
    [Philadelphia,
    December 27, 1824.]
    WOOD against The COMMONWEALTH.
    IN ERROR.
    An auctioneer, who, in addition to his registered auction store, has a separate establishment for tiie sale of household furniture, is liable to indictment under the act of the 29th of March, 1824.
    The plaintiff in error, James Wood, had been indicted in the Mayor’s Court of the city of Philadelphia, for an alleged violation of the act of assémbly of the 39th of March, 1824, (Purd. Pig. 66,) the fourth section of which enacts, that “no auctioner, in either the cities of Philadelphia or Pittsburg, shall, at the same time, have more than one house or store, for the purpose of holding an auction; and every auctioneer in the said city shall designate, in writing, such house or store, and also his partner or partners, if any, engaged with him in his said business, which said writing shall be deposited, by such auctioneer, with the recorder of deeds of the proper city whereof he is appointed; and no auctioneer shall expose to sale, by public auction or vendue, within either of the said cities, any goods, wares, or merchandise, or effects whatsoever, liable to the duty aforesaid, at any other places than in the said houses and stores respectively to be designated, as aforesaid, except goods, wares, and merchandise, which shall be sold in the original package in which they were imported, goods of persons deceased, or of persons who are bona fide declining business, household furniture, and such bulky articles as have usually beeu sold at auction in warehouses, or in the public streets or wharves, at or near the place, than in the respective houses and stores to be designated, as is hereby directed; and if any auctioneer in either of the said cities, shall enter on the execution of his office, or shall permit any person to act on his behalf, without designating bis said house or store, or his said partner or partners, if any, in the manner and form herein prescribed, or shall hold any auction at any other place than the place so designated, except for the sale of the articles hereinbefore excepted, he shall be guilty of a misdemean- or, and, on conviction, shall be fined in a sum not exceeding three hundred dollars,” &c.
    The following statement of facts was agreed to be considered as a special verdict, and sent with the reeord on a writ of error to the Supreme Court:—
    “ The defendant was, on the second day of June, 1824, lawfully commissioned as an auctioneer, and on the tenth day of June, in the year aforesaid, the defendant being an auctioneer, and having given the security required by law, did designate in writing his store for the purpose of holding an auction; and did deposit the said writing with George TV. Riter, esquire, recorder of deeds of the city and county of Philadelphia. The said defendant, as such auctioneer, on the day and year last aforesaid, had a store for the purpose of holding an auction, at the house number thirty-two, in South Front street, in the said city. And the said defendant, so being such auctioneer, on the day and year last aforesaid, at the city aforesaid, did open, establish, and have a certain other store, in the house numbered thirty-nine, South Third street, at the corner of Chesnut street, in the said city, for the purpose of holding an auction, of all kinds of household furniture, belonging to all manner of persons who might think proper to employ the said defendant as an auctioneer, as aforesaid, to sell the same; and the said defendant, as such auctioneer, on the day and year aforesaid, at the city aforesaid, and within the jurisdiction of this court, had the two above described stores, for the purpose of holding auctions, as above described, at the same time.
    “And the said defendant did enter upon the execution of his said office, and did establish and have the said last described store, for the purpose of holding an auction of all kinds of household furniture, as aforesaid, Without' designating in writing his said last mentioned store, and without depositing any such writing, as last mentioned, with the said recorder of deeds. The said last mentioned store, consisted of two large rooms in the second and third stories, rented by the defendant. The rest of the building was oc-cupid by various persons not connected with the defendant. The said store, last mentioned, rented by the defendant, was employed for no other purpose than for the sale of household furniture, as aforesaid, and for receiving and exhibiting it; and no book was kept there but a book for entering sales, which said book contained the names of articles sold, the names of the purchasers, and the prices of sales, and the names of the owners of the articles sold. The articles were generally sold for cash, and the cash was paid at the said last mentioned store, on the spot at the time. The returns of sales were always made to the clerks of the defendant, at the store number thirty-two South Front street, and no accounts were made out at the store, at the north-east corner of Third and Chesnut streets, and no money was paid by the defendant at the said last mentioned store.”
    
