Appeal, No. 227, Jan. T., 1949, from judgment of Superior Court, Oct. T., 1949, No. 73, affirming judgment and sentence of Court of Quarter Sessions of Lehigh County, June Sessions, 1948, No. 40, in case of Commonwealth of Pennsylvania v. Alfred D. Flickinger. Judgment and sentence affirmed.
James C. Lanshe, for appellant.
Ralph B. Umsted, Deputy Attorney General, with him Kenneth H. Koch, District Attorney and T. McKeen Chidsey, Attorney General, for appellee.
Before Drew, C.j., Stern, Stearne, Jones and Bell, JJ.
OPINION BY MR. CHIEF JUSTICE DREW
Does the Act of June 21, 1947, P.L. 911, which makes it a crime to possess 200 or more untaxed cigarettes,*fn1 unconstitutionally interfere with interstate commerce? That is the sole substantial question raised by this appeal.
On or before July 13, 1948, Alfred D. Flickinger, defendant, purchased 350 cartons of 200 cigarettes each in Wilmington, Delaware. The following evening, 332 of those cartons, upon which no Pennsylvania tax had been paid, were found in the trunk of his automobile while it was parked in the rear of his home in the City of Allentown, Lehigh County. Defendant intended to sell those cigarettes, without paying any Pennsylvania tax on them, wherever he might find customers. He was brought before an alderman who found him guilty of having in his possession 332 cartons of untaxed cigarettes in violation of the Act of 1947. An appeal was taken to the Court of Quarter Sessions which, after hearing testimony, made the above findings of fact and sentenced defendant to pay a five of $5.00 per carton or $1660. The Superior Court unanimously affirmed that judgment and this appeal followed.
The Act of 1947 was passed to prevent evasion of the tax imposed by the Cigarette Tax Act of June 14, 1935, P.L. 341, as amended, and must be read in conjunction with it. In enacting the 1947 statute the legislature was exercising its police power by providing penalties for failure to comply with the Cigarette Tax Act. Defendant, while attacking the 1947 Act, supra, has inferentially questioned the constitutionality of the 1935 Act. A proper disposition of the issue raised requires therefore consideration of the validity of both Acts, for if the 1935 Act is unconstitutional, the 1947 Act is likewise unenforceable.
Defendant contends that a carton of cigarettes is an "original package" and therefore any attempt to levy a tax on cartons of cigarettes transported from another state is an unconstitutional interference with interstate commerce. In answering this argument it is not necessary to determine whether a carton of cigarettes is an original package. Assuming arguendo that it is, the Supreme Court of the United States has repeatedly held
that goods transported in interstate commerce are subject to tax when they have reached their destination and become part of the mass of property within the taxing state even though such goods are still in the original packages: Henneford v. Silas Mason ...