Sam RobiNsoN, Associate Justice.
Appellant appeals from a conviction of violating Section 17 of Act 416 of the Acts of the General Assembly of the State of Arkansas for the year 1941, Ark. Stats. § 84-2317, which provides: “Except as herein provided, it shall be unlawful for any person to receive or have in his possession, for sale, consumption, or any other purpose, any cigarettes upon which the tax prescribed by this act [§§ 84-2301-84-2331] has not been paid, and to the package containing which proper stamps prescribed by this act have not been affixed. The absence of the proper stamps from any container of any cigarettes shall be notice to all persons that the tax has not been paid and shall be prima facie evidence of the nonpayment of such tax. Provided, that the provisions of this section shall not be construed to apply to distributors and common carriers as herein-before defined.” It is conceded that no Arkansas tax has been paid on the cigarettes and that appellant is not a distributor or a common carrier.
The appellant is a resident of Hills Corner, Wisconsin, and owns a 1 1/2 or 2 ton Ford Truck. During the summer of 1955, he went into the trucking business and transported a load of candy from St. Louis to Texas; on his return trip he hauled watermelons. In August 1955, he purchased in St. Louis 173 cases of cigarettes for the price of $16,429.47. He transported these cigarettes in his truck from St. Louis to a point on Highway 67 at Newport, Arkansas, where he was arrested and charged with violation of the above mentioned statute. He was fined $200, and the 173 cases of cigarettes he had in his truck were confiscated and sold to the highest bidder for $15,628.68. The proceeds of the sale of the cigarettes are being held in the registry of the court pending this appeal.
First, appellant contends that Act 416 provides no penalty for the violation of Section 17 thereof. However, Section 17 clearly states that it is unlawful to do the thing appellant is charged with doing, and § 41-105, Ark. Stats., provides: “Where the performance of any act is prohibited, or the performance of any act is required, by any statute, and no penalty for the violation of such statute is imposed, either in the same section containing such prohibition, or requiring such act or duty, or in any other section or statute, the doing of such prohibited act, or the neglect of such required act or duty, shall be deemed a misdemeanor.” And § 41-106 provides.: “Every person who shall be convicted of any misdemeanor, the punishment of which is not defined in this or some other statute, shall be punished by imprisonment, not exceeding one [1] year, or by fine not exceeding two hundred and fifty dollars [$250] or by fine .and imprisonment both.” When all three sections are read together it is clear that the appellant, if guilty at all, is guilty of a misdemeanor and subject to the penalty as set out in § 41-106,* and § 84-2327, Ark. Stats., provides for the confiscation and sale of the cigarettes upon conviction of any defendant charged with the violation of any of the provisions of Act 416 of 1941.
Next, appellant says that he was transporting cigarettes in interstate commerce; that cigarettes are legitimate articles of commerce, and that the State has no power to punish him for his act. Article 1, Section 8, Clause 3 of the Constitution of the United States provides: “The Congress of the United States shall have power [Cl. 3] to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” Appellant is correct in his contention that cigarettes are legitimate articles of commerce. Austin v. Tennessee, 21 S. Ct. Reporter 132. And, the evidence is overwhelming to the effect that the cigarettes were being transported in interstate commerce; in fact, there is no substantial evidence to the contrary. The appellant bought the cigarettes in St. Louis, Missouri. He entered the State of Arkansas on U. S. Highway 67, near Corning, Arkansas, and there is no evidence that he stopped any place in Arkansas except at the revenue station at the port of entry. There he paid taxes on the gasoline that he would use in traveling through this State to the State of Texas, and he made full disclosure of the fact that his cargo consisted of cigarettes. While still traveling on Highway 67, in Newport, Arkansas, he was stopped by a State Policeman, and arrested. He had reached no destination; he was traveling on a highway that goes from Missouri on the north to Texas on the south.
The State contends that the appellant had reached his destination because he stated, on cross-examination, that he would have sold the cigarettes in Arkansas if he could have made, a 3% profit. Appellant’s .intention- is not controlling. The test to be applied in determining the gnilt or innocence of the accused is whether the cigarettes had actually reached a destination in the State, of Arkansas. There was no break in the continuity of transit. In Missouri Pacific Railroad Company v. Schnipper, 51 F. 2d 749, the court said: “It is well established that the question as to whether the continuity in transit of a movement in interstate or foreign commerce is broken by an interruption at an intermediate point is not controlled by the character or method of the billing of the shipment nor by the fact that the exact ultimate destination in another state or country may or may not be known at the time of shipment . . . Nor does the mere fact that the goods may be under the control of the owner at the point of interruption with power in the owner there to withdraw or divert the goods from the interstate or foreign movement take the goods out of interstate or foreign commerce ... . ”
The States “may not tax property in transit in interstate commerce.” Minnesota v. Blasius, 290 U. S. 1, 54 S. Ct. 34, 78 L. Ed. 131. The early case of Brown, et al. v. State of Maryland, 12 Wheat 419, 25 U. S. 419, 6 L. Ed. 678, appears to hold that no tax can be levied on an interstate shipment as long as the articles remain in the original packages; that imported articles can be held in the original packages, without being mingled with other property, and then sold without the payment of any license or tax, but later cases hold that the imported property is subject to a tax after it reaches a destination. Sonneborn Brothers v. Cureton, 262 U. S. 506, 43 S. Ct. 643, 67 L. Ed. 1095; American Steel & Wire Company v. Speed, 192 U. S. 500, 24 S. Ct. 365, 48 L. Ed. 538; Brown v. Houston, 114 U. S. 622, 5 S. Ct. 1091, 29 L. Ed. 257; Woodruff v. Parham, 8 Wall. 123, 19 L. Ed. 382.
