State v. Raccagno, 58843
| Citation | 530 S.W.2d 699 |
| Decision Date | 24 December 1975 |
| Docket Number | No. 1,No. 58843,58843,1 |
| Parties | STATE of Missouri, Respondent, v. John RACCAGNO, Appellant |
| Court | United States State Supreme Court of Missouri |
David Skeer, Kansas City, for appellant.
Willard B. Bunch, County Counselor, Stanley P. Christopher, Deputy County Counselor, John E. Cash, Ralph L. Martin, Pros. Atty., Robert Frager, Asst. Pros. Atty., Kansas City, for respondent.
Appellant John Raccagno was charged with the commission of a misdemeanor in that he did 'unlawfully and intentionally fail to comply with the duly promulgated regulations of the Director of Revenue dealing with the collection of County Cigarette Taxes, to-wit: being then and there the person who first sells the cigarettes within the State of Missouri and in such capacity failing to affix the proper county tax stamp to a certain package of BelAir Brand cigarettes sold within the County of Jackson and State of Missouri thereof . . ..' The prosecution was premised on the provisions of section 210.320, RSMo 1969 (S.B. 241 of the 75th General Assembly, 1969). Section 210.320(2) inter alia, authorizes counties of the first class with all or the greater part of a city of $350,000 or greater to impose a tax on cigarettes of two and one-half mills per cigarette sold in that county for the purpose of helping to defray the expenses of certain places of detention for delinquent or dependent children and other children's services within the county.
Jackson County, by its then governing body, the county court, did in 1969 adopt an order imposing the tax authorized by 210.320(2). The statute requires the tax to be paid and the stamp affixed in the same manner as is provided by chapter 149. Chapter 149, the state cigarette tax law, was repealed and reenacted with some changes by Laws of Mo.1974, p. 775, 77th General Assembly, but the manner of paying the tax and affixing the stamps remained the same.
It is stipulated that appellant, a tobacco wholesaler, first sold a package of cigarettes in Jackson County upon which there was no county tax stamp. The prosecution was instituted in magistrate court and transferred to the circuit court of Jackson County because appellant raised the defense that the enabling act, section 210.320, was unconstitutional. Appellant was found guilty of a misdemeanor by the circuit court where the case was tried without a jury; imposition of sentence was suspended, and appellant was placed on probation for a period of thirty days.
The appellant asserted numerous objections to the validity of the statute on constitutional grounds in the lower courts and has maintained his constitutional objections throughout the proceedings. Additionally, section 210.320, insofar as it authorizes a tax, is a revenue law of this state. This court has jurisdiction of the appeal, Art. V, sec. 3, Mo.Const., as amended 1970.
This is not a declaratory judgment case but rather an appeal from a criminal conviction and the relief sought is a reversal of that conviction.
The penalty provision of section 210.320 is found in subsection 6 thereof. It provides: 'The director of revenue of this state shall promulgate reasonable and necessary regulations for the collection of this tax and any violation of such regulation is a misdemeanor and any person convicted of such a misdemeanor shall be punished by law.' (Emphasis supplied.)
Under section 556.270 the appellant was subject to being punished by imprisonment in a county jail not exceeding one year, or by a fine not exceeding one thousand dollars, or by both such fine and imprisonment.
The information upon which appellant was prosecuted shows on its face that appellant was charged with a violation of a regulation promulgated by the director of revenue. The penalty section of 210.320(6) makes the violation of a regulation a misdemeanor. That provision, section 210.320(6), does not make the violation of the statute itself a misdemeanor, nor does it provide that the violation of the statute itself is to be the subject of any criminal prosecution.
The appellant contends, inter alia, that the director of revenue did not promulgate regulations under the authority of section 210.320 and that, assuming regulations were promulgated, section 210.320(6) constituted an unconstitutional delegation of power by the general assembly in that it allowed the director of revenue to decide what acts will constitute a criminal offense.
In November 1969 the director of revenue of Missouri prescribed 'Rules and Regulations covering Tax on Sale of Cigarettes'. The first paragraph of this document states,
Chapter 149, referred to in the director's regulations supra as the authority for the regulations, was the state statute imposing a statewide cigarette tax and not a county cigarette tax. Specifically, chapter 149 does not deal with the cigarette tax authorized by section 210.320(2) to be imposed only by first-class counties with all or the greater part of a city of 350,000 or more. The body of the document does make reference to a situation where a combination of state, city or county cigarette taxes are involved and also provides, These regulations were filed in the secretary of state's office.
Nowhere do these regulations make reference to nor do they purport on their face to have been adopted pursuant to section 210.320(6), the statutory authority for the adoption of rules and regulations, reference the specific tax authorized by section 210.320(2). Yet these regulations, under the state's theory, take on the aspect of a criminal statute for it was the violation of a regulation that was the basis of this criminal prosecution and conviction. The most that can be said with reference to whether or not the regulations noted supra were adopted pursuant to section 210.320 is that it is doubtful. As such, it becomes subject to the familiar principle that a criminal statute must be strictly construed against the state and in favor of the defendant, State v. Harper, 510 S.W.2d 749, 751 (Mo.App.1974), and cases therein cited. Upon that basis, this conviction cannot stand. However, to reverse solely on that basis would undoubtedly result in the adoption of regulations by the director of revenue of Missouri pursuant to section 210.320(6) and the filing of same with the secretary of state followed by other criminal prosecutions for the violation of such regulations.
Therefore, the court will now decide whether the delegation by the legislature as set forth in section 210.320(6) was unconstitutional.
First it is noted that the legislature did not make the violation of any of the provisions of section 210.320 a criminal offense. Section 210.320(6) left it to the director of revenue to promulgate reasonable and necessary regulations and make the violation of a regulation the criminal offense. As such, the statute delegated the power to the director of revenue to say whether or not the failure to pay the tax authorized by section 210.320 would be criminally punishable. If the director does not promulgate a regulation requiring the tax to be paid by the person first selling the cigarettes in Jackson County, then...
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