Lea v. Yard

And in the course of the argument, both sides referred to the following sections of the several acts of the general assembly relative to auctions.

1. An act was passed on the 14th of February 1729 (1 State Laws, 164, Gall, edit.), “for regulating peddlers, vendues, &c.” The preamble recites, “whereas, of late, many idle and vagrant persons are come into this jjrovince, and under pretence of being hawkers or peddlers, and carrying goods, from house to house, within this province, to sell, have greatly imposed upon many people, as well in the quality as in the price of the goods, and under color of selling their wares and merchandises, have entered into the houses of many honest and sober people, in the absence of the owner or owners of the said houses, and committed felonies and other misdemeanors, to the great prejudice of the inhabitants of this province. For remedying of which inconveniences, and preventing such evil practices, and to the intent that no persons may be admitted to follow the business of hawkers and peddlers, within this province, but persons of known honesty and civil be

havior,” &e., the 6th section of the act provided, “ That no person, or persons whatsoever, except as hereinafter is excepted, shall, after the publication of this act, take upon him, her or themselves, to sell or expose to sale, by way of vendue or auction, any wares, goods or merchandises, within the city of Philadelphia, unless such person or persons shall be recommended by the mayor, recorder and aldermen of the said city of Philadelphia, in their open sessions, to the governor of this province; and shall have given security to'the mayor of the said city, for the time being, for the use of the corporation, in such sum as shall be agreed upon by the said mayor, &c., provided the same do not exceed the sum 500i., for his or their honest and due Execution of the office of the vendue-master, within the city of Philadelphia, and for the due observation of the ordinances of the L said city, touching the regulating vendues or public sales, or auctions, within the same.”

2. An act was passed on the 26th of November 1779 (2 State Laws, 245, McKean’s edit.), “for the effectual suppression of public auctions and vendues, áre.,” to expire at the termination of the war. It provides for the appointment of a single “ auctioneer of the city of Philadelphia and the 9th section declares, “ that the said auctioneer shall, before he enters upon the duties of his office, become bound with two sufficient sureties, unto the president of the supreme executive council of this state, in the sum of 20,000i., conditioned for the faithful performance of the duties required of him, and for the honest and just satisfaction and payment of his employers, and every one of them. And besides the usual attestation required of the officers of this state by law, shall take an oath that he will, to the best of his skill and abilities, faithfully perform and execute the duties required of him by this act.”

3. An act was passed on the 23d of September 1780 (2 State Laws, 406, McKean’s edit.), “ to alter and amend,” the preceding act; by the 2d section of which, the appointment of three auctioneers is authorized, “ who shall continue for and during the will and pleasure of president, &e., and shall give bond to the president and his successors, with two sufficient sureties, in the sum of 20,000i. for the faithful discharge of their duties, and for well and truly per ■ forming the terms and payments in and by this act directed and required :* by the third section, it is provided, that the said auctioneers shall have an exclusive right to sell by public vendue, “ rendering and paying to the state treasurer, for the use of the commonwealth, one per centum, of the gross amount of the sales, so by him or them made as aforesaid, in manner following, that is to say — that each and every of the said auctioneers, shall once in every three months, render an account, upon oath, to the said treasurer, &c., of all the effects and property by him sold, at any time before the said time of rendering the same account, and since his last settlement, and shall then immediately pay to the same treasurer the full amount of the said one pound in the hundred pounds upon the same account. And upon any failure in rendering the same account, upon oath, or of payment of the said sum of one per centum, any auctioneer so failing or neglecting, shall be discharged from his place, and the said bond put immediately in suit:” And by the 8th section, it is provided, that the fees or recompense of the auctioneers, “ for selling at public auction, collecting the money, and paying over the same,

