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Neeld v. Giroux

Decided: May 6, 1957.

AARON K. NEELD, DIRECTOR, DIVISION OF TAXATION, STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LEON GIROUX, DEFENDANT-APPELLANT, AND LEON DUBOIS, DEFENDANT



On appeal from the Middlesex County Court, Law Division.

For reversal -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Burling, Jacobs and Weintraub. For affirmance -- None. The opinion of the court was delivered by Weintraub, J.

Weintraub

Defendant Leon Giroux of Colebrook, N.H. purchased 154 cases of cigarettes from R. Baylin Company of Wilmington, Del. The transaction was consummated at Elkton, Md., by delivery of the merchandise in exchange for $15,186 in cash. While operating his truck through New Jersey, Giroux was stopped, and the cigarettes not bearing stamps required by our Cigarette Tax Act and he not having in his possession invoices complying with the act, the Director of the Division of Taxation filed two complaints in the municipal court of Milltown, one for a penalty and the other for the confiscation of the cigarettes as contraband. Judgments were entered in favor of plaintiff on both complaints, the penalty being in the sum of $2,685. The co-defendant Leon Dubois, who was with Giroux, was found not guilty.

Giroux appealed to the County Court where, on a trial de novo on the stenographic record made below, like judgments were entered. Giroux' appeal to the Appellate Division was certified by us on our own motion.

The Cigarette Tax Act, chapter 65 of the Laws of 1948, N.J.S.A. 54:40 A -1 et seq., provides in section 609 as amended, N.J.S.A. 54:40 A -32, that

"Every person who shall transport cigarettes not stamped as required by this act upon the public highways, waterways, roads or streets of this State shall have in his actual possession invoices or delivery tickets for such cigarettes which shall show the true name and address of the consignor or seller, the true name of the consignee or purchaser, the quantity and brands of the cigarettes transported and the name and address of the person who has or shall assume the payment of the State tax at the point of ultimate destination, * * *"

and authorizes the confiscation of the cigarettes, vehicle, vessel, and paraphernalia as contraband and the imposition of a maximum penalty of $25 per carton in the absence of the required documents. It protects an innocent lienor with respect to the vehicle, and upon an appropriate finding Giroux' truck was turned over to a Vermont bank.

The invoices in Giroux' possession revealed the true name and address of the seller and the quantities and brands of the cigarettes, but were held to be insufficient in two respects: (1) they read "Sold to Leon c/o Magnesia Plant, Elkton, Md.," and although signed "Leon Giroux" at the place designated for "Customer's Signature," yet, as found below, it was Giroux' undisclosed principal who was the consignee or purchaser; and (2) they did not contain "the name and address of the person who has or shall assume the payment of the State tax at the point of ultimate destination." Giroux disputes the finding that he was acting for another and insists he was the true consignee or purchaser within the meaning of the act. We need not dwell upon this proposition, since for other reasons we conclude the judgments must be reversed.

Plaintiff accepts the finding that the cigarettes were destined for Vermont and hence that no evasion of our tax was contemplated, but maintains that a violation of the cigarette tax law of Vermont was intended and that our statute denies the use of our highways for that illegal purpose.

Defendant disputes the constitutional power of New Jersey to restrain interstate transit to protect sister states. We do not reach the issue thus tendered since we think it clear that the Legislature concerned itself solely with our tax and evasions of it.

There is no reference in the title or body of the act to the violation of the laws of another state or the use of the highways for such purpose. Nor does the history of the particular section here involved support plaintiff's thesis; on the contrary, it reveals ...


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