This is a direct appeal pursuant to Supreme Court Rule 302(b) by defendants, Robert H. Allphin, Director of the Illinois Department of Revenue, and Philip Mitchell, manager of the Department’s investigation division, from an order of the circuit court of Cook County which found them guilty of contempt and imposed fines and jail sentences for violation of a permanent injunction order. The order in question had restrained them from enforcing sections 9c and 18 of the Cigarette Tax Act (Ill. Rev. Stat. 1973, ch. 120, pars. 453.9c and 453.18) against individuals transporting cigarettes from any other State into
The sequence of events leading to this appeal is as follows. On September 2, 1973, Thomas G. O’Leary was arrested by agents of the Illinois Department of Revenue and charged with illegal transportation into Illinois of more than 2,000 non-tax-stamped cigarettes in violation of section 9c of the Cigarette Tax Act (Ill. Rev. Stat. 1973, ch. 120, par. 453.9c). That section prohibits, inter alia, the transportation into Illinois, without prior authorization, of a single lot or shipment of original packages containing more than 2,000 cigarettes which have not been Illinois tax-stamped.
On June 24, 1974, a petition for instructions was filed in the circuit court by the Attorney General on behalf of the Department of Revenue and its director stating that subsequent to the issuance of the injunction order investigators from the Department of Revenue had observed a substantial increase in the number of people driving automobiles bearing Illinois licenses purchasing cigarettes from Indiana cigarette stands near the Ulinois-Indiana border; that signs had been posted in Indiana stating that due to the injunction order there was no longer any limit
On November 6, 1975, the Appellate Court for the
On November 13, 1975, one week after the appellate court’s decision was announced, a petition was filed in the circuit court by Thomas G. O’Leary, individually and as representative of a class of persons similarly situated, requesting the court to issue a rule to show cause why the defendants should not be held in contempt of court for willful failure to comply with the trial court’s injunction order. Although the petition contained various general allegations that the injunction order had been violated, the only specific violations alleged were: that Alphonse Dobrovolskis, who was not engaged in the business of selling cigarettes, “was accosted on the public highways of Indiana on or about September 2, 1973,” and wrongfully arrested and imprisoned; that Daniel Kelly, who purchased no cigarettes of any kind “was subjected to similar abuses as O’Leary and other members of the class”; that Martin Kelly, the father of Daniel Kelly, who had purchased cigarettes for his own use but was not arrested, had been subject to a wrongful search and seizure and had later been
The defendants filed a response to the petition for rule to show cause which denied all material allegations of the petition and contained supporting affidavits by revenue agents with respect to the cases of Martin Kelly and Daniel Kelly. The affidavit cited the details of the Kellys’ arrest for transportation of 727 packages of tax-unstamped cigarettes into Illinois from Indiana and stated that Martin Kelly had admitted he had purchased the cigarettes for fellow employees who paid him 25 cents a carton above his cost.
On December 3, 1975, the trial court issued the rule to show cause, returnable instanter, why the defendants “should not be held in contempt of the court for the alleged failure to comply with the injunction rendered herein.” The trial commenced that day. Plaintiff’s evidence consisted primarily of testimony concerning matters not specifically alleged in the petition for rule to show cause. However, there was testimony by Daniel Kelly that he was the son of Martin Kelly and was driving his father’s car on March 1, 1975, when he was stopped and arrested by Department of Revenue agents while returning from Indiana where his father had purchased 76 cartons of cigarettes. He testified that neither he nor his father had ever been engaged in the business of selling cigarettes and that the purchase had been made by Martin Kelly for his use and that of his family. He also stated that his father had gone to Indiana to buy cigarettes on previous occasions, but he could not remember how many times. Martin Kelly did not testify at the trial.
