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O'leary v. Allphin

OPINION FILED NOVEMBER 15, 1976.

THOMAS G. O'LEARY, APPELLEE,

v.

ROBERT H. ALLPHIN, DIRECTOR OF THE DEPARTMENT OF REVENUE, ET AL., APPELLANTS.



Appeal from the Circuit Court of Cook County; the Hon. Donald J. O'Brien, Judge, presiding.

MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:

On September 2, 1973, plaintiff, Thomas G. O'Leary, was arrested by agents of the Illinois Department of Revenue and charged with illegal transportation into Illinois of 27 cartons of unstamped cigarettes without a permit in violation of section 9c of the Cigarette Tax Act (Ill. Rev. Stat. 1973, ch. 120, par. 453.9c). He subsequently filed a class action in the circuit court of Cook County against Robert H. Allphin, Director of the Illinois Department of Revenue, and other defendants, in which he alleged that his car was stopped on the highway by two Illinois revenue agents just after he crossed the Indiana border while returning to his home in Illinois from Indiana where he and his family had purchased cigarettes for their own use; the car was searched without a warrant; he was required to accompany the agents to a police station in Calumet City where he was arrested and charged with illegal transportation of unstamped cigarettes without a permit; and his car and the goods contained therein were seized and confiscated. The complaint further alleged that the defendants' actions violated various provisions of the State and Federal constitutions and sought punitive damages as well as injunctive relief prohibiting further enforcement of the Cigarette Tax Act against persons not engaged in the business of selling cigarettes who bring untaxed cigarettes into Illinois. Defendants' answer alleged that their actions were lawful and in accordance with the Cigarette Tax Act, particularly the transporter provisions of section 9c and those of section 18 which provide that revenue agents may make arrests and seizures without a warrant when violations of the Act occur in their presence (ch. 120, par. 453.18). At the conclusion of the trial, the circuit court entered an injunction order permanently restraining defendants from directly or indirectly enforcing sections 9c and 18 against individuals transporting cigarettes into Illinois for their own use and not for sale from any State in the United States. On appeal by defendants, the appellate court affirmed the injunction order (O'Leary v. Allphin (1975), 35 Ill. App.3d 223), and we granted leave to appeal.

At the outset, it is appropriate to note that the charges against plaintiff for illegal transportation of untaxed cigarettes into Illinois without a permit were dismissed, his car was returned to him and he did not appeal from the decision of the circuit court in the class action proceeding nor from any provisions of the injunction order entered therein. Also, neither the trial court nor the appellate court passed upon the constitutionality of any of the statutory provisions involved in this case. Accordingly, there are no issues before this court concerning the legality of plaintiff's arrest, the search and seizure of his car and its contents, the general procedures followed by the revenue agents at the time of his arrest or the constitutionality of the statutory provisions in question. The sole issue to be decided on this appeal is whether the circuit court's permanent injunction order reflects a correct interpretation of the transporter provisions of section 9c of the Cigarette Tax Act and is consistent therewith.

The injunction order limited the enforcement of sections 9c and 18, which provide as follows:

"Sec. 9c. `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;

(b) a licensed cigarette distributor under this Act;

(c) a common carrier;

(d) a person transporting cigarettes under Federal internal bond or custom control that are non-tax paid under Chapter 52 of the Internal Revenue Code of 1954, as amended;

(e) a person engaged in transporting cigarettes to a cigarette dealer who is properly licensed as a distributor under the Illinois Cigarette Tax Act or the Illinois Cigarette Use Tax Act, or under the laws of any other state, and who has in his possession during the course of transporting such cigarettes a bill of lading, waybill, or other similar commercial document which was issued by or for a manufacturer of cigarettes who holds a valid permit as a cigarette manufacturer under Chapter 52, Internal Revenue Code of 1954, as subsequently amended, and which shows that the cigarettes are being transported by or at the direction of such manufacturer to such licensed cigarette dealer.

Any transporter desiring to possess or acquire for transportation or transport upon the highways, roads or streets of this State more than 2000 cigarettes which are not contained in original packages that are Illinois tax stamped shall obtain a permit from the Department authorizing such transporter to possess or acquire for transportation or transport the cigarettes, and he shall have the permit in the transporting vehicle during the period of transportation of the cigarettes. The application for the permit shall be in such form and shall contain such information as may be prescribed by the Department. The Department may issue a permit for a single load or shipment or for a number of loads or shipments to be transported under specified conditions.

Any cigarettes transported on the highway, roads or streets of this State under conditions which violate any requirement of this Section, and the vehicle containing such cigarettes, are subject to seizure by the Department, and to confiscation and forfeiture in the same manner as is provided for in Section 18a of this Act. Any such confiscated and forfeited property shall be sold in the same manner and under the same conditions as provided for in Section 21 of this Act, with the proceeds from any such sale being deposited in the State Treasury.

Any person who violates any requirement of this Section is guilty of a Class A misdemeanor.

Any transporter, who, with intent to defeat or evade or with intent to aid another to defeat or evade the tax imposed by this Act, at any given time, transports 40,000 or more cigarettes upon the highways, roads or streets of this State under conditions which violate any requirement of this Section ...


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