People v. Wilmerding

• Citation: 32 N.E. 1099,136 N.Y. 363
• Parties: PEOPLE v. WILMERDING.
• Decision Date: 17 January 1893
• Court: New York Court of Appeals

136 N.Y. 363

32 N.E. 1099

PEOPLE

v.WILMERDING.

Court of Appeals of New York.

Jan. 17, 1893.

Appeal from supreme court, general term, first department.

Submission of controversy between the people of the state and John C. Wilmerding on an agreed statement as to the right of the state to exact duties from auctioneers. From the judgment of the general term in favor of the state, (17 N. Y. Supp. 102,) defendant appeals. Reversed.

Hays & Greenbaum,(Daniel P. Hays, of counsel,) for appellant.

S. W. Rosendale, Atty. Gen.,( W. A. Poste, of counsel,) for the people.

PECKHAM, J.

This controversy comes before us on appeal from a judgment of the general term of the first department in favor of the plaintiff, entered upon a submission of an agreed case to the court without suit. The defendant is an auctioneer residing in the city of New York, and during the last six months of the year ending in December, 1889, he made certain sales of goods which had been imported, and upon which sales the plaintiff claimed certain fees or duties had accured, and were payable by the defendant to the state comptroller. The defendant asserted that the act under which the duties were claimed had been repealed before the duties were alleged to have accrued. If wrong in that, he asserted the act was unconstitutional in that it assumed to exact duties on imports, and that the goods upon the sale of which the duties were demanded were imported goods, and sold in their original packages, and that no duties upon such sales could be constitutionally demanded under state authority. It was also alleged that this statute under which the duties were claimed had been held unconstitutional, so far as applicable to sales of imported articles in their original packages, and even if the goods in question had become mingled with the general merchandise of the country at the time when the sales were made upon which the duties accrued, yet the act could not be separated in its application, and rendered valid as to duties upon sales of goods after their first sale in the original importers' packages, while void as to such first sales.

It is unnecessary to discuss the question of constitutionality, or the question whether the goods were still imports at the time of the sale, and therefore had not yet become part of the merchandise of the country, provided we should conclude there was no existing statute which directed the collection of the duties claimed. Some examination of the legislation on this subject is necessary, in order to answer this question. It is sufficient for this purpose to resort to the act as set forth in 1 Rev. St. 528, relating to sales by auctioneers. The first section provided for the payment of duties on merchandise therein described, each time the goods were struck off on a sale; various rates of duties being imposed upon different classes of merchandise, depending upon the character thereof, and its place of growth or manufacture. The act contained some 40 sections, and legislated concerning many details regarding sales by auction, and as to auctioneers; their giving bonds, making quarterly accounts, verifying the same, paying the duties imposed by law, and many other matters. The act was in the nature of a Code relating to auctioneers, and sales of goods by them at auction, and it remained in this condition until the passage of the act of 1846, c. 62. That act, in its first section, made some alterations in the provisions of the first section of the Revised Statutes, above cited, and also enacted some new provisions in other sections as to auctioneers, and by section 10 expressly repealed the first and fourth sections of the act in the Revised Statutes. The act, as contained in the Revised Statutes, was not touched by the act of 1846, other than by the repeal of its first and fourth sections; and after the passage of the act of 1846 the two acts stood together as constituting the legislation upon the subject treated of by them. The next act upon the subject was passed in 1866, and is chapter 547 of the Laws of that year. The beginning of the first section of the act is in these words: ‘Section 1. Section one of chapter 62 of the Laws of 1846 is hereby amended so as to read as follows.’ The section as amended then makes the same provisions for imposing duties or fees upon each and every sale of goods and merchandise at auction, and at the same rates, as in the first section of the act of 1846. The amendment, however, enlarges the class of persons liable to pay these duties on sales by including brokers offering goods for sale by sample or otherwise, and an addition to the section is also made in regard to the fees or duties upon damaged goods; and as thus amended the section stood thereafter as the only legislation providing for the payment of duties on sales, etc. The first section in the act of 1846 was annulled and destroyed by it, as to all future cases. Then came the act, chapter 106 of the Laws of 1868, part of whose title is ‘an act to repeal chapter 547 of the Laws of 1866,’ and the first section of which enacts that ‘chapter 547 of the Laws of 1866, entitled ‘An act to amend chapter 62 of the Laws of 1846, and other acts additional to the same,’ is hereby repealed.' At the same time, and by the same section, the act, chapter 399 of the Laws of 1849, is amended ‘so as to read as follows;’ and it then proceeds to amend that section so as to add a provision that the agents employed by the comptroller might approve the bond required by law to be given by auctioneers, etc.

