Agents of insurance companies located within the United States are not commercial brokers. Foreign agents are taxable under section 85. (Com'r Boutw., N. Y. Trans., Oct. 30, '62.) Under the amendment of March 3, 1863, "insurance agents" are liable to license duty.

See BROKERS (INSURANCE), infra.

Agents of foreign insurance companies are made subject. to the same taxation, and are required to render the same quarterly returns as domestic companies, under section 85. See INSURANCE COMPANIES, infra.

Bankers.-Agents for the sale of merchandise, for account of producers or manufacturers, are not the bankers of their principals, within the meaning of the act, so as to require a banker's license. (§ 64, subd. 1.)

Transportation agents, and house and real estate agents are liable to license as commercial brokers.

See BROKERS (COMMERCIAL), infra.

What classes of agents are to be regarded as peddlers, see PEDDLERS, infra.

What agents are dealers, see DEALERS, infra.

ALCOHOL.

Alcohol, made or manufactured of spirits or materials upon which the duties have already been paid, is not a manufacture, within section 75, subject to a tax. (§ 75.)

Where, however, it is manufactured from spirits distilled before the act went into effect, and on which a tax has not been paid, it is subject to a duty of three per cent, ad valorem. (Com'r Boutw., Decis. No. 17.)

Makers of alcohol require a license.
See DEALERS; MANUFACTURERS, infra.

APOTHECARIES.
[License fee, $10.]

Apothecaries whose annual gross receipts exceed $1,000 are required to pay $10 for a license. (§§ 64, 65.)

Defined.-Every person is regarded an apothecary who keeps a shop where medicines are compounded and sold according to prescriptions of physicians. But wholesale and retail dealers, who have taken out a license as such, require no license as apothecaries. (§ 64, subd. 28.)

An apothecary is not required to obtain a second license as a retailer of liquors, as to wines or spirits which he may use exclusively in the preparation of medicines. (§ 66.)

Spirituous liquors of any kind can be used by an apothecary only in the preparation of medicines. When sold otherwise, he will be required to take out a license as a dealer. (Com'r Boutw., Decis. No. 18.)

Alcohol may be sold by regularly licensed apothecaries without a retail liquor-dealer's license. (Act of March 3, '63, § 1, p. 250.)

A physician who keeps on hand medicines, solely for the purpose of making up his own prescriptions for his own patients, does not require a license as an apothecary. (§ 66.)

urgic

An apothecary may prescribe remedies, or perform surgical operations, without a license as a physician or surgeon. (§ 64, subd. 32.)

Whether an apothecary selling fancy articles requires a dealer's license, see DEALERS, infra.

ARCHITECTS AND CIVIL ENGINEERS.

[License fee, $10.]

Defined. Every person whose business it is to plan, design, or superintend the construction of buildings, or ships, or of roads or bridges, or canals or railroads, is regarded an architect or civil engineer under the act, and is subject to a license duty of $10. But this does not include practical carpenters who labor on buildings. (§ 64, subd. 34, as amended, p. 251.)

AUCTIONEERS.

[License fee, $20.]

Defined. Every person is deemed an auctioneer whose occupation it is to offer property for sale to the highest bidder. (8 64, subd. 2.)

Cannot sell at private sale.-An auctioneer cannot, by virtue of his license as such, sell at private sale, without taking out a dealer's license; and for so doing, he is liable to the same penalty as dealers in the same goods without license,—that is, three times the amount of such dealer's license fee (§ 62). Auctioneers having paid the private-sale license, are not required to pay the auction duty on goods sold at private sale. (Com'r Boutw., N. Y. Trans., Oct. 30, '62.)

For licensed trader.-An auctioneer may sell for a licensed trader, on the trader's duly entered house or premises, without taking out a separate license for each sale (§ 62). But it is the duty of the auctioneer to inquire whether the trader is duly licensed, before selling at his place. For selling the goods of an unlicensed trader at the trader's place, he is liable to the penalty for selling without license-i. e., three times the amount of his license fee, $60. (Com'r Boutw., Decis. No. 27.) He may sell at his own place, however, the goods of any dealer; and, in selling the goods of a dealer at his own place, he need not inquire whether the dealer has a license. (Id., N. Y. Trans., Oct. 28, '62.)

The license not local.-It would seem that auctioneers and peddlers are not required to carry on their business at any one place, under their licenses. All other licenses (except auctioneers' and peddlers' and exhibition licenses) must state the place of business at which the occupation for which the license is granted is to be carried on. (§ 60.)

The commissioner has decided that an auctioneer can sell such goods as are not usually included in the stocks of dealers, wherever such goods may be situated, without special license. (Decis. No. 27.)

