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Castellon v. Hudson County Treasurer

Decided: November 22, 1976.

VENUS CASTELLON, PLAINTIFF-RESPONDENT,
v.
HUDSON COUNTY TREASURER, DEFENDANT-APPELLANT



Carton, Kole and Larner. The opinion of the court was delivered by Larner, J.A.D.

Larner

Plaintiff was convicted after a guilty plea of possession of lottery slips in violation of N.J.S.A. 2A:170-18. He then brought an independent action to recover from the Treasurer of Hudson County the sum of $183.58 which had been confiscated from his person at the time of arrest. Defendant denied plaintiff's claim and further filed a counterclaim to recover a penalty of $2,000 from plaintiff pursuant to the provisions of N.J.S.A. 2A:40-8.

The trial judge dismissed the counterclaim and entered judgment for plaintiff in the amount of $155.18 on a finding that said sum was not used in connection with the gambling offense. Defendant appeals from this determination.

The judge's factual finding that the major portion of the seized moneys represented the balance of the salary received by plaintiff from his employer on the day of arrest and did not constitute illegal contraband under N.J.S.A. 2A:152-7 is reasonably supported by sufficient credible evidence in the record. In view of the limited scope of our review of such a factual finding, we are constrained to affirm the same. State v. Johnson , 42 N.J. 146 (1964).

The appeal from the dismissal of the counterclaim presents an issue of statutory construction which has not been explored in any prior reported opinion. The pertinent statute, N.J.S.A. 2A:40-8, creates a civil penalty of $2,000 to be forfeited to the county by any person who "shall,

within this state, publicly or privately, erect, set up, open, make or draw any lottery prohibited by the laws of this state."

Defendant asserts in his brief that this statute should be accorded an all-embracing construction so that "anyone, who is or has been convicted of a lottery offense under the laws of this State comes within the scope" of the legislation. He argues that the state policy against all types of gambling dictates such an approach; and that the civil penalty statute as an important deterrent outside of the criminal law should be enforced to carry out that policy.

Based upon this premise it is urged that the facts in the record herein establish that plaintiff is an offender within the ambit of the civil penalty statute, whether he be considered a mere possessor of a lottery slip connected with his own bets or a runner placing bets for his coemployees.

On either assumption, our study of the statute and its historical forebears lead us to a contrary conclusion.

The statute must be construed in accordance with its plain terms. See, e.g., Fahey v. Jersey City , 52 N.J. 103, 107 (1968); Lane v. Holderman , 23 N.J. 304, 313 (1957); Lopez v. Santiago , 125 N.J. Super. 268, 270 (App. Div. 1973). And, indeed, a penal statute such as the one under consideration should be strictly construed lest it be applied to persons or conduct beyond the Legislature's contemplation. See Neeld v. Giroux , 24 N.J. 224, 228 (1957); State v. Leonardo , 109 N.J. Super. 442, 448 (App. Div. 1970).

The Legislature did not provide for a civil penalty for all gambling offenses as it may have done, if it so intended, by general language to that effect or by reference to N.J.S.A. 2A:121-1 et seq. , 2A:112-1 et seq. and 2A:170-18. It rather used language which plainly limits the civil penalty remedy against offenders engaged in the actual creation, operation or management of the lottery enterprise. It is ...


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