State v. Sbragia

119 N.W. 290, 138 Wis. 579, 1909 Wisc. LEXIS 43

• Court: Wisconsin Supreme Court
• Decided: March 30, 1909
• Status: Published

Opinions

The following opinion was filed January 26, 1909:

Marshall, J.

The question presented for solution is this: Is a sale or gift of an order or paper, characterized as a coupon in this action, by a person in this state to another therein as part of an entire transaction including the sale of a package of tobacco, entitling the recipient, in case of his obtaining two other like papers and sending all by mail to a designated dealer in tobacco products and cigarette paper outside the state, to receive therefrom a specified quantity of cigarette paper, — a violation by such person of see. 1, ch. 82, Laws of 1905, prohibiting “any person” “by himself, his servant or agent, or as the servant or agent of any other person, directly or indirectly, or upon any pretense, or by any device,” from selling, offering for sale, keeping for sale, giving away, or otherwise disposing of “any such cigarettes, cigarette paper,” etc. ?

That a transaction of the nature stated falls within the spirit of the statute seems beyond reasonable controversy, and that it falls within its letter seems hardly less plain.

It appears that the scheme is but a bald subterfuge to cloak the real purpose to sell or give away cigarette paper to persons in this state in circumvention of the law, the local dealer being the principal in the sense that a sale of a package includes the sale of a coupon, and an agent in the sense that he acts for the foreign dealer in the latter’s efforts to supply customers in this state with cigarette paper.

Counsel for the defendant do not seem to seriously contend to the contrary of the foregoing, and the learned attorney general appears to unite with them in presenting the matter from a common viewpoint, exempting the defendant from liability upon the ground hereafter stated.

We have the anomalous situation of counsel for defendant contending, in the main, that the stipulated facts do not show a punishable violation of the cigarette law because such law is ineffective as regards an act requiring interstate commerce to effectuate it by putting the consumer in possession of the prohibited article, and the learned attorney general subscribing to the same view and joining with defendant’s counsel in urging the position upon the attention of this court as unavoidably requiring an answer to the submitted question in defendant’s favor. Doubtless, the state’s officer was unable to see any escape from such position and so, in justice to the defendant and Üie court as well, frankly made known his opinion in that regard instead of contending to the contrary. That is commendable but does not preclude the court from considering, or, perhaps more correctly stated, excuse it for failing to consider, the question as involving the element of serious doubt discovered by the learned trial court, warranting the certification to this court.

The statute seems in effect to prohibit, as plainly about as-English words could be used to that end, any one in this state as principal or agent, directly or indirectly, from being concerned in selling or giving away to any person in this state cigarettes or cigarette paper. Significant to that effect are the words “directly or indirectly, or upon any pretense, or by any device.” The sale of the package of tobacco with the coupons inclosed, exchangeable for cigarette paper, would not have been any different if the package had contained such paper instead of the equivalent. Can any one fairly say that was not a mere pretense or device resorted to for disposing of such paper while giving the transaction a different color? In the opinion of the court the answer must be as here indicated.

The stipulated facts, as we view them, do not raise any question of interstate commerce and, therefore, the able arguments of counsel on both sides that they do, and that the proper solution thereof is fatal to the prosecution, we omit to consider.

By the Court. — The question submitted is answered in the affirmative, and the cause remanded for judgment upon the conviction.