Brooks v. State , 30 Ala. 513 ( 1857 )

STONE, J.

¥e propose to determine the construction of section 397 of the Code, subdivision 17, and the effect of the act amendatory thereof, approved February 7th, 1856 ; and afterwards, to apply the law to the facts of this record.

Section 397 fixes the prices of licenses to conduct various descriptions of business, from which revenue is proposed to be derived. Subdivision. 17 relates to negro-traders., brokers, or agents for the sale of slaves. ¥e apprehend no contest can arise on the meaning of the term negro-trader. If any difference of opinion exists, it must be as to the proper construction of the terms broker and agent.

These terms, broker and agent, in their most general signification, are very broad. The first embraces a class of agents of very extensive and diversified pursuits. — See Story on Agency, § 28; 1 Bouv. Law Diet. 194. The term agent has a more extended signification ; comprehending brokers, and all other persons who act for another. — 1 Bouv. Law Diet. 84-5. If we give to these expressions their general meaning, the result will be to levy a tax upon many of the pursuits of life, some of which are taxed otherwise, and others we cannot suppose were intended to be taxed!

"We think the context, and the connection in which these -words are found, determine the sense in which they were employed by the legislature. Trafile in slaves, as a business, or employment, was the subject under consideration ; and we think the language relates to nothing else. It was not intended to exact a license from the bi’okers or agents of negro-traders, by virtue of the relation they sustained to such negro-traders. Possibly, another legal principle, after noticed, will bring them under the influence of this section, at least to a limited extent. The intention was, to derive revenue from the business — the traffic — in slaves by negro-traders, brokers, (for the sale of slaves,) and all other agents for the sale of slaves. It is only those • brokers and agents who are, as such, engaged in the sale of slaves, as a business, who are provided for in the section of the Code we are considering.

It is not necessary that the sale of slaves shall constitute the entire business of such agent or broker. It is sufficient that it is with him a business, although it may be conducted in conjunction with some other pursuit or employment.

An auctioneer, as well as a broker, is a species of agent; many of his powers are very analogous to those of a broker. — See 1 Bouv. Law Diet. 141-2. They are embraced under the term agent in section 897, subdivision 17.

The statute approved February 7th, 1856, (Pamphlet Acts, 25,) had no other design, .and has no other effect, than to exempt from license and tax the sale and offer for sale of slaves, even by traders, brokers, auctioneers and agents engaged in that business, provided the slave so sold, or offered to be sold, is the property of a citizen of this State, and such citizen has owned said slave in this State for one year preceding such sale or offer to sell; and provided further, that the affidavit required by that statute is made and filed in the proper office.

It is manifest that the general auction license, which the plaintiff in error had obtained from the probate court of Mobile county, gave him no authority to sell slaves as an agent, broker, or auctioneer for the sale of slaves ; or, as we construe those words, an agent, broker, or auctioneer, engaged in the business of selling slaves. The two employments are entirely dissimilar, and are not rated alike. The price of a license to carry on the business of an auctioneer throughout the State, for one year, is twenty dollars; the license to sell slaves, or offer them for sale, ten dollars a head. ¥e concur with the counsel for the defendant in error, that as well might a licensed auctioneer claim the right to sell to the highest bidder, and without other license, ardent spirits in quantities less than one quart, as to engage in the business of selling slaves, either publicly or privately, as agent, broker, or auctioneer.

The affirmative charge given in the court below is in strict conformity with these views. The two charges asked and refused, base the defendant’s right to acquittal on the hypothetical ground that he was a licensed auctioneer, and that he sold the slaves simply as auctioneer, the owner being present, and executing the tifies. We have shown that, if the auctioneer was engaged in the business of selling slaves, the fact that he was simply acting as the agent of another affords him no protection. There was proof tending to show he was so engaged ; and under the charge, that question was submitted to the jury-

There are two phases which this question may assume, and which are not presented by this record. We propose to state them, for the purpose of saying expressly that -we do not now decide them. First, when the auctioneer is engaged in the business of selling slaves, and has no license for such sale of slaves, if the owner himself have a license, will this operate a protection of the auctioneer ? Second, when the negro-trader lias no license, and the auctioneer is not engaged in the business of selling slaves, and has no license therefor, will a sale under these circumstances, the owner being present, and the auctioneer performing no other function than to cry the slaves, constitute him a principal with the owner in violating the law ? On this last point, the doctrinéis well settled, that in States where the retail of spirituous liquors without license is prohibited, it is no defense to the seller that lie acted only as the agent of another, unless that other had a license. — Roberts v. O’Conner, 83 Maine, 496; State v. Bryant, 14 Missouri, 340; Geuing v. The State, 1 McCord, 573; Hays v. The State, 13 Mo. 246; State v. Bugbee, 22 Ver. 33; Commonwealth v. Hadley, 11 Metc. 66; Smith v. The State, 5 Humph. 163. On the other hand, in all the States where this doctrine has been asserted, no person is authorized to sell liquors at retail without first obtaining a license. In this State, all persons, except the class prohibited by the statutes above referred to, may sell slaves, either publicly or privately, without obtaining a license. "Whether an auctioneer will be excused, if he act without notice of the fact that his principal is one of a class who cannot sell without a license; or, whether he must, at his peril, see that he does not aid in an evasion or violation of the law, we decline now to decide.

There is no error in the record, and the judgment of the city court is affirmed.