State, Use Garland County v. Balesh.

McHaney, J. This action was instituted by the prosecuting attorney of the 18th Judicial District, under. §§ 030 to 643, inclusive, of C. & M. Digest, relating .to public auctioneers. The complaint charges that appellee operates a public auction in the city of Hot Springs, No. 350 Central Avenue, at which place various articles of merchandise are offered for sale daily, at public auction, to the highest 'bidder, and that appellee employs others to sell said goods at auction for him; that neither lie nor his employees have obtained a license as public auctioneers. Appellee answered, admitting that he conducted the business alleged in the complaint, but denied that he did so in violation of law, and denied that he and his employees were required by law to take out a license. The case was submitted to the court sitting as a jury, on an agreed statement of facts substantially as follows: Appellee is a resident and taxpayer of Hot Springs, and since 1918 has been selling merchandise in said city, consisting chiefly of Oriental goods, chinaware, linens, antiques and art goods generally, by auctioning same to his customers, instead of the ordinary method of selling over the counter; that he sells only his own goods, in his own storehouse, and not on consignment or for a commission for others; that he has never sold any goods on auction for .any other person, and has never held himself out to the public as a public auctioneer to sell real estate or any other kind or class of goods; that he has paid no license as a public auctioneer, nor has he filed any bond with the county court, or rendered any account in writing to any county official of any property sold by him at auction; that he employs such help as he considers necessary, and that some of said employees auction goods for him; and that he pays the city $100 occupation tax, and $300 for the privilege of selling at auction annually. Under the above facts the court found for appellee, and entered judgment accordingly. The statute provides, § 630, C. & M. Digest, that: “No person shall exercise the trade or business of a public auctioneer, by selling any goods or other property subject to duty under this law, without a, license, to be issued according to law.” It will be noticed that the word “public” precedes the word “auctioneer” in this section, and nowhere else in the subsequent sections of the statute does this word “public” appear. It was put there by the Legislature for a purpose, and, in determining what this purpose was, as said in Bullion v. Ætna Insurance Company, 151 Ark. 519, 525, 237 S. W. 716: “We conceive it to be our duty only to ascertain the legislative intent, and this must be done by interpreting the words which the Legislature itself has employed in expressing-that intent. It is an accepted canon of construction; that ‘ where a word which has a known legal meaning is used in a statute, it must be assumed that the term is used in its legal sense, in the absence of an indication of a contrary intent.’ 26 A. & E. Enc. of Law (2d ed.) 607.” And in St. L. I. M. & S. R. Co. v. State, 102 Ark. 205, 143 S. W. 913, this court said: “In determining what the meaning of these words (‘division point’) is, we must look to see what is the usual and ordinary interpretation given to them by those using them, and also to consider them in reference to the subject-matter in the mind of the Legislature, as shown by this statute.” The word “public” is here used in its adjective sense. It is an adjective, and modifies and limits the word ‘ ‘ auctioneer. ’ ’ It defines the kind of auctioneer who must obtain a license. It is descriptive of the person, and not his business. A number of definitions of “auctioneer” may be found in Words and Phrases, 1st ed., but the substance of all of them is that an auctioneer is a person who sells property at auction. But the word “public” in our statute, as applied to the word “auctioneer,” means something more. It means just what it says, that is, a public auctioneer is a person who holds himself out to the public as being willing and ready to sell property at auction. It has the same meaning as the word “public’ ’ as applied to accountant, or stenographer — those who are willing to sell their services to the public in their particular line of business. A person might be an expert accountant, and yet do no business for the public, nor hold himself out to the public as being ready to serve it. Certainly such a person would not be a public accountant. The Legislature evidently intended to require all persons who engage in the business of selling property for others at auction, that is, for the public, to obtain a license. All the cases cited by counsel for appellant construe statutes and city ordinances wholly different from ours. Biddles v. Enright, 239 N. Y. 354, 146 N. E. 625, deals with a city ordinance of the city of New York prohibiting sales at public auction except in the daytime. The ordinance was sustained. In Fretwell v. City of Troy, 18 Kan. 271, the court had under consideration an ordinance of the city of Troy providing that, “before any person shall' proceed to sell at public auction * * * he shall obtain a license. ’ ’ The court sustained the ordinance. So, in the city of Hot Springs appellee is required to and does pay an annual license fee of $300. In City of Goshen v. Kern, 63 Ind. 468, 30 Am. Rep. 234, the court held an ordinance of the city valid which provided that “any person who shall exercise, within said city, the business of an auctioneer * * * without having first obtained a license, * * * shall be fined,” etc. Also in Chicago v. Ornstein, 323 Ill. 258, 154 N. E. 100, 52 A. L. R. 489, an ordinance of the city of 'Chicago was held valid which required auctioneers to be licensed, and which defined an auctioneer as one “who sells goods at public auction for another or for himself.” We do not consider these cases as being in point. Our statute deals with “public auctioneers,” and not merely “auctioneers,” or persons who sell goods, wares, and merchandise at public auction. Appellee sells his own goods, in his own place of business, at auction. He employs others to assist him. He does not sell for others, nor does he hold himself out to the public as ready and willing to do so. Applying the rules of construction above stated, we think the appellee is not a “public auctioneer” and is not required to comply with the statute referred to. Affirmed.