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price and the price is gradually to interfere, Columbus is one of the lowered until someone buys, is within largest cities of the second class witha statute regulating auctions. De- in the state, and the prohibition in posit v. Pitts (1879) 18 Hun (N. Y.) question, especially in its application 475.

to sidewalks, may, for aught we A single instance of an auction sale know, be eminently proper. It vioof goods in a retail store, conducted lates no private right; it does not by a licensed auctioneer hired for the forbid sales by auction, nor assume occasion, does not make the store- to regulate them in any other way keeper liable for a license as one en- than by prohibiting an invasion of the gaged in the business of selling at public rights. It is, therefore, not auction. Karthaus v. State (1923) in restraint of trade." Ala. App. 95 So, 563.

In an early case in Pennsylvania “The defendant testified that he did it was held that under the act then not sell more than one fifth of his in force a licensed auctioneer was engoods by auction, and contends that titled to maintain but one auction his principal business was not sell- house, and could not sell elsewhere. ing goods by auction, and therefore Wood v. Com. (1824) 12 Serg. & R. the tax upon him was not authorized (Pa.) 213. by the statute; but there was evidence

Kind of goods to be sold. for the state that he carried on the

An ordinance prohibiting the sale auctioneering day and night up to 9

of watches or jewelry at auction is and 10 o'clock at night; that at his reasonable. State ex rel. Cook v. auctions his place of business was Bates (1907) 101 Minn. 301, 112 N. W. crowded; and that he had no counters

67, wherein it was said: “The regulain his store, and did not sell goods tion and policing of a business inlike merchants. This was a question clude reasonable and necessary limitaof fact for the jury." State v. Razook

tions and restraints upon the busi(1920) 179 N. C. 708, 103 S. E. 67.

ness. Now, auction sales of watches IV. Regulation other than requirement

and jewelry are often mere schemes of license.

for trapping and defrauding the un

wary, and a large discretion must be Place of sale. In the reported case (DORNBERG v.

allowed to the city council in deterSPOKANE, ante, 295) an ordinance

mining what restraints or prohibiforbidding public auctions within a

tions it is necessary to impose upon prescribed portion of the business dis

the general business of a licensed trict of a city is held to be invalid,

auctioneer, to effectually regulate and the fact that crowds are attracted by

police the business. If there be any

fair doubt on the question of the an auction being held to be insuffi

reasonableness of the ordinance, it cient to warrant the regulation in

must be resolved in favor of its validiquestion.

ty; for the courts will not substitute A prohibition of auction sales on

their discretion for that of the muthe streets, sidewalks, alleys, and

nicipal authorities. Re Wilson (1884) public grounds of a city is valid.

32 Minn. 145, 146, 19 N. W. 723. We White v. Kent (1860) 11 Ohio St. 550.

are of the opinion that the restrictions The court said: “It is said, however, and prohibitions of the ordinance in that the prohibition of this ordinance, question are not unreasonable, and though it might be necessary in a hold that its enactment by the city large and populous city, is unreason- council was authorized by the charter able in such a city as Columbus. On of the city. The claim that the ordithis subject, much be left to the dis- nance is invalid, because it is 'discretion of the city council, and un- criminatory as against a certain busiless that discretion be exercised in a ness within a certain class,' cannot manner clearly unreasonable, so as be sustained. True it is that the to infringe upon private rights, it is ordinance, as a means of policing and not within the province of courts regulating the general business of an

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auctioneer, prohibits the conducting public have, before the passage of the of auction sales of jewelry and amended ordinance in question, been watches; but such special sales are frequently deceived and defrauded liable to be attended with great by the auction sales of such articles abuses, and to result in cheating and as are ment ed in such ordinance, defrauding the unsophisticated, which after usual business hours and unis not the case with the general busi- der artificial lights, and that this is ness of an auctioneer. The ordinance likely to occur if such sales are alapplies equally to all auction sales lowed, for the reasons that it is more within the city, and it is not discrim- important and necessary for the proinatory, and we hold it valid."

