Los Angeles herald., 1890-10-21
ished him. 1t is true that in the present

case, Yonng, the person heretofore in
dicted, convicted and punished under
section 345l of the revised statutes. is
not claimant and that the claimants.
VOTERS, Helm, Austin and Kaufman.
a.lege in their original answer that they
acquired by purchase at a public sale,
made by the assignee of the Fruitvale
Wine and Fruit company, on the 9th
day OF June, 1889, all of the property in
question then in existence. and have
since owned the same, together with that
subsequently added. But it must be re-
membered that the pleadings show that
the alleged fraudulent acts of the COM
mission and omission upon which the
governments right to decree of for
feiture is based, occurred in the year
1887, and that it is the established doc
trine of the supreme court that the for
feiture took effect Immediately upon the
commission of the acts denounced by
the statute. Omitted States v. Stowell,
1873 U. S. p. 1.) "The right to the
property then vest in the United
States," said the court, although their
title is not perfected until judicial
condemnation; the forfeiture consti-
tutes statutory transfer of the right to
the United States at the time the offence
is committed; and the condemnation,
when obtained relates back to that time,
and avoids all intermediate sales and
alterations, even to purchasers in good
faith" The purchase made by Wolters,
Helm, Austin & Kaufman at the sale
made in June, 1888, by the assignee of
the Fruitvale Wine and Fruit company,
was therefore void as against the gov
ernment, even If they could be regarded
as purchasers in good faith. But that
they cannot be so regarded is plain
for the reason, among others, that each
Of them was an owner of stock in that
corporation and therefore interested In
the property at the time of the perpe-
tration of the frauds. The sale being
void as respects the government for one
purpose is void as to all, and the rights
of the government are to be determined
as though it had never occurred.
The right which the government, by
this suit, asks the court to enforce is
the right which vested in it in 1887 to
take the property as forfeited by the
fraudulent acts on the part of the Fruit
vale Wine and Fruit company Gu. S. v.
Stowell. supra). When that right ac-
crued Young, as an owner of stock in
that corporation, had an; interest in
every part and parcel of the property Of
the company. The government had
the right to proceed by civil action to
enforce the forfeiture of the property
because of the frauds, or to prosecute
the parties engaged in it criminally;
but for the same acts it could not do
both, according to the ruling in the
cases to which reference has been made.
1t does not seem to me to be material
that Young does not here appear as a
claimant. Ii the facts be as alleged-and
upon the demurrer they are to be taken
as true-the government indicted, con-
victed and punished him for certain
frauds committed in relation to the prop
erty in question, and for the same fraud
ulent acts and omissions that were in
troduced in proof in support of that in
dictment it asks the court in the present
suit to decree a forfeiture of the prop
erty, the right to which accrued to the
government, as has been seen, at the
time of the commission of the frauds,
and when Young, as stockhOlderin the
corporation, was interested in every part
and parcel of the property. To take the
property in which he has an interest is
to take his property; and, for the same
acts and omissions, to punish him GRIM
lnally and also take his property, Is. Tor
the same offences, to punish him twice.
The circumstance that Wolters, Helm,
Austin and Kaufman have not been
prosecuted for the fraudulent acts and
omissions that are made the basis of
the present action does not relieve the
governments case of the difficulty. To
take the property from one stockholder
is to take it from all. and can see no
valid reason why the plea in bar of the
action may not be interposed by any one
interested in the property. Indeed, ac-
cording to the admiralty practice, by
which this proceeding is governed, the
court protects and holds the property
for the true owner, whoever he may be.
(ConkIing's Admiralty Practice, Vol. 2,
p. 54.) Demurrer overruled.
Ross, District Judge.