Alphonse Dobrovolskis, who was named in the petition for rule to show cause and who had verified the petition, was not called by plaintiff as a witness in support
There was testimony by three other witnesses who had purchased cigarettes in Indiana, although none of the incidents they related had been alleged in the petition for rule to show cause. Boysie Queen testified that he and his wife, neither of whom smoked, had each purchased five cartons of cigarettes in Indiana and were stopped by revenue agents on their return to Illinois. They were not arrested, but the agents told them they would have to pay a tax on the cigarettes. Upon being so advised, they returned the cigarettes to Indiana and received a refund. James Bingham, a truck driver who made several trips to Indiana every night on his route, testified that he had been stopped oh several occasions by revenue agents, although there was no testimony that he had ever been arrested. He stated that on one occasion he had nine cartons of cigarettes in his truck and was given a tax slip indicating he owed a $10.80 tax which was to be mailed in to the Department of Revenue. He further testified that he purchased cigarettes about twice a week but never bought more than 10 cartons per week. Some of his purchases were made for fellow employees with funds they had given him for that purpose. He stated that over a period of
Robert H. AJlphin and Philip Mitchell were called as witnesses by plaintiff pursuant to section 60 of the Civil Practice Act, and they each also testified in their own defense. Allphin testified that as Director of the Department of Revenue he was responsible for administering the revenue laws of the State of Illinois and had helped formulate the enforcement procedures in question. He stated that when he became aware of the trial court’s injunction order he directed the cessation of all enforcement activity on the Illinois-Indiana border until the Department received an interpretation of the order “to determine just what we could do to enforce the cigarette tax laws in the State of Illinois. ” Philip Mitchell, who was head of the Department’s investigation division, was instructed to consult legal counsel in the Department of Revenue and in the Attorney General’s office for interpretation of the order. Enforcement procedures were resumed about a week or 10 days later on the basis of guidelines which had been established in the course of such consultations. It was his recollection that when people were stopped and had cigarettes for their own use, they would be permitted to go on but that “we could proceed if there were over 50 cartons involved. ” He testified that he
Philip Mitchell, who was manager of the investigation division of the Illinois Department of Revenue, testified that after discussing the trial court’s injunction order with the Director he consulted the Attorney General’s office, which interpreted the injunction order as permitting the Department to proceed in those cases where “there was a substantial number of cigarettes and if there were a substantial number of different brands.” The Department was further advised by the Attorney General’s office that possession of 50 cartons of unstamped cigarettes would constitute probable cause for arrest. This number was subsequently reduced to 30 after further discussion with an assistant Attorney General. Revenue agents were then instructed that persons who brought in less than 30 cartons of unstamped cigarettes for their own use were to be given tax slips and told they had five days in which to make remittance of use tax to the Department of Revenue. He also stated that he did not understand how certain parts of the injunction order were to be interpreted or implemented — in particular, how the Department was to determine whether a person was bringing the cigarettes into Illinois for resale and what the term “for their own use” meant. He stated that records of the Department indicated that during the period April 25, 1974, to November, 1975, approximately 1,400 persons were observed purchasing cigarettes in Indiana for transportation to Illinois, of which 400 were stopped and only 31 were arrested. He further testified that when the appellate court announced its decision on November 6, 1975, affirming the trial court’s injunction order, the Department ceased the enforcement procedures in question and did not stop any cars thereafter.
