
    THE STATE vs. LEE & NORTON.
    [APPLICATION TO COMMISSIONERS' COURT FOR CORRECTION OF TAX ASSESSMENT.]
    1. Tax on auction sales. — ike tax imposed bylaw on tbe gross amount of auction sales, (Code, § 391, subd.-17,) is-to be assessed against and- • paid by tbe auctioneer, and not* by .'the owner of tbe property sold.
    Appeal" from the.Uircuit Cdu-rfriof-sMontgomery. -
    Tried before the-Hofli-N¿P.--Uc5oK.'
    The appellees hi this case, who were licensed auctioneers-’ in the city and county of* Montgomery,- applied to the com- • missioners* 'court of’said'county; at1 its April terra,* 1861, for! an amendment and correction’of the taxes assessed against them for tbe tax year ending on the 1st of March,--. 1860 ; alleging in their petition, that, during said tax year, they; had sold at auction in said city real estate belonging to divers persons, tbe proceeds of which sales amounted in thfe'aggregate to $43,742 50, and that tbe county assessor had5' assessed against them a tax of one per cent, on tbe gross amount of said sales; which tax, as they insisted, ought to have been assessed against the several owners of said real estate, who were shown to be resident citizens of said county. The commissioners’ court held the assessment correct, and refused to make the proposed amendment ; and the appellees then removed the proceedings, by certiorari, into the circuit court. The circuit court overruled a demurrer to the petition, reversed the judgment of the commissioners’ court, and ordered the assessment to be amended as asked by the petitioners. Exceptions were reserved on the part of the State to these several rulings of the circuit court, and they are here assigned as error.
    M. A. Baldwin, Attorney-Gleneral, for the State.
    Jno. A. Elmqre, contra.
    
   STONE, J.

Section 391 of the Code declares, that “Taxes are tó be assessed by the assessor in each county, on and from the following subjects, and at the following rates* * * * ■ Subd. “17. On the gross amount of all auction- sales made in; or during the tax year preceding the assessment, except cargo sales of foreign imports, those mad© by executors, administrators and gua'rdians, as such, by order of court,’ or under legal process, and under any deed, will or mortgage $ on every hundred dollars, and at that rate, one dollar.”'’

The present record raises the question, whether this tax of one per cent, is to be paid by the auctioneer, or by the owner of the property sold. Wé hold that the auctioneer is the party who must pay this-tax, for the following reasons : Section-392 o#.the Code -declares;,' that ■ “All persons engaged in any business or pursuit, the-receipt^sales, com-missions of which,-.or capital-''employed, are- subject to assessment-under the precedingrsection*, must keep correct accounts of--the same for the taxi year preceding such assessments, and’qxhibit the results of the same to the tax-collector, verified by oath.”' We suppose this is a verbal inaccuracy, and thai?-the meaningisj-Jihat it shall be- exkibited to the tax-assessor. Thus construed, it would seem to contemplate that the subjects of taxation should be rendered in by the auctioneer. It is difficult to conceive why taxables should be rendered in by one person, and the ■assessments made against another. But section 410, subdivision 3, is still more explicit. -It declares, that assessments are to be made “on all sales'..and purchases subject to taxation, to the person makingithe same, or his agent, in the county in which such sales or .purchases are made.” In addition to these plain indications in tire statutes, we can well conceive of a legislative policy-which would select a resident auctioneer, rather than a .possibly non-resident proprietor, from whom to collect the assessments on auction sales. This policy, we think, was carried into the legislation.

The judgment of the circuit court is reversed; and this court, proceeding to render such judgment .as the circuit court should have rendered, doth hereby order and adjudge, that the petition of the appellees, Messrs. Lee & Norton, be dismissed,-at their costs, in the circuit •court and in this court.  