State v. Conkling

| Cal. | Jul 1, 1861

Baldwin, J. delivered the opinion of the Court

Field, C. J. concurring.

The question in this case is, as to the construction and effect of the Act of 1859 (Scat. 352) entitled “ An Act to Provide for the Licensing of Auctioneers, and to Define their Duties and Liabilities.” It is contended that this act repeals or supersedes the forty-ninth, fiftieth, fifty-first and fifty-second sections of the Act of 1857, (Stat. 325) entitled “An Act to Provide Revenue for the Support of the Government of this State.” These sections, except the first, were commented upon in the case of the State v. Poulterer (16 Cal. 521). They impose a duty of one half of one per cent, on the amounts of sales of personal property at auction, and provide the means for the collection and payment of the tax by the auctioneer. It is not pretended that there is any express repeal in the Act of 1859 of these sections of the Act of 1857; but the argument is, that the Act of 1859 is a complete, comprehensive and exclusive law as to all the duties and liabilities of auctioneers, and that it furnishes the evidence of the legislative will, that whatever is enjoined therein shall prevail, and whatever was not enjoined was designedly omitted. In other words, that the Act of 1859 is a complete and formal system of itself, prescribing the whole duties and liabilities of auctioneers. It is true that the title of the Act of 1859 and that of the Act of 1857 are not the same, nor are the subjects covered by those titles identical; but not much consideration is due to this circumstance, from the fact that the subject of auctioneers and their licenses and duties are so interwoven with the general Revenue system as almost to require some reference to auctioneers and auction sales in the general Revenue bills. Indeed, it seems from the history of the subject, that the general matter of auctions and auctioneers has been treated by the Legislature, in a great measure, through and as a part of the various Revenue bills, original and amendatory, which from time to time have been passed.

The Act of 1859 seems designed as a compilation or revision, with amendments, of former laws on the subject of auctioneers. The first section provides that any citizen may become an auctioneer for the county in which he resides, on giving bonds, and on payment of the license thereafter provided. The second section prescribes the condition of the bond, its amount, ($5,000) how approved, filed, etc. The third section prescribes that the Controller of State shall cause to be printed a sufficient number of licenses, etc., to be furnished County Treasurers, etc. Section four prescribes: “Any person who shall have filed his bond in accordance with the provisions of this act, shall, upon payment of the sum specified in this section, receive from the County Treasurer a license of the class for Avhieh he has paid ; said license shall be renewed quarterly, and rated as follows :

First Class. Auctioneers whose average monthly sales shall amount to $100,000 and upwards shall constitute the first class, and shall pay a license of four hundred dollars per quarter.

Second Class. Auctioneers whose average monthly sales shall amount to $75,000 and less than $100,000 shall constitute the second class, and pay a license of three hundred dollars per quarter.

Third Class. Auctioneers whose average monthly sales shall amount to $50,000 and less than $75,000 shall constitute the third class, and pay a license of two hundred dollars per quarter.

Fourth Class. Auctioneers whose average monthly sales shall amount to $80,000 and less than $50,000 shall constitute the fourth class, and pay a license of one hundred and twenty-five dollars per quarter.

Fifth Class. Auctioneers whose average monthly sales shall amount to $20,000 and less than $30,000 shall constitute the fifth class, and pay a license of one hundred dollars per quarter.

Sixth Class. Auctioneers whose average monthly sales shall amount to $10,000 and less than $20,000 shall constitute the sixth class, and pay a license of sixty dollars per quarter.

Seventh Class. Auctioneers whose average monthly sales shall be less than $10,000 shall constitute the seventh class, and pay a license of twenty-five dollars per quarter.

Section five provides : “ No section of this act shall be so construed as to require a license to be obtained for the selling of any goods at public sale that may belong to the United States or to this State, or upon property sold by virtue of any process issued by any State Court or United States Court.”

Section six provides : “ Every auctioneer applying to the County Treasurer for a renewal of his license under the provisions of [this] act, shall accompany the application with a statement, under oath, which shall set forth that his average receipts per month, on account of sales during the preceding quarter, do not exceed the amount specified, etc.” Various other provisions are made, some of them going into small details, as in the tenth section.

