch, 337, 2 L. Ed. 459;United States v. Loomis (C. C. A.) 297 F. 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 P. 306.

[3] In United States v. Loomis (C. C. A.) 297 F. 359, 361, we find the statement that “forfeiture can only be declared if the thing sought to be forfeited was lawfully taken into possession.” As a general proposition, that statement is entirely too broad, and its correctness must depend upon limitations upon legislative power with which we are not familiar. The statute...