him in a manner so'injurious and oppressive. 2d. The acts of the assembly of the years 1780, 1782, 1783, 1789 and 1790 were in force, when these auctioneers were appointed; they direct that bonds shall be given, and they prescribe the terms of the condition of the bonds; but they do not expressly, in any instance, declare the bonds to be a security for private customers. From the year 1729, until the 26th of November 1779, although several acts were in force to regulate sales at public vendue, there is, likewise, no express provision to be found, declaring the bond of an auctioneer to be for the use of the individuals who employed him. Then, the only act, in the whole of the system, with all its successive modifications, by which the bond is expressly appropriated to the protection of an injured customer, is the act of the 26th of November 1779. 3d. The act of the 26th of November 1'779, by adding to a px-ovision, “for the faithful performance of the duties required of the axxctioneex-,” a provision “ for the honest and just satisfaction and payment of his employers, and every one of them;” shows it to be the sense of the legislature, that the expressions of the former would not embrace the objects of the latter provision. 4th. The duration of the act of the 26th of November 1779, was limited, by its own terms, to the continuance of the war, and the limitation, of course, affected the supplemental acts of 1780 and 1782; but the act of the 9th of December 1783, rendered the supplements perpetual, and so much of the act of 1779, as was not thereby altered or supplied. Then, it is to be considered, that the act of 1780, made expressly “to alter and amend” the act of 1779, not only incx-eases the number of auctioneers, but px-escribes a new condition to be annexed to their bonds, to wit, “for the faithful dischax-ge of their duties, and for. well and truly perfoi-ming the tei-ms and payments in and by this act directed and required,” totally omitting the passage in the condition before prescribed, “ for the honest and just satisfaction and payment of the employers ” of the auctioneer. 5th. The terms of the condition prescribed in the act of 1780, supplied and superseded the tei-ms of the condition in the act of 1779; they do not mean the same thing, and particulax-ly, they do not both embrace the rights of the individual employers, as well as the rights of the public. Thus, the duties referred to by the act of 1780, are the duty of keeping a regular x-egister of horses, *and of accounting to the state; and of acting fairly between buyer and seller; while “the tei-ms and payments” l-equired to be *- performed, are those which are specifically directed and required “in and by this act;” and the act nowhere directs or x-equix-es a payment to the employers, but only to the public. It is true, that the act of 1780, as well as the act of 1779, declares that, “ for selling at public auction, collecting the money, and paying over the same, without loss or waste,” the auctioneer shall be allowed a per-centage; but there is in this provision no duty prescribed, no tei-ms and payments stipulated; nothing that relates to asui-ety, or can affect him: it is mex-ely an enumeration of the services to be performed by the agent, ixx consideration of the compensation whxch the law allows him to demand and receive. 6th.. The legislative intention to limit the opex-ation of the bond to a govex-nmental security, may be fairly inferred from a variety of considex-ations: the smallness of the penalty; the change of expression, to exclude as it were the opposite constx-uction, when a public duty was first imposed by the act of 1780; the increase of the number of auctioneers, which gave individuals a selection, and so far rendered a provision in their

favor unnecessary; the express provision uniformly made for individuals by the legislature in every other case of an official bond; and finally, the general understanding of the bar, expressed in various opinions given upon the case of Major Boyd. (3 Dali. Laws, 181.) 7th. It is not a sufficient answer to these arguments, that auctioneers are public agents, possessing a monopoly of the sales at public vendue, to whom private citizens are obliged to resort; and therefore, ought to be protected. In the first place, the regulations of the acts, though they compel individuals to employ the public auctioneer, do not prevent a special contract between them, as to the collection of moneys, nor even as to the rate of compensation. Besides, it is not true, that the acts expressly empowered the auctioneers alone to collect the proceeds of sales; and the general rule of law is well established, that where the dissenting principal declares himself, a vendee cannot be discharged by a payment to the agent. (2 Ves. 221.) Even in the case of a compulsive agency, if the employer pays the duty and commissions to the auctioneer, he may sue the vendee for the purchase money. (7 T. R. 359.) And in some cases, a contrary doctrine would be iniquitous ; for, suppose the auctioneer becomes bankrupt, before the money is collected; may his assignees collect the money, and put the employer to a dividend ? Or, suppose the sales are made for approved notes, at distant periods, shall it be deemed right and lawful, that the auctioneer shall take the notes, and hold them, or use them, at the risk of the employer, until the credit is expired; and possibly until the money is recovered upon them in an action at law ?

