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--- (2) --- State Law reference— Auctioneers, Vernon's Ann. Civ. St. art. 8700.
DIVISION 1. - GENERALLY#
Sec. 26-26. - Definitions.#
The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:
New means all goods, wares and merchandise which shall have been purchased from manufacturers, jobbers or wholesalers by the person selling the same at auction, without having heretofore been exposed for sale to the public at retail.
Salvage means all goods, wares and merchandise, however secured, when the same has theretofore been exposed for sale to the public at retail by any person, provided that the property, otherwise new, shall not be classified as salvage by reason of having theretofore been offered for sale at retail by the person offering the same at auction.
Used means all goods, wares and merchandise that has theretofore at any time been sold at retail regardless of by whom.
(Code 1979, ch. 4, § 4(D))
Cross reference— Definitions generally, § 1-2.
Sec. 26-27. - Auctioneer not to substitute articles.#
No auctioneer after offering for sale and selling any articles in the manner prescribed by law, or under the provisions of this article shall thereafter substitute any article in lieu of that offered for sale and purchased by the bidder.
(Code 1979, ch. 4, § 4(G))
Sec. 26-28. - Misrepresentations.#
It shall be unlawful for any person acting as an auctioneer to make any statements which are false in any manner or which have a tendency to mislead any person present, or to make any misrepresentation whatever, or at all, as to the quality, quantity, character, present condition, value, cost, general selling price, or whether new, salvage or used, or partly so, of any property offered for disposal by auction sale.
(Code 1979, ch. 4, § 4(I))
Sec. 26-29. - By-bidders.#
It shall be unlawful for any person to act as a by-bidder, or what is commonly known as a capper or a booster at any such auction, or place where such auction is taking place, or to offer to make or to make any false bid to buy, or to pretend to buy any such article sold or offered for sale at any such auction.
(Code 1979, ch. 4, § 4(J))
Sec. 26-30. - Sale of article not shown in inventory; exception.#
It shall be unlawful for any auctioneer to offer for sale or to sell any article not shown in the inventory filed in the office of the tax assessor and collector of the city. It shall be unlawful to expose for sale, or to offer to sell or otherwise dispose of at any place where an auction sale is being held, or authorized to be held, any such article, not shown in the inventory filed in the office of the tax assessor and collector, or on inventory posted as provided in section 26-44. This section does not apply if section 26-44 has been waived under the conditions set forth in section 26-45.
(Code 1979, ch. 4, § 4(K))
Secs. 26-31—26-40. - Reserved.#
DIVISION 2. - LICENSE#
Sec. 26-41. - Required; exceptions.#
It shall be unlawful for any person, firm, association or corporation to sell, dispose of or offer for sale, in the city, at a public auction within the corporate limits of the city, any goods, wares, and merchandise, whether the same shall be their own property or whether the sale of same shall be by and through agents, or employees, or others, without first complying with the provisions of this article and obtaining a license from the tax assessor and collector of the city. This section shall not apply to judicial sales; to sales by executors or administrators, trustees, or assignees under the terms of any instrument given to secure a bona fide indebtedness granting the power of sale; nor to sales of unclaimed freight, or express, as provided by law; nor to sales by sheriffs, constables, or other officers of the state or the United States of America, as provided by law; nor to any kind of auction sale expressly authorized by the statutes of the state or the United States, or as may hereafter be authorized; nor to the sale of any livestock, agricultural products or farming tools, implements, or equipment; nor to auctioneers and associate auctioneers who are licensed under and comply with Vernon's Ann. Civ. St. art. 8700, as amended from time to time.
(Code 1979, ch. 4, § 4(A))
Sec. 26-42. - Issuance.#
Any person desiring to hold an auction sale for the sale of the goods described in this article shall make application to the assessor and collector of taxes of the city, as provided in section 26-43, and shall state in such application the residence of such person seeking to hold such auction sale for the 12 months next preceding the filing of such application and the period of days such person desires to hold the auction sale. The assessor and collector of taxes of the city shall issue to such person a license for the period of time designated, upon the compliance by such person with the terms of this article; provided, however, that no such license shall be issued for a period longer than one year.
(Code 1979, ch. 4, § 4(B))
Sec. 26-43. - Application.#
The application for a license shall be in writing and sworn to, stating the name of the applicant, his residence, and his residences for the 12 months next preceding the filing of this application, the street and number of the proposed place of sale, the length of time for which the license is desired, whether or not the applicant has previously conducted sales within the city or elsewhere engaged in a like or similar business, either with or without sales at auction, and shall designate the places and length of time such sales were conducted.