But by the amendatory act of March 3, 1863, an auctioneer is not permitted to sell property in any other district than that in which his license is taken out.

See note on page 298.

Judicial officers need no license.-Judicial or executive officers making auction sales by virtue of any judgment or decree of any court, and executors or administrators making sales as such, need no license. (§ 62.)

As to who are "judicial or executive officers," see AUCTION SALES, infra.

Unlicensed auctioneer.-An auction sale by one not licensed as an auctioneer, will not avoid the conveyance to an innocent purchaser. (Williston v. Morse, 10 Met. 17; Bogart v. O'Regan, 1 E. D. Smith, 590.)

For manner of obtaining a license; penalty for doing business without license; and how license may be perpetuated to successor, &c., see LICENSES IN GENERAL, infra.

As to duty and liability of auctioneers respecting the auction duty, see AUCTION SALES, infra.

AUCTION SALES.

[Duty, one-tenth of one per cent.]

1. THE DUTY.

A duty of one-tenth of one per cent is imposed upon the gross receipts of all sales of real or personal property at auction, including sales of stocks, bonds, and other securities (8 76), except as stated under EXEMPTIONS, below.

On what estimated. This duty is to be estimated upon the amount actually paid or agreed to be paid. Incumbrances existing on the property, such as mortgages, liens, &c., which are assumed by the purchaser as part of the price, are not dutiable. Only the surplus over such liens is taxed. (Com'r Boutw., N. Y. Trans., Oct. 17, '62.) An auctioneer put up an estate in three lots. The whole estate was subject to a mortgage, which, by the conditions of the sale, was to be apportioned; and the vendor undertook to indemnify the purchaser against the payment of more than the allotted share. It was held, that a sale of one of the lots for £15,000, on which the apportionment was £10,000, was a sale only of the equity of redemption for £5,000, and that therefore upon that sum only was the auction duty payable. (Rex v. Sedgwick, 2 C., M. & R. 603; 1 Tyr. & G. 94.)

2. EXEMPTIONS.

Sales by judicial or executive officers, by virtue of a judgment or decree of any court, and sales by executors or administrators, are exempt from this duty.*

Marshals, sheriffs, constables and clerks of court, as well as surrogates and other judges, are obviously judicial officers. So referees are officers of the court (Breese v. Busby, 13 How. Pr. 485); and sales by them in foreclosure and partition suits are exempt from the duty.

A receiver must also be regarded as a judicial officer. (Myrick v. Selden, 36 Barb. 15; Fessenden v. Woods, 3 Bosw. 559; Booth v. Clark, 17 How. U. S. 322; Matter of Burke, 1 Ball & B. 74.)

*The sale of bankrupts' estates are exempt from the duty in England,

Assignees' sales by auction are not exempt, unless the sale is by order of the court. (Com'r Boutw., N. Y. Trans., Nov. 8, '62.)

We presume there can be no doubt that the persons whose sales are thus exempted may employ a professional auctioneer to conduct the sale, without thereby incurring liability for the tax.

Sales for manufacturers of goods upon which the tax has already been paid, are not exempt from the auction duty. (Com'r Boutw., N. Y. Trans., Oct. 30, '62.)

3. PAYMENT OF THE DUTY.

The tax is to be paid by the auctioneer. He may, of course, reserve it out of the proceeds of the sale, or collect it from his employer by action (Brittain v. Lloyd, 14 Mees. & W. 762; Wilson v. Carey, 11 id. 368; 10 id. 641); but the Government can look to the auctioneer only.

The auctioneer may recover from his employer (the vendor), even where it was agreed between the vendor and purchaser that the latter should pay the auction duty, where it does not appear that the vendor, on the purchaser's refusal to pay the duty, declared the bidding to be void. (Wilson v. Carey, 10 Mees. & W. 641.)

Under a similar provision of the revenue act of California, passed 1857, it is held, that the action against the auctioneer for the duty is not defeated by the fact that he was not licensed as an auctioneer. (State v. Poulterer, 16 Cal. 523.) And it seems that the actual collection and receipt of the money by the auctioneer are not necessary to create his liability for the duty. The liability attaches, prima facie, upon the sale of the goods, and it is for the auctioneer to show legal excuse for not collecting the proceeds of sale. (Ib.)

A deposit by a purchaser for the auction duty may be recovered from the auctioneer on failure of vendor to make out good title; and no notice to auctioneer of the rescinding of the contract is necessary. (Duncan v. Cafe, 2 Mees. & W. 244.)

The return. Within ten days of the end of each month the auctioneer must make a return, to the assistant assessor, of the gross amount of his sales, with the amount of duty payable, and such amount to the collector of his district.

pay