— 1st. The general question is, whether the official bond of an auctioneer is a security for his fidelity towards individuals, as well as towards the public ? On this question, whatever is the meaning of the legislature in the acts of assembly, is the meaning of the parties in the bond. Both principal and surety are bound, according to that meaning; and beyond it, neither of them is bound. The only distinction here between the principal and surety is, that the principal may be liable, either at common law, or on the bond; but the surety can only be liable on the bond. (2 T. R. 105; 1 H. Black. 186.) On the true construction of the bond, however, the surety, as well as the principal, would be liable, even beyond the direct letter (though the present case requires it not). 4 Bro. P. C. 87. And the obiter dieta of Butler, in 2 T. R. 370, must be explained by the subject-matter; while the authority of 2 Wils. 379, yields to the contrary decision in 1 T. R. 291. 2d. Under every modification of the office, duties and bonds of auctioneers, the legislature meant to protect the customers that employed them, as well as the government that appointed them. On principle, it must be meant, since the legislature takes from private individuals the right of choosing their own agents; and from analogy to other public officers, it must be meant, for there is not a single instance in the whole of our code, where an official bond is not, either by express words, or the established, practical construction, held to afford remedy and relief to injured private persons ; as in the cases of sheriffs, coroners, administrators, &c. Cowp. 140 (against Ambl. 183); 3 Atk. 248; 2 Inst. 650; Vaugh. 334; 12 Co. 30 b. But the same meaning is clearly and necessarily derived from *he words of the legislature, in the acts under immediate discussion. Thus, the act of 1729 was passed, because street vendues, &e., had become

a nuisance ; no revenue, or other public object, than to insure fair-dealing, was contemplated ; and the condition of the bond was simply “ for the honest and due execution of the office.” No other honesty or duty could be in view here, than honesty and duty towards the customers of the auctioneer. True, the bond was given for the use of the corporation, and the customers had no personal remedy upon it; but still it operated as a penalty for their protection ; and if the auctioneer was dishonest, or failed in any way to do his duty, the forfeiture was absolute under the act of 1729 ; while it is now contended, that under the act of 1780, so far as security is concerned, if he is honest to the public, there can be no forfeiture of the official bond, let him be ever so fraudulent towards the private citizen. The act of 1779 confirms expressly the legislative meaning to be in favor of giving a security to the employers of auctioneers, both in the terms of the condition of the bond, and the oath of the auctioneer ; and although the phraseology is changed, the substance of the provisions remain the same ; “ an *honest and due r*, Q. execution of the office,” under the act of 1729, certainly including *- “ an honest and just satisfaction and payment of the employers,” as well as a performance of the general duties of the office. But in the act of 1779, “ the use for the corporation,” is discontinued; no other use of the official bond is declared ; the penalty, reduced by the scale of depreciation, is nearly the same as before ; certain duties are prescribed in the 9th and 10th sections (such as a search for offenders, and collecting and paying over the proceeds of sales); but even under this act, no duty is contemplated to be raised on sales at auction. Then, the essential inquiry rests on the act of 1780, which, as well as all the subsequent acts, passed, not to repeal, but to alter, amend, supply or enlarge the provisions of the act of 1779 ; and being in pari materia, must be considered together, in order to ascertain the true moaning of the system. The act of 1780 is the first that contemplates a revenue from sales at auction ; but independent of the provision to secure the revenue, it continues, in substance, the provisions to protect the employers ; particularly, making it a duty, on which the right of compensation arises, to collect the proceeds of sales, “and pay over the same, without loss or waste.” But it is urged, that the act of 1780, when it prescribes the condition of the bond, omits entirely the previous stipulation, “ for the honest and just satisfaction and payment of employers;” and claims from auctioneers only “ the faithful discharge of their duties, and well and truly performing the terms and payments, in and by this act directed and required.” The omission suggested was correct; for in the previous act, the stipulation was tautologous and surplusage ; as the duties of the auctioneer (which he was bound to perform) were emphatically to collect the money and make payment to his employers, no revenue being at that time in contemplation. The appointment of the auctioneer fixes his duties, as does the appointment of a sheriff, &c., without specification or detail. Selling, collecting and paying, form the great outline of those duties. The first and second are common both to the state, and to individuals ; and as to the third, it branches into a payment of the tax to the state, and of the purchase-money to the individuals. Besides, “ the terms and payments directed and required in and by this act,” are also to be performed ; and the payment to the employer is required by the act, as well as the payment to the state. In short, the two members of the condition of the present bond, fortifying and sustaining each

