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Gonzales v. Dept. of Revenue

OPINION FILED MAY 28, 1976.

JOHN L. GONZALES, PLAINTIFF-APPELLEE, CROSS-APPELLANT,

v.

THE DEPARTMENT OF REVENUE, DEFENDANT-APPELLANT, CROSS-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR L. DUNNE, Judge, presiding.

MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

In this appeal, brought pursuant to the provisions of the Administrative Review Act (Ill. Rev. Stat. 1973, ch. 110, par. 264 et seq.), plaintiff challenges the enforcement of section 9c of the Illinois Cigarette Tax Act (the Act) (Ill. Rev. Stat. 1973, ch. 120, par. 453.9c), which prohibits inter alia the transportation into Illinois of more than 2,000 cigarettes which are not tax-stamped in any single lot or shipment.

The record reflects that plaintiff was arrested and charged with having transported 150 packages of cigarettes (3,000 in number) into Illinois, in violation of section 9c of the Act. The Department of Revenue conducted a hearing, at which its investigator testified that he saw plaintiff purchase cartons of cigarettes in Indiana and place them in the trunk of an automobile. He stopped the car in the State of Illinois and, upon examination, found 150 packages of cigarettes which bore no tax stamps. He then seized the cigarettes and the automobile and placed plaintiff under arrest.

Plaintiff and his wife testified that they were preparing to leave on vacation and they drove into Indiana, where he purchased five cartons of one brand of cigarettes for himself, five of another brand for his wife, and the remaining five of a third brand for his sister, who was going on the vacation with them and had given him $20 for the purchase. When he returned to the car, he told his wife he had purchased her cigarettes. Plaintiff and his sister both testified that as the cigarettes would cost only $15.75, he had given her $4.25 in change prior to the purchase. After this testimony, the Department investigator was recalled and stated that there was no conversation with plaintiff as to the ownership of the cigarettes at the time of the arrest.

The hearing officer concluded that the defense of divided ownership of the 15 cartons had been a recent fabrication and ruled that plaintiff was transporting an illegal number of cigarettes into the State of Illinois in violation of the Act. He assessed a penalty of $500 and ordered the forfeiture of the cigarettes and plaintiff's automobile.

Plaintiff then filed a complaint for administrative review. In this action, the trial court affirmed the decision of the Department "as not being against the manifest weight of the evidence" and further found that the definition of transporter, in section 9c of the Act, was reasonable and not in violation of due process. However, the trial court reversed the fine as being unreasonable and ordered the automobile and cigarettes to be returned to plaintiff.

Defendant appeals from those portions of the trial court's order which reversed the fine and ordered the return of the automobile and cigarettes. Plaintiff cross-appeals from that portion of the order which affirmed the decision of the Department and found the definition of transporter to be reasonable and constitutionally proper.

Although plaintiff contests the constitutionality of the Cigarette Tax Act on appeal, we need discuss only the dispositive question of whether plaintiff was a transporter within the meaning of the Act.

OPINION

Section 9c of the Act defines a "transporter" as follows:

"`Transporter' means any person transporting into or within this State original packages of cigarettes which are not tax stamped as required by this Act, except:

(a) A person transporting into this State unstamped original packages containing a total of not more than 2000 cigarettes in any single lot or shipment."

In its brief, defendant contends that when a person transports an illegal number (over 2,000) of cigarettes which are not tax-stamped into this State, he is in violation of the Act, whether he is a consumer or retailer. It argues that the trial court properly affirmed the decision of the Department, because "the evidence adduced at the administrative hearing in the instant case clearly demonstrated that plaintiff had purchased and was transporting fifteen cartons of unstamped cigarettes in his automobile and, therefore, was in violation of § 453.9c of the Cigarette Tax Act." It asserts that because the penalties were provided for in the Act and were constitutionally permissible, the trial court improperly found that the $500 assessment, as well as the forfeitures of the car and the cigarettes, were arbitrary, capricious and unreasonable.

In his brief, plaintiff contends that the Act applies only to retailers and, because the evidence discloses that he was a consumer, the Act did not apply to him. Thus, he reasons, he could ...


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