Section fifteen is as follows : “All acts or parts of acts conflicting with the provisions of this act - are hereby repealed ; provided, that such repeal shall not in any manner affect any rights vested or any liabilities incurred prior to the passage of this act, under or by virtue of the provisions of the act passed May 15th, 1854, entitled 'An Act to Provide Revenue for the Support of the Government,’ and an act entitled ‘An Act to Provide Revenue for the Support of the Government of this State,’ approved April 29th, 1857, and an act entitled ‘An Act Prescribing the Mode of Appointing Auctioneers and Defining their Duties,’ passed April 22nd, 1850, nor affect the rights of recovering in any suits now pending against Auctioneers or violators of the provisions of any of said acts.”

Uo mention is made of the tax of one-half per cent.; but on the contrary, in the proviso to the fifteenth section is a saving of rights vested or liabilities incurred prior to the passage of the act, from which it would seem the Legislature contemplated that other provisions of the old Revenue Acts affecting auctioneers were not to be continued in operation.

The object of all construction of statutes is to get at, and give effect to, the intention of the Legislature. It is not necessary that this intention should be manifested by apt and unambiguous terms, or that it should appear by express words. From the body of an act and its general scope and spirit, and by looking at the circumstances in the mind of the Legislature, we frequently gather the intended meaning of their acts. It would strike a plain man with surprise, if told that the Legislature had industriously compiled a statute, proceeding to minute details on the general subject of the rights, duties and obligations of a class of persons, and had omitted to incorporate a former provision of law touching this subject, and yet that this omission was designed, or had the effect, to include the omitted provision; especially here, when we see proof of caution and care to frame a complete system, and to guard against inferences of omission of other portions of laws by an express saving of them. The title of the act, which may be considered to determine its intent, (Flynn v. Abbott, 16 Cal.) when taken in connection with the general scope and particular clauses of the act, is decisive to show that the Legislature meant to prescribe the duties and liabilities contained in the act as those alone obligatory upon auctioneers. Strength is added to this' view by the clause of the proviso, declaring that the repeal of the laws referred to in the fifteenth section as those conflicting with the provisions of the Act of 1859, should not affect any suits now pending for a violation of the sections of the Act of 1857, etc., which it is now contended are still in force.

We do not consider that the rule applicable here is, that this is a repeal by implication as that rule is usually applied; but the principle is, that when the Legislature makes a revision of particular statutes, and frames a general statute upon the subject matter, and from the framework of the act it is apparent that the Legislature designed a complete scheme for this matter, this is a legislative declaration that whatever is embraced in .the new law shall prevail, and whatever is excluded is ignored. It was upon this principle that the case of Sacramento v. Bird (15 Cal. 294" court="Cal." date_filed="1860-07-01" href="https://app.midpage.ai/document/city--county-of-sacramento-v-bird-5434366?utm_source=webapp" opinion_id="5434366">15 Cal. 294) was decided. There the Consolidation Act of Sacramento county gave to the Treasurer a salary ; the general law allowed the Treasurer a percentage on moneys paid into the State Treasury ; we held that he was only entitled to his salary. Mr. Justice Cope, delivering the opinion of the Court, used this language, which we think correctly gives the rule : “ It is impossible to avoid the conclusion that this salary is in lieu of the per cent, previously allowed, and was not intended as additional compensation to the Treasurer. It is true, the law does not favor the repeal of statutes by implication, but it is not true that a statute, without negative words, will in no case repeal the provisions of a former one, unless the two acts are directly repugnant and inconsistent. Every statute must be considered according to what appears to have been the intention of the Legislature, and even though two statutes relating to the same subject be not in terms repugnant or inconsistent, if the latter statute was clearly intended to prescribe the only rule which should govern in the case provided for, it will be construed as repealing the original act. (Sedg. on Const, and Stat. Law, 124.) So far as this case is concerned, we think there is no difficulty in arriving at the intention of the Legislature. The language of the act is plain and unequivocal, and the meaning clearly is, that the entire compensation shall be $3,000 per annum.”

This doctrine of construction not only commends itself by its plain sense and justice, but is sanctioned by numerous authorities. (Sedg. on Const, and Stat. Law, 124, and the "cases cited in respondent’s brief.) See also Pierpont v. Crouch, (10 Cal. 316) in which case the authorities are collected in the opinion of the present Chief Justice.

It is not necessary to consider the effect of the Revenue Acts of 1860 and 1861; for, if we are right in supposing the Act of 1859 a repeal of or as superseding the quoted section of the Act of 1857, it is very obvious that a mere legislative declaration that that act shall not repeal these sections is not a law reviving them or enacting them, even if the Legislature could give such retrospective effect to their acts ; but there can be no law without a legislative intent that it become such ; and such intent must be manifested by language declaring the legislative will.

It is not necessary to notice other points.

Judgment affirmed.