tection of the purchaser that he be An ordinance prohibiting auction afforded reasonable opportunity sales of jewelry, but excepting sales of inspection of such articles, under of stock on hand by merchants who ordinary conditions and lighting, than have been engaged for one year prior of other forms of merchandise; to the auction as wholesale or retail that, unless such opportunity is afjewelry merchants, is valid. Mogul v. forded, the purchaser is easily deGaither (1923) 142 Md. 380, 121 Atl. frauded and misled in his purchase; 32, wherein the court said: "It is and that such sales are frequently apparent that auction sales of the conducted by irresponsible parties, class prohibited may be attended with who have come into the city for temmuch greater risk to the public than porary purposes only, who deceive the the auction sales permitted upon the public by fraudulent sales, and then conditions named, and that the classi- remove from the jurisdiction of the fication made by the ordinance is not court, or prove to be unreliable and an arbitrary one, but one that bears insolvent, whereby the public are a reasonable relation to the object irreparably injured. In view of the sought to be accomplished by it." evidence of facts demonstrated by exSee also supra, II.

perience in the city in question, Time of sale.

we are of opinion that, in singling It has been held that an ordinance

out the sales in question and forbidprohibiting auction sales between the ding them between the hours named, hours of 6 o'clock P. M. and 8 o'clock while not forbidding other auction A. M. is unreasonable and invalid. sales, or sales of the same articles People v. Gibbs (1915) 186 Mich. 127, by those conducting the usual busi152 N. W. 1053, Ann. Cas. 1917B,

ness of jewelers, or of other mer830; Robinson v. Wood (1922) 119

chants, such discrimination in the Misc. 299, 196 N. Y. Supp. 209.

ordinance in question was made upon It is to be noted that the ordinance a reasonable basis. While it is true, involved in People v. Gibbs (Mich.) no doubt, that frauds may occur in supra, contained very elaborate pro

sales made of such articles, otherwise visions for the safeguarding of pur

than at auction during the hours in chasers against fraud, which were re

question, the evidence referred to ferred to as sufficient without the

(which is not controverted) shows, prohibition of evening sales. This and it is, indeed, as we think, a matfact was referred to in Roanoke v. ter of common knowledge, that frauds, Fisher (1923) - Va. 119 S. E. and more especially irreparable injury 259, in distinguishing the Gibbs Case. to the public, are more likely to occur On the other hand, it has been

in auction sales of such articles after held that an ordinance forbidding the usual hours of business, and by the sale of watches at auction after artificial light, than in the case or 6 o'clock P. M. is valid, Buffalo other sales of the same character v. Marion (1895) 13 Misc. 639, 34 of goods. This situation furnishes a N. Y. Supp. 945; Roanoke v. Fisher reasonable basis for the discrimina(Va.) supra.

In the case last cited tion contained in the ordinance. And, it was said: “There is evidence in since the ordinance is applicable alike the instant case to the effect that the to all who may conduct the business

was

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of making the forbidden sales with- town may require to be licensed; but in the territorial limits of the city, they are not competent judges how we are of opinion, under the settled many may be necessary or proper in principles of law above referred to, other towns, and, if they are, still the that the ordinance is valid."

qualifications deemed sufficient by the In Rochester V. Close (1885) 35 selectmen of one town might be wholHun (N. Y.) 208, it was said, obiter, ly insufficient for such an office in of such a regulation: “The ordi- another town. It could never be the nance in question

doubtless design of the legislature that one of passed for the purpose of protecting the smallest and most remote towns the public from imposition in the in the state should, by their selectpurchase of a class of goods, the men, have the power to appoint a quality of which cannot well be de- swarm of auctioneers, and thereby termined by artificial light, and for authorize them to go into the large that reason every intendment should and more populous towns, open their be indulged in support of its valid- offices, and sell goods at vendue, to ity." See also supra, II.

the exclusion, or, at least, the great

prejudice, of those persons appointed V. Licenses.

by the selectmen of such towns.” a. In general.

The offense of selling at auction In State v. Pearce (1917) 16 Ala. without a license and the offense of App. 69, 75 So. 275, it was pointed selling in violation of regulations out that the Arkansas act (Laws 1915, applicable to sales by licensed aucp. 490, § 1) applies only to auctions tioneers are separate, and a convicin cities and towns, so that no license

tion of the last-named offense cannot is required for a sale elsewhere. be had where no valid license was

Where licensing act permits granted. Clark V. Cushman (1809) agricultural products to be sold by an 5 Mass. 505; Jordan v. Smith (1837) unlicensed auctioneer "at the resi

19 Pick. (Mass.) 287. dence of the owner,” a sale of local So, it has been held that where an agricultural products elsewhere than ordinance provides that no person at the owner's residence is not with

"doing business as a duly licensed in the exception. State v. Rucker

auctioneer" shall sell at certain times (1857) 24 Mo. 557.