It appears that all of the cases upholding the levy of a tax by a state, where an interstate commerce question is involved, base the constitutionality of the tax on the fact that the transported property had come to rest at a destination. The State cites Wiloil Corporation v. Commonwealth of Pennsylvania, 294 U. S. 169, 55 S. Ct. 358, 79 L. Ed. 838, as sustaining the proposition that the State has the right to tax the cigarettes involved here.
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Sam RobiNsoN, Associate Justice.
Appellant appeals from a conviction of violating Section 17 of Act 416 of the Acts of the General Assembly of the State of Arkansas for the year 1941, Ark. Stats. § 84-2317, which provides: “Except as herein provided, it shall be unlawful for any person to receive or have in his possession, for sale, consumption, or any other purpose, any cigarettes upon which the tax prescribed by this act [§§ 84-2301-84-2331] has not been paid, and to the package containing which proper stamps prescribed by this act have not been affixed. The absence of the proper stamps from any container of any cigarettes shall be notice to all persons that the tax has not been paid and shall be prima facie evidence of the nonpayment of such tax. Provided, that the provisions of this section shall not be construed to apply to distributors and common carriers as herein-before defined.” It is conceded that no Arkansas tax has been paid on the cigarettes and that appellant is not a distributor or a common carrier.
The appellant is a resident of Hills Corner, Wisconsin, and owns a 1 1/2 or 2 ton Ford Truck. During the summer of 1955, he went into the trucking business and transported a load of candy from St. Louis to Texas; on his return trip he hauled watermelons. In August 1955, he purchased in St. Louis 173 cases of cigarettes for the price of $16,429.47. He transported these cigarettes in his truck from St. Louis to a point on Highway 67 at Newport, Arkansas, where he was arrested and charged with violation of the above mentioned statute. He was fined $200, and the 173 cases of cigarettes he had in his truck were confiscated and sold to the highest bidder for $15,628.68. The proceeds of the sale of the cigarettes are being held in the registry of the court pending this appeal.
First, appellant contends that Act 416 provides no penalty for the violation of Section 17 thereof. However, Section 17 clearly states that it is unlawful to do the thing appellant is charged with doing, and § 41-105, Ark. Stats., provides: “Where the performance of any act is prohibited, or the performance of any act is required, by any statute, and no penalty for the violation of such statute is imposed, either in the same section containing such prohibition, or requiring such act or duty, or in any other section or statute, the doing of such prohibited act, or the neglect of such required act or duty, shall be deemed a misdemeanor.” And § 41-106 provides.: “Every person who shall be convicted of any misdemeanor, the punishment of which is not defined in this or some other statute, shall be punished by imprisonment, not exceeding one [1] year, or by fine not exceeding two hundred and fifty dollars [$250] or by fine .and imprisonment both.” When all three sections are read together it is clear that the appellant, if guilty at all, is guilty of a misdemeanor and subject to the penalty as set out in § 41-106,* and § 84-2327, Ark. Stats., provides for the confiscation and sale of the cigarettes upon conviction of any defendant charged with the violation of any of the provisions of Act 416 of 1941.
Next, appellant says that he was transporting cigarettes in interstate commerce; that cigarettes are legitimate articles of commerce, and that the State has no power to punish him for his act. Article 1, Section 8, Clause 3 of the Constitution of the United States provides: “The Congress of the United States shall have power [Cl. 3] to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” Appellant is correct in his contention that cigarettes are legitimate articles of commerce. Austin v. Tennessee, 21 S. Ct. Reporter 132. And, the evidence is overwhelming to the effect that the cigarettes were being transported in interstate commerce; in fact, there is no substantial evidence to the contrary. The appellant bought the cigarettes in St. Louis, Missouri. He entered the State of Arkansas on U. S. Highway 67, near Corning, Arkansas, and there is no evidence that he stopped any place in Arkansas except at the revenue station at the port of entry. There he paid taxes on the gasoline that he would use in traveling through this State to the State of Texas, and he made full disclosure of the fact that his cargo consisted of cigarettes. While still traveling on Highway 67, in Newport, Arkansas, he was stopped by a State Policeman, and arrested. He had reached no destination; he was traveling on a highway that goes from Missouri on the north to Texas on the south.
