State of California v. Poulterer

Full title: THE STATE OF CALIFORNIA v. POULTERER [*]

Court: Supreme Court of California

Date published: Oct 1, 1860

16 Cal. 515 (Cal. 1860)

Opinion

16 Cal. 515 THE STATE OF CALIFORNIA v. POULTERER ^* Supreme Court of California October, 1860

[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]          16 Cal. 515 at 532.

         Original Opinion of October 1860, Reported at: 16 Cal. 515.

         JUDGES: On petition for rehearing, Baldwin, J. delivered the opinion of the Court. Field, C. J. and Cope, J. concurring.

         OPINION

         BALDWIN, Judge

         On petition for rehearing, Baldwin, J. delivered the opinion of the Court--Field, C. J. and Cope, J. concurring.          We have examined the able argument of the counsel for the respondent upon petition for a rehearing. But we are not convinced that the opinion reviewed is, in any substantial manner, erroneous. We have not decided that the auctioneer is responsible for the tax, if he has been prevented, after the exercise of all proper and legal diligence as the agent of the State, in collecting or securing it. That question did not necessarily arise on the case before us. He was charged with the duty of collecting this tax, and it is to be presumed as the goods to be sold by him, are placed in his hands, and are sold by him that he has received the proceeds of the sale. If, however, from any cause, not attributable to the negligence on the part of the auctioneer, the proceeds of the sale of the goods could not be or were not collected, this would present a different case from that in this record. Prima facie, the auctioneer, being charged by law with a certain per centage on the amount of sales made by him, is responsible for the tax due the State; for it is his duty to retain and to pay over to the State this tax. It rests with him to show in answer to his responsibility, that from some legal and allow able cause he has not collected or been able to collect this tax. In this case, no such excuse appears, and we cannot presume that it exists. The auctioneer, when it appears that he has sold goods, as such, is chargeable with the tax. It is to be presumed he has retained it, as it is his plain duty to do. If he has failed in that duty, he is responsible; and if from any cause he is excusable for not doing his duty, he is bound to show why he has failed to discharge it.

         We deny the petition.