of the day, one procuring a licensed Where the “proprietor" of an auc

auctioneer to sell at a forbidden time tion house is required to take out a cannot be convicted under the ordi. license, no conviction of an employee, nance. People v. Mesiner (1913) 178 who is not a proprietor, can be had

Mich. 115, 144 N. W. 490. for selling without a license, irre- That an auctioneer acted without spective of whether his employer is compensation has been held to be no licensed. Kansas City v. Keys (1911) defense for selling at auction with152 Mo. App. 507, 133 S. W. 660. out a license. State v. Rucker (1857) An exception of a person selling

24 Mo. 557. his own goods not more than one day Where only nonresident auctioneers in six months does not render the are required to be licensed, a comregulation discriminatory. State v. plaint for sale without a license must Razook (1920) 179 N. C. 708, 103 S. E. negative the defendant's residence 67.

in the county. State v. Cunningham A license granted by town select

(1903) 75 Vt. 332, 55 Atl. 654. men under a state law gives to a licensed auctioneer no authority to

b. Persons eligible to license. sell outside the limits of the town A statute providing that only voters granting the license. Waterhouse v. resident in the county are eligible Dorr (1826) 4 Me. 333, wherein it was to be licensed as auctioneers is valid. said: “The selectmen are made Wright v. May (1914) 127 Minn. 150, judges of the number and qualifica L.R.A.1915B, 151, 149 N. W. 9. tions of such as the interests of a Under an authority to license any

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"person," a corporation may be li- and other persons selling or putting censed as auctioneer. People ex rel. up for sale goods, wares, merchandise, United Auctioneers v. Scully (1898), or effects by public auction,” the 23 Misc. 732, 53 N. Y. Supp. 125.

council had no authority to refuse In Com. v. Crall (1886) 2 Pa. Co. . an auctioneer's license to a person Ct. 240, it was held that an auction- deemed by them to be a person of bad eer's license could not, under the character. Anyone, it was held, was act then in force (Act June 26, entitled to a license on the payment of 1873), be issued except to one who a reasonable fee, and the power of the carried on or was about to carry on council was confined to the making the business of auctioneer, and not of reasonable provisions for the reguto a merchant for the purpose of a lating and governing of persons so single sale.

licensed. But see, as to a subsequent In Rhode Island, town auctioneers amendment, Bollander Ottawa are civil officers of the town, and (1900) 27 Ont. App. Rep. 335. only qualified electors are eligible. As incident to the power to license, Re Harrington (1922) 44 R. I. 288, 117 it is competent to provide that the Atl. 273.

mayor shall have power to forfeit the

license for a violation of its terms. c. Grant or revocation of license.

Wiggins v. Chicago (1873) 68 Ill. 372, Where the statute authorizes the

wherein it was said: "Such provilicensing of auctioneers “at a meeting

sions may be the only effectual mode had for that purpose," a license

of regulating the business; and, granted at a casual and unofficial whether it be so or not, we regard meeting is not valid. Clark v. Cush

the ordinance as reasonable. The man (1809) 5 Mass. 505.

power must reside somewhere to reA statute providing that the county voke the license, and if it could only board "may" grant a license, while be done by the courts, the delays it confers some discretion on the li

that could be produced in litigation censing board, does not amount to

would render such a provision entirea delegation of legislative power. ly unavailing, as the license would Wright v. May (1914) 127 Minn. 150,

expire before a final determination L.R.A.1915B, 151, 149 N. W. 9.

could be had. It is also urged that Under a statute providing that the to determine the grounds of a forcity clerk “shall have authority” to feiture and declare it is judicial, and grant licenses to auctioneers, the duty

that the mayor cannot exercise such to grant a license is not mandatory,

power; that he is not of the magisand the clerk may scrutinize the

tracy that belongs to the judicial dequalifications of an applicant, having

partment of the state. It is enough in view the responsible character of

to say, in reply to this objection, that the occupation. In case of a license

appellant agreed, by receiving the to a corporation this involves the license, that the mayor might exerright to inquire into the qualifications cise the power at his discretion.” of the individuals who will act un- The license of an auctioneer may der it. People ex rel. United Auc- be forfeited, in a criminal prosecutioneers v. Scully (1898) 23 Misc. 732, tion, for certain unfair dealings in 53 N. Y. Supp. 125.

