State v. Roggensack

• Decision Date: 06 February 1962
• Citation: 113 N.W.2d 389,15 Wis.2d 625
• Parties: STATE of Wisconsin, Plaintiff, v. Rolland R. ROGGENSACK, Defendant.
• Court: Wisconsin Supreme Court

Page 389

113 N.W.2d 389

15 Wis.2d 625

STATE of Wisconsin, Plaintiff, v. Rolland R. ROGGENSACK, Defendant.

Supreme Court of Wisconsin.

Feb. 6, 1962.

Rehearing Denied April 3, 1962.

See 114 N.W.2d 459.

Questions answered.

The defendant Rolland R. Roggensack was found guilty by the court, a jury having been waived, upon 2 counts in an information of failing or refusing to make and file 1958 and 1959 Wisconsin income tax returns in violation of sec. 71.11(42), Stats. Pursuant to sec. 958.08, Stats., the trial court, with the consent of the defendant, has certified 5 questions of law which arose upon the trial. These questions are as follows:

1. Do the provisions of sec. 71.11(41), Stats., create a criminal offense?

2. Is there a conflict between the provisions of sec. 71.11(41) and the provisions of sec. 71.11(42), Stats.?

3. If there is a conflict, which subsection is applicable to a natural person whose conduct responds to the provisions of both subsections?

4. Does the coexistence of the provisions of secs. 71.11(41) and (42), Stats., violate constitutional requirements of due process of law?

5. Does the coexistence of the provisions of secs. 71.11(41) and (42), Stats., violate constitutional requirements of equal protection of the laws?

John W. Reynolds, Atty. Gen., Harold H. Persons and William A. Platz, Asst. Attys. Gen., William D. Byrne, Dist. Atty., Donald R. McCallum, Deputy Dist. Atty., Madison, for plaintiff.

John T. Harrington, Madison, E. J. Morse, Jr., Lancaster, for defendant.

HALLOWS, Justice.

The key to these questions, basically, is the determination of the nature of sec. 71.11(41) ¹ and of sec. 71.11(42), Stats., ² hereinafter referred to as '(41)' and '(42).' The defendant argues these 2 sections both create criminal offenses with different punishments and are, therefore, in conflict; being in conflict, neither section applies to him because their coexistence violates the constitutional requirements of due process by providing different degrees of punishment for the same act under the same circumstances and deny equal protection of the laws by vesting in administrative officers the discretion to determine what acts respond to each section.

The attorney general contends (41) provides for a civil forfeiture and (42) a criminal penalty; that no conflict exists between these sections, that both sections may apply to the same conduct; and the coexistence of both a civil sanction and a criminal sanction for a breach of the income tax law does not violate due process of law or deny equal protection of the laws.

The provisions of (41) and (42) are almost identical. Both apply to natural persons who fail or refuse to make an income tax return on time or who render a false or fraudulent return. However, (42) does not include corporations and before a fine or imprisonment can be imposed, there must be a conviction. The word 'penalty' is used in (41) while the words 'fine and imprisonment' are used in (42). On the face of the language therefore, there would seem to be a distinction between the 2 sections.

The history of these sections leads to the conclusion that the legislature meant a civil sanction in (41) and a criminal sanction in (42). In the enactment of the income tax law by c. 658, Laws of 1911, there was created sec. 1087m-11. 4. which provided the same penalty for the same acts and omission as (41) by corporations, joint stock companies and associations. That section did not apply to individuals. The original income tax law also created sec. 1087m-11. 5. which created the same punishment for the same acts and omissions by an officer of a corporation, joint stock company or association as is now provided in sec. 71.11(43), Stats. for an officer of any corporation. This section provides any officer of a corporation, required by law to make, render, sign or verify any return who makes any false or fraudulent return or statement with intent to defeat or avoid the assessment required by this act to be made, shall upon conviction be fined not to exceed $500 or be imprisoned not to exceed one year, or both, in the discretion of the court, including the cost of prosecution. This section is clearly a criminal statute applying to officers of corporations, but it does not apply to the act of failing or refusing to make a return. For such action or omission, the corporation is liable to the sanction provided in (41) but is not liable for any criminal sanction. The original income tax law also created sec. 1087m-12 which created provisions identical with the sections now found in (42) except that originally joint stock companies and associations as well as corporations were excepted therefrom. In the revision of 1927, what is now (41) was recreated and included any person. Substantially remaining the same were (42) and sec. 71.11(43) excepting that stock corporations and associations were excluded. Historically then, while these sections, basically, have been in the law since 1911, it has been only since 1927 that the sanctions provided by (41) and (42) both applied to individuals.

