Ex parte Winn
| Decision Date | 31 December 1936 |
| Docket Number | A-9206. |
| Citation | 64 P.2d 927,61 Okla.Crim. 1 |
| Parties | Ex parte WINN. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Rehearing Denied Feb. 12, 1937.
Syllabus by the Court.
1. Right to levy and collect sales tax on articles is limited to sales made within state.
2. Cigarettes purchased from seller outside state held not in "interstate commerce" after delivery to purchaser within state, and hence are then subject to taxation by state.
3. Tax on sale of article after coming to rest within state is not unlawful interference with interstate commerce.
Original habeas corpus proceeding by R. C. Winn.
Writ denied.
Frank Leslie, of Tulsa, for petitioner.
Mac Q Williamson, Atty. Gen., and Holly L. Anderson, Co. Atty., and M. S. Simms, Asst. Co. Atty., both of Tulsa, for respondent.
This is an original proceeding in habeas corpus. Petitioner alleges he is unlawfully restrained by the sheriff of Tulsa county. That he was jointly charged with others in the court of common pleas of that county of three offenses, one charging him with selling cigarettes without a license, another advertising cigarettes without stamps affixed, and another with displaying cigarettes for sale without stamps affixed and was convicted on all of said charges; that he was fined $100 and costs on one charge, on another he was fined $25 and costs, and on the other the sum of $1 and costs, and in default of payment was committed to the county jail. That said restraint is unlawful, in that the court did not have jurisdiction; that the transaction charged and proven was interstate commerce and beyond the jurisdiction of the court.
The testimony is that C.J. Brooks, a codefendant, had a place of business at Tulsa, which he operated under the name of J. F Anderson. Brooks, with petitioner and other codefendants would go about soliciting orders for cigarettes. These orders would generally be written down by the solicitor and would then be taken to Brooks' place of business; gum stickers were there prepared on which was the name and address of the person placing the order or occasionally the address without any name. Also orders were received at this place of business by telephone. Some persons had standing orders by which they received cartons of cigarettes weekly or every few days as they required. The orders were then sent from the place of business to the Pittsburg Tobacco Company, at Pittsburg Kan., with the gum stickers, and the Pittsburg Tobacco Company would then mail the cigarettes, in cases, C. O. D. to Brooks, with the notation on the invoice, "Sold to J. F. Anderson." Brooks or some one for him would then receive the cigarettes at the post office, pay for them, together with the C. O. D. charges, and would then take them to his place of business and would there break the cases, and his employees would then take the cartons of cigarettes to those who had made orders, deliver them, and receive payment; or his customers would come in person, receive the cigarettes, and pay for them. When Brooks delivered these cigarettes to one of his employees, the employee was charged with them. Brooks testified he disposed, in this way, of an average of 40 to 50 cartons of cigarettes a day; that each solicitor received 10 cents per carton for his compensation in procuring the order and delivering the cigarettes; and that he as manager or agency head received 3 cents per carton above the purchase price, except when he personally took the order by phone or otherwise, when he received in addition 10 cents per carton. At the time of the arrest there was on display at Brooks' place of business 213 cartons and 6 packages of cigarettes, all without any stamp evidencing the payment of sales tax as provided by article 8, chapter 66, Session Laws 1935, the cigarette Stamp Tax Act. Said act, among other things, provides for an excise tax upon all cigarettes within the state to be paid and collected by the person making the first sale thereof within the state and the payment of said tax to be evidenced by stamps purchased from the State Tax Commission, such stamps to be securely affixed to the package, and such...
To continue reading
Request your trial