the conduct of his business, but no The discretion of the licensing of- such penalty can be imposed in a ficer will not be controlled by manda- civil suit, brought by a neighboring mus. People ex rel. Schwab v. Grant merchant, nor can the latter be per(1891) 126 N. Y. 473, 27 N. E. 964. mitted to put the auctioneer out of

In Merritt v. Toronto (1895) 22 business by signs or publications Ont. App. Rep. 205, the court held reflecting on the character of his that under the law as it formerly business. Gilly v. Hirsh (1909) 122 stood, which empowered the council La. 966, 20 L.R.A.(N.S.) 972, 48 So. to pass by-laws "for licensing, regu

422. lating, and governing auctioneers In the case of Re Rosenthal (1909) 133 App. Div. 733, 118 N. Y. Supp. license auctioneers, it may name the 241, the court construed the following terms on which it will permit aucprovision of the Greater New York tions to be held. Deposit v. Pitts Charter: "The president of the board (1879) 18 Hun (N. Y.) 475. of aldermen on complaint of any Whether the amount of a license person having been defrauded by any fee or tax is reasonable is a question auctioneer, or by the clerk, agent, or of law for the court, and not one of assignee of such auctioneer, doing fact for the jury. Iowa City v. Newell business in said city, is authorized (1901) 115 Iowa, 55, 87 N. W. 739. and directed to take testimony under What is a reasonable license fee oath relating thereto; and if the must depend largely on the sound charge shall, in his opinion, be sus- discretion of the licensing body, havtained, he shall revoke the license ing reference to all the circumstances granted to such auctioneer, and di- and necessities of the case. The genrect his bonds to be forfeited.” As eral rule is that a reasonable license to the power conferred thereby it was fee should be intended to cover the said: “The legislature clearly lim- expense of issuing it, the services of ited the authority of the president of officers, and other expenses directly the board of aldermen to revoke the or indirectly imposed. Unless the license of an auctioneer to complaint amount is manifestly unreasonable, by a person who has been defrauded in view of its purpose as a regulation, by the auctioneer personally, or by the court will not hold it invalid. the clerk, agent, or assignee of the Mankato v. Fowler (1884) 32 Minn. auctioneer; and a revocation of the 364, 20 N. W. 361. license is only authorized where, by Some courts have adopted the libertestimony under oath, on a hearing al rule that license fees, imposed duly had on notice to the licensee, under the police power, may be susthe charge is fairly sustained.” tained though a revenue is incidental

31 A.L.R.-20.

ly derived therefrom, which rule has d. License tax or fee.

been applied to auctioneers' licenses.

Carrollton v. Bazzette (1896) 159 Ill. General principle.

284, 31 L.R.A. 522, 42 N. E. 837; ManAuthority to license and regulate kato v. Fowler (1884) 32 Minn. 364, 20 auctioneers does not authorize the N. W. 361. imposition of a tax. Mankato

A statute graduating the amount of Fowler (1884) 32 Minn. 364, 20 N. W. fees payable by auctioneers accord361.

ing to the population of the places But where a tax is authorized it where they do business is not invalid is only limited by the necessities of as discriminatory. O'Hara v. State the taxing authority, unless an un- (1898) 121 Ala. 28, 25 So. 622. reasonable burden is thrown on the Also a statute imposing a license particular calling as compared with fee of $600 per year for the district other property and callings. Fretwell of Honolulu, Hawaiian islands, and v. Troy (1877) 18 Kan. 271. See also $15 per year for every other taxation Margolies v. Atlantic City (1902) 67 district, has been sustained as against N. J. L. 82, 50 Atl. 367.

the contention that the classification Power conferred on a municipality of districts was arbitrary and conto tax, license, and regulate auction- stituted a denial of the equal proteceers authorizes the adoption of any tion of the laws. Toyota v. Hawaii reasonable ordinance for that purpose, (1912) 226 U. S. 184, 57 L. ed. 180, but does not authorize the imposition 33 Sup. Ct. Rep. 47, wherein the court of unreasonable tax or license regu- said: “It cannot be said ... that lations. Wiggins v. Chicago (1873) there was no reasonable basis for a 68 Ill. 372; Caldwell v. Lincoln (1886) distinction between Honolulu and 19 Neb. 569, 27 N. W. 647; Margolies other districts. And it was the provv. Atlantic City (N. J.) supra.

ince of the legislature to decide upon Where municipality is given the amount of the fees which should power to prohibit auctions, and to be charged. It must be assumed that

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