other, must embrace all the duties, all the obligations, which the laws impose upon an auctioneer, or the meaning will be constrained, and inconsistent with the general import of the words. 3d. But in opposition to the meaning of the legislature thus deduced, every kind of inference is offered, as well from the silence, as the expression of the laws. It is said, that neither principal nor surety are liable to the employer, -* *for a performance of their duty to him ; because the act of 1780, and the subsequent acts, do not say so, expressly, as the act of 1779 did; and because the penalty of the bond is inadequate'to afford an indemnity for the injury to which, we contend, it applies. If, therefore, the words omitted had been retained, the controversy must so far have ceased; and the only question is, whether words equipotent, or even more extensive for the object, are not employed. But as to the second difficulty, it sounds in this absurdity, that because the bond is not sufficient to protect the employer entirely, it shall not protect him at all. Is the sheriff’s bond, is a survey- or’s bond, is every administration bond, found commensurate with the possible delinquency or defalcation ? And is it conceivable, that because a surety is called on for less than the loss, that, therefore, he is to pay nothing ? But the truth is, that the sum is more adequate now, than under the act of 1799, when its application to the relief of the employer is admitted. It is raised from the sealed value of 518i. (on 20,000i., at 38|- for one) to the specie value of 2000Í. The increase of the number of auctioneers, virtually augments the fund for the indemnity of individuals ; the restriction to sell in their respective districts (while in force) limited the quantum of custom of each auctioneer ; and the obligation to account quarterly with the state, under the penalty of an immediate dismission from office, reduced the demand of the state for an indemnity to a mere possibility. Neither the first tax of one per cent., nor its subsequent accumulations, could, under such circumstances, require the protection of a penalty of 2000Í. from six auctioneers. (Park. 273.) Something more must be protected than the revenue ; the general provision of the act of 1713 (1 State Laws, 102, Gall, edit.) gives a ground of exposition from all official bonds ; and when revenue only is meant to be protected ; or the penalty is to operate as a punishment to the delinquent, not as a relief to the injured ; in the English statutes, as well as in the Pennsylvania code, the language of the legislature is appropriate and unequivocal. (19 Geo. III., c. 56, § 7 ; 1 Anstr. 586.) 4th. If arguments ab inconvenienti may avail, what can be more forcible, than the inconvenience which proceeds from the opposite construction, when the auctioneer is regarded as a public agent, invested with the exclusive right to collect the moneys on sales at auction ? The rule is different as to a common-law agency; where there are three voluntary parties, the owner', the agent and the buyer (2 Yes. 221), and the difference is not destroyed, though modified, in the case of an agent del credere. (Bull. N. P. 130; 7 T. R. 539.) Here, however, the licensed auctioneer is not only a legislative agent del credere to the buyer, but the state constitutes a fourth party, giving the law to every part of the transaction, to every degree of the responsibility. The auctioneer is, thus, *1061 a trustee ^01' *state: he, not the owner of the goods, nor the buyer, -* must pay the duties to the state; and he gives the security, not the owner. It naturally follows (and so is the practice), that immediately upon a sale, the auctioneer becomes the debtor to the owner of the goods, as well