In this history, we find no evidence the legislature intended (41) was to be a criminal sanction. The fact that both sections applied to natural persons and to the same acts and omissions does not necessarily make both sections criminal in character. No imprisonment is provided for in (41) which speaks only in terms of a penalty, nor is a conviction required for the imposition of the penalty. A crime is defined in sec. 939.12, Stats., as conduct which is prohibited by state law and punishable by fine or imprisonment, or both. Conduct punishable only by a forfeiture is not a crime. By sec. 288.01, Stats., ³ a forfeiture as used in that chapter includes a penalty. In is not unusual in the law, especially in revenue laws, for legislatures and Congress to provide both a civil and a criminal sanction for the same act. This is not disputed by the defendant, but he claims that is not the law in Wisconsin, at least so far as (41) and (42) are concerned. The defendant makes an ingenious argument, based on sec. 288.01, that (41) and (42) both provide for a criminal sanction and especially that (41) does not provide for a civil penalty. Forfeitures, including penalties imposed by statute, have long been recoverable in civil actions in this state by express authority of sec. 288.01 which, in substance, has been in existence since 1849. Originally, a pecuniary penalty or forfeiture could be enforced by an action of debt or assumpsit unless the act or omission for which the penalty or forfeiture imposed was not also a misdemeanor. C. 122, § 1 (1849) R.S. This section was amended several times, and in 1935 the section was amended to its present form. Considerable stress is given by the defendant to the words '* * * unless the act or omission is punishable by fine and imprisonment or by fine or imprisonment.' The defendant then draws the conclusion that under this section the state cannot maintain a civil action for the collection of the penalty provided by (41) because the same conduct is punishable by imprisonment under (42) and, consequently, the provisions of (41) can not create a civil forfeiture and must create at least a misdemeanor.

We do not believe sec. 288.01, Stats., can be given such construction. A reasonable construction would require that where a statute creates both a forfeiture and also punishes the same act or omission by fine and imprisonment, the forfeiture cannot be collected or enforced in a civil action under sec. 288.01. It must be kept in mind that by c. 483, § 74, Laws of 1935, sec. 288.01 was amended to include the word 'fine' in the definition of the word 'forfeiture.' Consequently, where a statute provides only for a fine, it may be enforced under sec. 288.01. But when the statute created a punishment by fine and/or imprisonment, it is for the court in a criminal proceeding to determine which or both should apply. We do not construe this section to mean that one section of the statute creating a forfeiture cannot be enforced thereunder because the same acts or omissions by another separate and distinct section of the statute are made subject to a fine of a different amount, with or without imprisonment as a criminal sanction.

The defendant relies on State v. Hayden (1873), 32 Wis. 663; City of Oshkosh v. Schwartz (1882), 55 Wis. 483, 13 N.W. 552; State v. Grove (1890), 77 Wis. 448, 46 N.W. 532; Stoltman v. Lake (1905), 124 Wis. 462, 102 N.W. 920; and State v. Hamley (1909), 137 Wis. 458, 119 N.W. 114, in support of his proposition. We do not consider that these cases hold a penalty provided under (41) cannot be recovered in a civil action because the same conduct is punishable by imprisonment under (42). Sec. 288.01, Stats., provides a test to be used in determining whether the proceedings under a particular statutory provision are to be civil in character or not. It does not determine the nature of the other sections which are not the basis for the particular action in question.

It is arguable that even if sec. 288.01, Stats., is to be construed, as contended for by the...