The State contends that the appellant had reached his destination because he stated, on cross-examination, that he would have sold the cigarettes in Arkansas if he could have made, a 3% profit. Appellant’s .intention- is not controlling. The test to be applied in determining the gnilt or innocence of the accused is whether the cigarettes had actually reached a destination in the State, of Arkansas. There was no break in the continuity of transit. In Missouri Pacific Railroad Company v. Schnipper, 51 F. 2d 749, the court said: “It is well established that the question as to whether the continuity in transit of a movement in interstate or foreign commerce is broken by an interruption at an intermediate point is not controlled by the character or method of the billing of the shipment nor by the fact that the exact ultimate destination in another state or country may or may not be known at the time of shipment . . . Nor does the mere fact that the goods may be under the control of the owner at the point of interruption with power in the owner there to withdraw or divert the goods from the interstate or foreign movement take the goods out of interstate or foreign commerce ... . ”
The States “may not tax property in transit in interstate commerce.” Minnesota v. Blasius, 290 U. S. 1, 54 S. Ct. 34, 78 L. Ed. 131. The early case of Brown, et al. v. State of Maryland, 12 Wheat 419, 25 U. S. 419, 6 L. Ed. 678, appears to hold that no tax can be levied on an interstate shipment as long as the articles remain in the original packages; that imported articles can be held in the original packages, without being mingled with other property, and then sold without the payment of any license or tax, but later cases hold that the imported property is subject to a tax after it reaches a destination. Sonneborn Brothers v. Cureton, 262 U. S. 506, 43 S. Ct. 643, 67 L. Ed. 1095; American Steel & Wire Company v. Speed, 192 U. S. 500, 24 S. Ct. 365, 48 L. Ed. 538; Brown v. Houston, 114 U. S. 622, 5 S. Ct. 1091, 29 L. Ed. 257; Woodruff v. Parham, 8 Wall. 123, 19 L. Ed. 382.
It appears that all of the cases upholding the levy of a tax by a state, where an interstate commerce question is involved, base the constitutionality of the tax on the fact that the transported property had come to rest at a destination. The State cites Wiloil Corporation v. Commonwealth of Pennsylvania, 294 U. S. 169, 55 S. Ct. 358, 79 L. Ed. 838, as sustaining the proposition that the State has the right to tax the cigarettes involved here. In that case, the court said: “Our decisions show that, if goods carried from one State have reached destination in another where they are held in original packages for sale, the latter has power without discrimination to tax them as it does other property within its jurisdiction. ’ ’ It will he noticed that the State’s right to tax is contingent upon the property having reached a destination.
We quote from some of the cases:
“We are decidedly of the opinion that even though plaintiff Klugsberg was engaged in interstate commerce, • yet when the cigarettes were finally delivered by the salesmen to the respective purchasers and the purchase money was paid to the salesmen, they ceased to he in interstate commerce and became a proper subject for taxation under the provisions of the Cigarette Law. ’ ’ Sheppard v. Musser, 127 Tex. 193, 92 S. W. 2d 219. In the case at bar, the cigarettes had not been delivered to any one; the owner had just brought them into the State of Arkansas from the State of Missouri; they were in transit in a truck traveling on a public highway.
“Surely when the tobacco company in Kansas sent cigarettes by C. O. D. mail to Brooks in Oklahoma and he paid the C. O. D. charges and took them to his place of business, the delivery was complete.” Ex Parte Winn., 61 Okla. Cr. 1, 64 Pac. 2d 927.
“Where property has come to rest within a State, being held there at the pleasure of the owner, for disposal or use, so that he may dispose of it either within the State, or for shipment elsewhere, as his interest dictates, it is deemed to be a part of the general mass of the property within the State and is thus subject to its taxing power.” Minnesota v. Blasius, 290 U. S. 1, 54 S. Ct. 34, 78 L. Ed. 131.
“Furthermore, the tobacco in suit was not seized while being transported in interstate commerce. The interstate shipment had come to an end. The property had come to rest within the State and was held at the warehouse of the carrier subject to the pleasure of the owner.” Supervisor of Public Accounts v. Twelve Cases of S. T., La. App., 172 So. 364.
The cigarettes involved in the case at bar were, without a doubt, being transported in interstate commerce at the time they were seized by an officer of the State of Arkansas. The defendant was convicted of possessing cigarettes on which the State tax had not been paid. The State has no authority to levy a tax on property while it is being transported in interstate commerce. Therefore, the cause is reversed, with directions that it be dismissed.
Justices Holt and Millwee dissent. Mr. Justice McFaddin concurs.