It is now contended on the part of the defendant that the repeal by the act of 1868 of the enactment contained in the act of 1866 does not revive the first section of the act of 1846, and that since the statute of 1868 there has been no statute in existence under which auctioneers can be compelled to pay fees or duties upon sales of goods at auctions. It is a general rule that, where a statute repealing an earlier statute is itself repealed, the earlier statute comes in force upon such last repeal. Van Denburgh v. President, etc., 66 N. Y. 1. There is also another rule well established in this court, which holds that a statute declaring a former statute to be thereby amended so as to read as prescribed in the amending act is not a repeal of the original statute, and that from the time of the passage of the amendatory act it is the only enactment on the subject as to future transactions, and the former statute is merged and lost in, and has no vitality distinct from, the amendatory act; and it has been held that a repeal of the amendatory act does not revive the original act, but both fall by virtue of the repeal of the later act. People v. Supervisors, 67 N. Y. 109. If there were nothing more than this statement, it would seem that under the authority of this case the repeal of the act of 1866 had not worked the restoration of the first section of the act of 1846, and that consequently there was no statute in existence which provided for collecting those fees or duties. The plaintiffs, however, answer this claim by alleging that it was nevertheless the legislative intent contained in the act of 1868 to revive the first section of the act of 1846 by the repeal of the act of 1866. The evidence of this intent is to be found, they say, in the fact that, if the section were not revived, there would be no statute for the collection of fees or duties upon sales of goods at auction. Further evidence of such intent is also to be found, as the plaintiffs allege, in the fact that the repealing act of 1868, in its second section, amends, so as to read as is therein prescribed, the second section of the act of 1849, c. 399, which was passed to prevent frauds in auctioneers' returns made to the comptroller; and such second section of this act of 1868, while amending the provision of the act of 1849 for the appointment of an agent by the comptroller to carry the act into effect, and empowering the agent to administer oaths to auctioneers, and to require necessary information to ascertain the true amount of goods sold at auction by them, adds a provision authorizing the agent to take and approve the bond required by law to be given by auctioneers, and provides for their fees therefor. It is asked, what would be the sense or propriety of amending the act of 1849 in this manner, if at the same time, and in the same statute enacting such amendments, a section existed which, by virtue of its provisions, utterly wiped out all enactments providing for the payment of fees or duties by auctioneers upon the sale of goods or merchandise at auction? Judging from these facts as to the legislative intent, the plaintiffs urge that the legislature intended to restore the first section of the act of 1846, when it repealed, in so many words, the act of 1866.

The fact first stated, that unless the first section of the act of 1846 is to be held as revived by the repeal of the act of 1866, then there is no statute providing for the collection of these duties, is of no significance when standing alone. That may have been the legislative purpose; and, judging of that purpose from the use of the language adopted, it would be conclusive of an intent to accomplish that very result. The fact becomes important only when regarded in connection with the second ground taken by the plaintiffs, as just stated. The whole argument does not, as it seems to me, give due and proper weight to the principle which has been so plainly and so recently decided by this court in the case of People v. Supervisors, above cited. It was there distinctly decided that an earlier statute which was amended and re-enacted in the shape of an amendment, so as to read as prescribed in the later amendatory statute was thereby wholly annulled as to all future cases, and became merged and incorporated into the later statute. It was further held that, when the statute accomplishing an amendment in this manner is...