(Code 1979, ch. 4, § 4(C))
Sec. 26-44. - Inventory of goods offered for sale to be attached to application.#
(a)
The application for a license shall have attached to it a sworn inventory of the stock of merchandise or goods to be offered for sale, setting out the quality, quantity, kind or grade of each item. Such inventory shall also designate the character of the merchandise offered for sale as new, salvage, or used. To such inventory there shall be attached an affidavit that such inventory is in all respects true and correct, and, in the case of an individual, such affidavit shall be made by him as such; in the case of a firm or association, it shall be made by one of the partners or members; and in the case of a corporation, it shall be made by its president, general manager, secretary or treasurer.
(b)
Such inventory and affidavit when so made shall be kept on file in the office of the tax assessor and collector of the city as a part of the public records. No merchandise shall be sold at such auction sale except that referred to and included in the inventory which inventory and affidavit thereto are specifically made a part of the application for license. Such inventory shall also be posted at the city office, county courthouse and the place where the auction is to be held for a period of time not less than one week prior to opening date of sale or to date on which such merchandise is offered for sale.
(c)
Whenever any extension of time covered by any license granted under this article is sought, and no new or additional merchandise is to be sold during such extension, other than that covered by the inventory theretofore filed, such license shall be issued upon the payment of the license fee, if any, provided in this division for such period of time. Should the licensee desire to sell any new or additional goods, wares, or merchandise not included in the original inventory, such application shall be accompanied by an inventory covering such additional merchandise in the same manner and form as is provided for in the original application.
(Code 1979, ch. 4, § 4(D))
Sec. 26-45. - Exceptions to section 26-44.#
Section 26-44 may be waived by the council upon the applicant's showing of good cause.
(Code 1979, ch. 4, § 4(E))
Sec. 26-46. - Bond required of applicant.#
(a)
The applicant shall, before the issuance of a license, tender a bond payable to the city. Such bond shall be signed by the applicant, as principal, and by some solvent surety company authorized to do a surety bond business within the state, as surety, in the penal sum of $1,000.00, and shall be approved by the city manager, and shall be conditioned as follows: The principal thereon shall pay all losses and damages which may be lawfully claimed against him on account of any material misrepresentations of facts, or any material suppression of facts concerning the merchandise to be offered or auctioned at such sale, or caused by any violation of any of the provisions of the terms of this article. Such bond shall be made amenable to the claim or suit of any person who may sustain any loss or damage on account of any such misrepresentation, or suppression, and shall cover all auction sales of merchandise described in the inventory made, and required to be filed in the office of the tax assessor and collector of the city.
(b)
However, if the inventory requirement of section 26-44 has been waived, then such bond shall cover all auction sales held in the city by the principal license.
(c)
Any such person sustaining any loss or damage may bring suit in any court of competent jurisdiction to recover the same, and the provisions of the bond shall be construed liberally in favor of any such person on account of any loss or damage sustained by any such person, either directly or indirectly. All remedies upon or under such bond shall be in addition to and cumulative of all other remedies the parties may have at law, or in equity for recoupment of any such losses or damages. Successive recoveries may be had upon such bond without exhausting them, or in any manner discharging the same, provided that when the penal amount of the bond shall be reduced by such recoveries below $500.00, then and if an additional bond shall be filed by the licensee in such an amount as will provide a penal liability of $1,000.00.
(Code 1979, ch. 4, § 4(F))
Sec. 26-47. - Fees.#
Before any license shall be issued under this article, the applicant shall pay to the tax assessor and collector of the city a license fee, in advance, at the rate of $5.00 per day for each of the days for which sales are authorized by the license granted under this article, provided that the total license fee for any permit for any one year shall not exceed $50.00.
(Code 1979, ch. 4, § 4(H))
Sec. 26-48. - Revocation.#
After conviction in the municipal court of the city for any offenses defined by this article, the council may, in its discretion, revoke the license theretofore granted under this article, provided that, upon revocation of any such license, any license fee theretofore collected in excess of the license fee which would have been used for the period during which the auction had theretofore operated shall be refunded to such licensee.
(Code 1979, ch. 4, § 4(M))
Sec. 26-49. - Applicants heretofore licensed.#
If any person shall present an application for a license who has theretofore been the owner of a license which has been revoked by conviction of a misdemeanor under this article, the application shall be passed upon by the council, and the council shall, in its discretion, issue or deny such license for good cause shown.
(Code 1979, ch. 4, § 4(N))