People v. Asta

• Decision Date: 05 October 1953
• Docket Number: No. 73,73
• Citation: 60 N.W.2d 472,337 Mich. 590
• Parties: PEOPLE v. ASTA et al.
• Court: Michigan Supreme Court

Page 472

60 N.W.2d 472

337 Mich. 590

PEOPLE v. ASTA et al.

No. 73.

Supreme Court of Michigan.

Oct. 5, 1953.

Frank G. Millard, Atty. Gen., Edmund E. Shepherd, Sol. Gen., Daniel J. O'Hara, T. Carl Holbrook, William B. Elmer, Assts. Atty. Gen., Joseph E. Killian, Pros. Atty., St. Joseph, for the People.

Charles W. Gore, Thomas N. Robinson, Sr., Benton Harbor, for appellees.

Before the Entire Bench.

CARR, Justice.

Defendants in this case were arrested under a warrant charging them with criminal conspiracy to violate the provisions of P.A.1947, No. 265, as amended by P.A.1949, No. 312, and by P.A.1951, No. 78 ¹, commonly referred to as the cigarette tax act. An examination was duly held pursuant to the statute and defendants were bound over to the circuit court of Berrien County for trial. An information was filed which, on motion, was dismissed by the circuit judge hearing the matter. On leave granted the people have appealed from the order entered.

The statute cited was enacted for the purpose of imposing an excise and specific tax on the sale and distribution of cigarettes within this State. In order to facilitate the carrying out of such purpose, provisions were included for the regulation and licensing of persons engaged in the business of handling, selling and distributing cigarettes. The purpose of the legislature in the enactment of the statute clearly appears from the tile which, as amended by the act of 1951, above cited, reads as follows:

'An act to impose an excise and specific tax upon the sale and distribution of cigarettes in this state; to regulate and license manufacturers, wholesalers, vending machine operators, unclassified acquirers, transportation companies and retailers thereof, as herein defined; to prescribe the powers and duties of the Michigan department of revenue with respect thereto; to provide for the collection of such tax and the disposition thereof; to provide for the enforcement of this act; to make an appropriation and to prescribe penalties for the violation of this act'.

Section 1 defines the terms, used in the title, designating the various parties subject to regulation and licensing. Inasmuch as it is the claim of counsel for the appellant that the alleged conspiracy contemplated that defendants would, in the furtherance of their plans, have possession of cigarettes in this State as transporters and as unclassified acquirers, and would sell and make distribution thereof as such, the exact meaning of said terms becomes material. Section 1(6), as amended in 1951, defines 'unclassified acquirer' as follows:

"Unclassified acquirer' shall mean and include any person, other than a transportation company, who imports or acquires cigarettes for sale or distribution from a source located outside the state of Michigan other than a manufacturer, a wholesaler, a secondary wholesaler or a vending machine operator licensed under this act.' The definition of 'transporter' was added to the statute by the amendatory act as section 1(13) and reads as follows: "Transporter' shall mean any person importing or transporting into this state, or transporting in this state, cigarettes obtained from a source located outside the state of Michigan, or from any person not duly licensed under this act: Provided, That it shall not include an interstate commerce carrier licensed by the interstate commerce commission to carry commodities in interstate commerce, or a licensee maintaining a warehouse or place of business outside of Michigan when such warehouse or place of business is licensed under this act, or any person transporting no more than 4000 cigarettes at one time.'

Such definition should doubtless be read in connection with the provision of section 1(7) which provides that a transportation company 'shall mean and include any person operating, or supplying to a common carrier, cars, boats or other vehicles for the transportation or accommodation of passengers and engaged in the sale of cigarettes at retail.' It is a legitimate inference that the legislature has used the term 'transporter' as applying to one engaged in activities other than as a transportation company.

