
    The People, Resp’ts, v. John C. Wilherding, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed January 17, 1893.)
    
    1. Auctioneers—Duties on sale or imported goods.
    Subsequent to 1868 there was no statute of this state providing for the payment of the duties or fees upon sales of merchandise at auction, as the repeal of chap. 547 of the Laws of 1866 by chap. 106 of the Laws of 1868 did not revive chap. 62 of the Laws of 1846.
    3. Same—Payment under protest.
    Although payments of such duties were made under protest, they cannot be recovered back where there was no coercion and the payments were purely voluntary.
    Appeal from judgment of the supreme court, general term, first department, in favor of plaintiff, entered upon an agreed state of facts.
    
      Daniel P. Hays, for app’lt; W A. Poste, for resp’t.
    
      
       Reversing 42 St. Rep., 139.
    
   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 accrued 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 The defendant asserted that the act under which the duties were claimed had been repealed before the duties were alleged to have accrued.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 merchaudise 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 importer’s 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 R. S., 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 forty 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, chap. 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 § 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 1 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 1 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. Greenbush, 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, chap. 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 aménding 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 itself repealed, the repealing act as effectually annihilated the earlier act which was amended as if it had been expressly mentioned in such repealing act.

It thus appears that the enactment of the later statute of 1866, by reason of the language used in the first section thereof, did thereby incorporate into it all the life and force of the first section of the act of 1846, so that the later act stood from that time and as to all future cases as the sole and only exponent of legislative intent and power upon the subject, and such act thereby utterly blotted out and annihilated the earlier statute, except as to rights or duties already existing. And when the act of 1866 was itself repealed in clear and direct language by the act of 1868, the latter act not only by repealing annihilated the act of 1866, but also the first section of the act of 1846, as if such first section had been mentioned in the repealing act. This is expressly decided by the case above cited. And it did so upon the principle that the first section of the act of 1846, by reason of its amendment in 1866, and its incorporation in that act, lost all separate existence, and must, therefore, stand or fall, live or die, with the act of which it had become an integral part, and if that act were repealed, such repeal could not thereby revive the first section of the act of 1846, because it had no existence and had had none since the enactment of the act of 1866.

In repealing the later act it is the same (so far as regards the prior act) as if such later act were the only one which had ever existed upon the subject, and the prior one could no more spring into life simply by reason of such repeal than if such prior act had never been passed. The mere legislative intent of the act of 1868 (assuming it to exist) could not revive the first section of the act of 1846 without something in the nature of an enactment to that effect.

There is nothing in the case of Matter of Rochester Water Works Com’rs, 66 N. Y., 415, which is at all inconsistent with the views herein expressed. The opinion therein was written by the same learned judge who subsequently wrote in the Peoples. Supervisors, and there is no inconsistency between the two. In the Rochester case the later statute which amended § 23 of the earlier statute “ so as to read as follows,” did in truth enact an entirely new section, leaving wholly out of it the original twenty-third section of the earlier act. From a perusal of the two acts and the powers granted therein the court felt sure that the legislature, by amending the twenty-third section of the earlier act in the manner stated in the later one, did not intend to repeal the earlier twenty-third section, and in truth did intend to incorporate its text into the amended section so that it should all read as one section, and thus the original section was to be continued in force. This intent was said to be made more apparent by reference to the fact that the same legislature which passed the amendatory statute, and but five days subsequent thereto, re-enacted § 23 of the earlier statute with § 23 of the amendatory act added to it.

The amendment was accomplished in the same form as the first amendment (as is stated by the court), by enacting that the original section should be “ amended so as to read as follows

Taking all the facts into consideration, the court held that it was plain the legislature, by the first amendment of the original section, did not intend to thereby repeal such original section, and giving effect to the legislative intent, the court held that such original twenty-third section was not repealed by the passage of the later amendatory act.

Applying this principle to the case in hand, the inquiry would be as to the intent of the legislature of 1866, in passing the act which, among other things, amended the first section of the act of 1846. Did that legislature intend that the first section of the act of 1846 should no longer, and as to all future matters, continue in force other than as it was re-enacted, and formed a part of the body of the section in the act of 1866 ? To that question there can be but one answer, and that is, that the legislature most undoubtedly meant by the passage of the act of 1866 to wipe out for the future, and to utterly destroy the first section of the act of 1846 ; and it is perfectly clear that such intention was carried out. Having thus, by the amendment of 1866, accomplished the total annihilation of the first section of the act of 1846, as to all matters subsequently arising the case is then brought within the principle of that of People v. Supervisors, supra, and hence a mere repeal of the act of 1866, without some language equivalent to an enactment, could not revive the absolutely dead provision of the first section of the act of 1846.

