State v. Conkling

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. [510]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 :