      After argument by Sergeant, for the plaintiff in error, and C. J. Coxe, for the commonwealth,
   the opinion of the court was delivered by

GibsoN, J.

By the act of the 29th of March, 1824, it is provided, that no auctioneer in either of the cities of Philadelphia or Pittsburg, shall, at the same time, have more than one house or auction store for the purpose of holding an auction; but that he shall designate his house or store by a writing, which is to be deposited with the recorder of deeds, in the proper city. It appears by the special verdict, that the defendant had designated his auction store, according to the provisions of the aet, but that he had .established another auction for the sale of household furniture, His case' is, therefore, clearly within the letter of the prohibition of the act. Does it fall within the letter or spirit of any of the exceptions? The law declares, that no auctioneer shall expose any dutiable goods to sale by auction, at any other place than the auction store, which he shall have designated agreeably to the provisions of the act, “except goods, wares, or merchandise, which shall be sold in the original package in which they were imported, goods of deceased persons, or of persons who are bona fide declining business, household furniture, and such bulky articles as have usually been sold at auction in warehouses, or in the public streets, or wharves at or near the place.” Now, what was the mischief intended to be remedied ? Under the laws then in force, it had been a practice with auctioneers tó introduce others into the business under their licenses, who would otherwise have had to pay for a license to the state; by which contrivance the revenue had been defrauded, and the object of the legislature in restraining the privilege of the license to a single house and store, was to cut up this practice by the roots. But the act would not have the effect intended, if, under the pretence of an exception, the license should be held to au-thorise a separate establishment for the sale of furniture. What reason is there for a separate store for furniture, that does not equally hold in favour of a separate store for goods sold in the package, or for goods of deceased persons, or of those who are bona fide declining business, or for such bulky articles as have usually been sold by auctioneers in warehouses, or on the wharves, or in the public streets? For all these equally form exceptions.

If a separate establishment for the sale of furniture were allowed, so might a separate establishment for the sale of each of these articles; and thus, instead of one auction store, as the act directs, an auctioneer might, under one license, establish two, three, four, five, or six separate and unregistered auction stores; and by means of a colourable ownership of these, put into his pocket the price of just so many licenses, which would otherwise have gone into the coffers of the state. This is the very thing which it was the main object of the legislature to prevent; and with this main object, the subordinate objects, intended to be secured by the exceptions, must not be permitted to interfere; nor need they interfere. These exceptions were made on the basis of public convenience, as regulated by the practice and the laws as they then stood. By the first section of the “ act respecting auctions and auctioneers,” passed the 2d of Jlpril, 1822, auctioneers are expressly authorised to make sale of furniture at the house of the owner; and the exception in the act under consideration, was intended to prevent an inference, by implication, that this authority had been taken away.

It is therefore a sound construction of this part of the act, to say that it goes no further than the provision in the act of 1822; nor is there any reason why it should. But, say the counsel, the owner may not choose to have his furniture sold at his own house, as he may think it more eligible to send it to an auction mart, where it may naturally be expected to command a better price, on account of the concourse of buyers who usually attend at such places. Be it so. But then why not send it to the store which the auctioneer has. registered, on taking out his license ? The exception was intended to be for the benefit of those, who did not choose to send their furniture to any auction store; not for the benefit of the auctioneer. It is no answer to say, that his store may be constructed exclusively for the sale of other articles, and consequently be without the capacity of exhibiting furniture, with convenience or to advantage. If an auctioneer will have the benefit of a store for the sale of furniture, as well as of articles of another kind, it is his business to procure a building adapted to the purpose; and that he has not done so, furnishes no reason why he should be indulged with a separate establishment, at the risk of injury to the public. It is clear, then, that the defendant has violated the law; and it is as clear, that for this violation he is punishable by indictment. Where an act is not an offence at the common law, but is made so by a statute, which contains a substantial prohibitory clause, it is punishable by indictment, even though a particular remedy be af-terwards pointed out. For these reasons, wc are of opinion, that the judgment of the court below be affirmed.

Judgment affirmed.  