Other sections of the act relate to the granting of licenses and permits, to the renewal thereof, and to suspension or revocation for cause. The keeping of records by those engaged in the business is also prescribed. Section 6 imposes the following requirements applicable to transporters:

'Every transporter who shall transport or possess or acquire for the purpose of transporting any cigarettes upon the public highways, roads or streets of this state shall be required to have in his actual possession invoices or bills of lading containing the name and address of both the seller and the purchaser, the date of delivery, the name and address of the transporter, the quantity of cigarettes, the trade name or brand thereof, the price paid for each brand of cigarettes in such transporter's possession or custody and the license as prescribed under this act.

'Any transporter desiring to possess or acquire for transportation or transport any cigarettes upon the highways, roads or streets of this state shall obtain a permit from the department authorizing such transporter to possess or acquire for transportation or transport any cigarettes, and shall have such permit in his possession while such cigarettes are in his possession. This permit shall be obtained for each load being transported and shall contain therein a statement setting forth the name and address of the purchaser, seller and the transporter, the license number of the purchaser, the date of the delivery of the cigarettes or date of importation into this state, the route to be followed in the event the cigarettes are being transported from an out of state source and such other information as the department may require. The department shall make available such permits on a form prescribed by it on the application of any transporter with remittance of a fee of $1.00.

'Whenever any transporter transports any cigarettes into this state, such transporter shall stop at the nearest state police post within this state on the route authorized by the permit and disclose the cigarettes in his possession and the papers required to be in his possession by the provisions of this section.'

The making of returns to the State department of revenue and the payment of the specific tax imposed by the act, including such returns and payments by unclassified acquirers, are provided for in section 7, which reads as follows:

'Every licensee under section 3, other than an unclassified acquirer, shall, on or before the 20th day of each calendar month, file with the department, on a form prescribed by it, a return under the penalties of perjury for each place of business maintained, stating the number of cigarettes purchased and sold by such licensee in the state during the preceding calendar month and such return shall contain or be accompanied by such further information as the department shall require: Provided, That if a licensee ceases to sell cigarettes within the state he shall forthwith file with the department such a return for the period ending with such cessation. Such licensee shall, at the time of filing such return, pay to the department an excise equal to 1 1/2 mills for each cigarette so sold during the calendar month covered by the return less 1 per cent compensation from the total amount of tax to cover the cost of expenses of the wholesaler incurred in the administration of this act: Provided, That nothing in this act shall be deemed to prohibit any licensee from paying the excise tax imposed by this act upon the importation or acquisition of cigarettes and the department shall prescribe the form for such computation and payment of tax: Provided, That cigarettes with respect to which the excise under this act has once been imposed and has not been refunded if paid, shall not be subject upon a subsequent sale to the excise imposed by this act. Irrespective of any provisions of this act to the contrary, the department may, whenever it deems it advisable to protect the interests of the state, require any such licensee required to file monthly returns under this act to file supplemental returns whenever so directed by the department, accompanied by a remittance of the tax due, covering the tax due on the business done for such portion of the month as the department may direct. Each unclassified acquire shall, upon importation or acquisition of cigarettes from any source whatsoever, file with the department a return under penalties of perjury, on a form to be furnished by the department, stating the number of cigarettes imported or acquired and such other information as the department shall require, and shall, at the time of filing such return, pay to the department an excise equal to 1 1/2 mills for each cigarette so imported or acquired and held for sale or consumption, and cigarettes with respect to which such excise has been imposed and has not been refunded if paid, shall not be subject, when subsequently sold, to any further excise under this act. An abatement or refund of the excise provided by this act may be made by the department for such causes as the department may deem expedient. The department shall certify said amount to the auditor general and the state treasurer shall pay said amount without any appropriation therefor out of the proceeds of such excise.'

Penalties for violations of the act are set forth in section 9 thereof as amended in 1951. In accordance therewith the possession, acquiring, transportation, or offering for sale of cigarettes having a wholesale price in excess of $50, contrary to the provisions of the statute, is a felony. Such an act with reference to cigarettes having a value of $50 or less is declared a misdemeanor. Provision is also made for seizure and confiscation by the State department of revenue in case of a violation of ...