# Pfeiffer v. State > Supreme Court of Arkansas · October 22, 1956 · 226 Ark. 825 URL: https://www.frixlaw.com/law-library/cases/7814843 ## Case - **Full name:** Pfeiffer v. State - **Court:** Supreme Court of Arkansas - **Decided:** October 22, 1956 - **Citations:** 226 Ark. 825; 295 S.W.2d 365; 1956 Ark. LEXIS 580 - **Precedential status:** Published - **Opinion:** Dissent by Holt - **Judges:** Holt, McFaddin, Millwee, Robinson - **Cited by:** 2 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7814843 ## Opinion text J. Seaborn Holt, Associate Justice (dissent). In my view, if the majority opinion stands its effect will he far-reaching and open the doors to bootleggers of cigarettes and also liquor, [the liquor traffic tax and transportation of liquor, § 48-921, 48-925, 48-934, Ark. Stats. 1947]. At the outset I want to point out that the majority opinion, in the last paragraph, states that “the State has no authority to levy a tax on property while it is being transported in interstate commerce.” It is not my understanding that we are dealing here with a tax on property. The cigarette tax is not a tax on property but is an excise, or a tax on the privilege of holding or possessing cigarettes for personal use or for any other purpose in the State of Arkansas. § 84-2304, Arle. Stats. 1947 provides: “There is hereby levied the following excise or privilege tax, etc.” “There is a material distinction between an excise and a property tax. An excise tax has been defined to be a tax imposed upon the performance of an act, engaging in an occupation, or the enjoyment of a privilege. It is usually imposed directly by the legislature, without an assessment, while a property tax is ordinarily computed upon valuation and levied either where the property is situated or at the owner’s domicile, etc.” [Head v. Cigarette Sales Co., 188 Ga. 452 , 4 SB 2nd 203]. As I read this record the facts are practically undisputed. Appellant, after procuring 173 cases of cigarettes for himself in St. Louis, Missouri, and loading them into his personally owned truck, entered Arkansas where he was arrested for violation of § 84-2317 Ark. Stats. 1947 which prohibits the possession for one’s own use or any other purpose, cigarettes upon which the Arkansas cigarette tax has not been paid. At the time of his arrest he admitted that he had not paid the cigarette tax required. He was not a common carrier, was not a licensed Arkansas dealer, wholesaler, distributor or retailer, had no federal interstate commerce permit and carried no bill of lading. There was no consignee for the cigarettes. He said he was on his way with his cargo to Texas, and, in effect, that he proposed to dispose of them anywhere along the route in Arkansas if he could find a buyer that would net him a 3% profit. He had no one in mind either in Arkansas or Texas to whom he would sell the cigarettes. In these circumstances the majority hold that “beyond a doubt” these cigarettes, when appellant was arrested, were being transported in interstate commerce; had not come to rest in this state; and that the tax imposed by Arkansas was a burden on interstate commerce and, therefore, unconstitutional. It seems to me that it would be splitting hairs for us to say in the circumstances here that this cargo of untaxed cigarettes, which defendant had in his possession in Arkansas, had not, in effect, come to rest, and thus take it out of interstate commerce, just because the defendant was apprehended before he had actually sold any of the cigarettes in Arkansas. I think the direct and circumstantial evidence in this case was substantial and supports the judgment of the circuit court. It is undisputed, that defendant every foot of the way on his proposed journey through Arkansas was ready, willing, and intended to dispose of his cigarettes or any part thereof in Arkansas to anybody who might care to buy. Are we going to say that it was necessary in these circumstances for the State of Arkansas to trail defendant every inch of the way through the State in order to catch him in the act of a sale, when the mere possession of the untaxed cigarettes is illegal. “. . . the immunity in case of an article transported from another state depends upon whether the tax challenged regulates or burdens interstate commerce. While a tax which discriminates against goods transported in interstate commerce is invalid, a state tax upon merchandise brought in from another state or upon its sales, whether in the original packages or not, after it has reached its destination and is in a state of rest, is lawful if the tax is not discriminating in its incidence against the merchandise because of its origin in another state.” 11 Am. Jur., Commerce, § 56. “... Also, in the absence of congressional legislation, a state may constitutionally impose taxes, enact inspection laws, quarantine laws, and, generally, laws of internal police, even though the enactments may have an incidental effect upon interstate commerce ...” 11 Am. Jur., Commerce, § 23. As I see it, whether the appellant was legally transporting the cigarettes in question across the state line, is not a question of law, hut one of fact, the evidence was conflicting as to the ultimate destination of the cigarettes and whether they were being transported interstate. In the Georgia case above, the supreme court of that state, in construing a cigarette statute similar in effect to our own, had this to say: “Under a proper construction of the statute, the tax is not laid upon the privilege of receiving cigarettes in this State, but is levied upon the privilege of retaining, keeping, holding, or possessing them for personal use, after they have been . . . brought into this State, the essential requirement being that any person . . . within one hour . . . after having brought the same within the State of Georgia, as the case may be, and before the same, or any part thereof, are used or consumed, cause the same to have the requisite denomination and amount of stamp or stamps to represent the tax due thereon affixed as stated . . . we think it is a tax for the privilege of holding or possessing for personal use after receipt or acquisition by any means. This seems to be the necessary conclusion, in view of the provision that if the cigarettes are not stamped as required, the person acquiring them ‘shall within one hour after receipt of such products, or after having acquired possession thereof, or after having brought the same within the State of Georgia, as the case may be, and before the same, or any part thereof, are used or consumed,’ cause the requisite denomination and amount of stamps to be affixed. The tax is therefore an excise upon the privilege of use, or of holding or possessing for use, and not upon receipt. As was stated in Henneford v. Silas Mason Co., 300 U. S. 577 , 57 S. Ct. 524, 526 , 81 L. Ed. 814 , ‘The tax is not upon the operations of interstate commerce, but upon the privilege of use after commerce is at an end.’ ” So I conclude that there was some substantial evidence to support the judgment in this ease and I would affirm. Mr. Justice Millwee joins in this dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7814843. Public record. Not legal advice.