Several other investigators employed by the Department of Revenue who were called as witnesses under section 60 testified that they had initially been instructed that when they saw a large quantity of cigarettes being placed in a car in Indiana they were to follow the car to Illinois and stop it; they were then to ask to see the cigarettes, and if the cigarettes did not bear an Illinois tax stamp they were to ascertain what was to be done with them; if the purchaser said the cigarettes were for his own use, a tax slip was to be issued; but if the cigarettes were not for the purchaser’s own use, he would be arrested. This procedure was then modified to provide that transportation into Illinois of 50 or more cartons of unstamped cigarettes of multiple brands would create a presumption that the cigarettes were brought in for sale and would constitute probable cause for arrest. The minimum number of cartons necessary to create the presumption was later reduced to 30. However, there was also testimony to the effect that arrests were made on the basis of the circumstances of each case. In some instances persons who brought in more than 30 cartons were given tax slips and not arrested if the agent was satisfied that the cigarettes had been brought in for the purchaser’s own use. In other instances, persons with less than 30 cartons were arrested when the agent determined that cigarettes had been brought into Illinois for sale and not for the purchaser’s own use. One agent testified that in several instances they
At the conclusion of the trial, Robert H. Allphin, Philip Mitchell, three Department of Revenue investigators and the assistant Attorney General who had rendered advice to the Department were each found guilty of contempt for violation of the court’s injunction order. Defendants Allphin and the three investigators were each fined $1,000 and sentenced to 10 days in the Cook County jail. Defendant Mitchell was fined the same amount but sentenced to 20 days. The assistant Attorney General was fined $2,000. After disposition of various post-trial motions, however, the court vacated the judgments entered against the three investigators and the assistant Attorney General for the reason that they had not been named in the petition for rule to show cause or the rule itself. Defendants Allphin and Mitchell filed notice of appeal to the appellate court, which granted a stay of execution of judgment pending the appeal, and we subsequently allowed a direct appeal to this court.
It is apparent that the proceedings in this case were in the nature of criminal contempt in which the penalties imposed were purely punitive in nature. (Gompers v. Buck’s Stove & Range Co. (1911),
A pertinent factor which must be considered is the specificity of the injunction order. Section 3 — 1 of the Injunction Act (Ill. Rev. Stat. 1973, ch. 69, par. 3 — 1) provides in pertinent part: “Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained; ***.” The foregoing language was taken from Rule 65(d) of the Federal Rules of Civil Procedure (Fed. R. Civ. Pro. 65(d)). The purpose of the rule was succinctly stated by the Supreme Court in International Longshoremen’s Association, Local 1291 v. Philadelphia Marine Trade Association (1967),
In our opinion, the injunction order in this case was not so specific and clear as to be susceptible of only one interpretation. The order enjoined the defendants from enforcing sections 9c and 18 of the Cigarette Tax Act against individuals transporting cigarettes into Illinois “for their own use and not for sale.” The term “own use” is not found in either the Cigarette Tax Act or the Cigarette Use Tax Act, and its meaning is less than clear. For example, does “own use” mean the same as “use” as defined by the relevant statutes, or was it intended to have a more limited meaning such as “personal consumption”? Would a person who purchases cigarettes to give away, or a person who is reimbursed for purchasing cigarettes for others be considered as having purchased cigarettes for his “own use”? More significantly, perhaps, the injunction order contemplated that the Cigarette Tax Act could and would continue to be enforced against individuals transporting cigarettes “for sale.” As is indicated by the trial court’s response to the petition for instructions filed by the defendants, it was apparently intended that the Department could continue to stop cars when persons were observed purchasing cigarettes in Indiana and transporting
The record establishes that, when the injunction order was first issued, the defendants ceased all of the enforcement procedures in question on the Illinois-Indiana border and resumed them only in accordance with guidelines arrived at through consultation with the legal staff of the Department of Revenue and the Attorney General’s office. The defendants also sought clarification of the injunction order by their petition for instructions filed in the trial court, and when no clarification was forthcoming, they continued the enforcement activity in accordance with the advice given by legal counsel. There was no evidence that during the pertinent period of time sections 9c and 18 of the Cigarette Tax Act were applied against persons who were believed to have brought cigarettes into Illinois for their own use. Instead, the record reflects an attempt by the Department of Revenue to enforce those sections against persons who, on the basis of various circumstances, including the quantity and number of brands of cigarettes, were supsected of transporting cigarettes into Illinois for sale. We note also that the enforcement procedures in question were immediately terminated when the appellate court announced its decision affirming the trial court’s injunction order. In our opinion, the record before us does not establish beyond a reasonable doubt that defendants willfully violated the injunction order.
For the reasons above stated we hold that the evidence did not establish beyond a reasonable doubt that defendants willfully violated the trial court’s injunction order. Accordingly, the judgment of the trial court finding defendants guilty of contempt and imposing fines and jail sentences is reversed.
Judgment reversed.