The language used by the legislature of 1868 in repealing the whole of the act of 1866 is incapable of any construction other than that which the plain language of the statute calls for. It says, in so many words, that such act “is hereby repealed," and it was thereby repealed.

The case falls within the principle of the above cited case of People v. Supervisors.

How is this result altered by the claim that the legislature of 1868 supposed, when it passed the act repealing the act of 1866, that it thereby revived the first section of the act of 1846? That supposition of the legislature of 1868, assuming it to be proved by the facts to which the plaintiffs have called our attention, cannot alter the effect of the passage of the act of 1866 upon that ■of 1846. The first section of the act of 1846 was thereby and for the future wholly and effectually blotted out, and the act of 1866 remained the only act upon the subject. Is it of any materiality that in repealing the act of 1866 the legislature intended to recreate the first section of the act of 1846, and thought it had done so, as long as it used no language to acomplish such intent? There are no words of revival or enactment to be found in the act of 1868. And to say that the act of 1868 did not wholly repeal the act of 1866 is to refuse to give judicial sanction to legislative language which is so plain as to be susceptible of but one meaning. If the entire act of 1866 be repealed by the act of 1868, then the only claim that remains must be that, notwithstanding such repeal, which in itself confessedly did not revive the first section of the act of 1846, yet the legislature proceeded in the following section of the act •of 1868 to enact provisions upon other matters which it would not have done if it had supposed that the repeal oi the act of 1866 did not work a revival of the first section of the act of 1846, and, therefore, such supposition or intent to revive, even though unaccompanied by any language which could be construed as enacting such revival, must be considered as sufficient to revive the prior act. I cannot assent to this reasoning. This is not a question of mere legislative intent. A legislative intent, to work a revival of a law which already, by legislative action, has been wholly annihilated, is not alone sufficient to accomplish such revival. There must be some language used which is at least equivalent to an enactment before an act, which had become wholly extinct and blotted out, can be revived and have the breath of life again breathed into it. -

I think it clear that legislative action upon a separate subject grounded upon an assumed revivor of a prior act, which was not accomplished by the language used, cannot stand in the place of or supply language equivalent to an enactment. In other words, legislative, intent in this instance is not equal to legislative action. The fact that in 1878 the legislature passed an act which proved that it supposed that there was then some statute in existence which provided for the payment of these fees and duties, is of no moment. If the simple belief of the legislature of 1868 as to the effect of its repeal of the act of 1866 could not accomplish the reenactment of the first section of the act of 1846, it is quite certain the result was not attained by the erroneous belief of the legislature of 1878.

Again, it appears that by chap. 310 of the Laws of 1883, the . legislature proceeded to amend § 3 of chap. 547 of the Laws of 1866, “so as to read as follows,” not remembering, as it would seem, that a legislature had totally repealed the whole of that act fifteen years before by the act of 1868, already cited.

Very probably the legislature of 1883 was not familiar with the act of 1868, and it also probably believed that § 3 of the act of 1866 was in full life. The belief of the legislature of 1883, however, has not the slightest tendency to prove what was the legal effect of the action of the legislature of 1868 upon the prior statutes. That is a simple question of law. We find from an examination of the act of 1868, that the act of 1866 was plainly and in unmistakable language repealed. The fact that the legislature of 1883 treated the third section of the act of 1866 as still alive, is simply proof of a legislative error in regard to the law.

The case at bar also plainly differs from that of In re Estate of Prime, decided at this term. In that case the later act re-enacted the provisions of the former act although not in identical language. It was argued by the appellants that the later act repealed the former one and that rights which had already accrued under the former one could neither be enforced under it because of its implied repeal, nor under the later act because its provisions were prospective only.

This highly technical and refined reasoning was not sustained by the court. We held that no such consequence followed the re enactment of the statute, because there was no such repeal of the former act under these circumstances as to prevent the enforcement of rights or duties granted or imposed under it. As to all future cases the later statute would govern.

I have thus alluded to all the statuets which have seemed to me material, and by reason of these*various enactments I think that subsequent to 1868 there was no statute of this state which provided for the payment of the duties or fees upon sales of merchandise at auction and that the plaintiffs are not entitled to recover the amounts demanded by them. As to the amounts already paid by the defendant, I do not think he can recover them back even though paid under protest. There was no coercion in the case, so that the payments which defendant actually made were purely voluntary, and for that reason not to be recovered back.

The judgment must be reversed and judgment given in favor of the defendant in conformity to this opinion, with costs in all courts.

All concur, Andrews, Ch. J., and Earl, J., in result, except Maynard, J., not sitting.  