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Seanad Éireann debate -
Tuesday, 25 Mar 1947

Vol. 33 No. 16

Auctioneers and House Agents Bill, 1946—Recommittal (Resumed); and Final Stages.

The Seanad went into Committee and resumed consideration of amendment No. 2 by Senator Duffy:—
In page 3, Section 6, lines 42-43, to delete the words "or by any person authorised by him."

When the House adjourned on the last occasion, we were discussing amendment No. 2, which proposes the deletion of certain words in sub-section (2) of Section 6. I need refer only briefly to what is proposed because we discussed the matter at some length on the last occasion and also in Committee. Sub-section (1) of Section 6 provides that no person shall hold himself out as an auctioneer except in accordance with a licence to be issued to auctioneers under Section 8 or, as a house agent, except in accordance with a licence under Section 8 or a permit under Section 9. He must have a licence as an auctioneer, or, for the purpose of dealing with letting transactions, he must have a permit under Section 9. Certain persons are exempt from these obligations. The excepted persons may act as auctioneers without being in possession of a licence or they may act as house agents without being in possession of a licence or permit.

Amongst those who are exempt from the obligation to hold a licence or a permit, are rate collectors. Some doubt was expressed on the last occasion as to whether a rate collector may lawfully act as an auctioneer. I am not quite sure if that point was settled.

The point was as to whether a rate collector may lawfully appoint a deputy.

Yes, the question arose as to whether a rate collector who has seized property may lawfully appoint anyone to act as his deputy. If he may, this sub-section in paragraph (d) enables that person acting as deputy to carry on a sale or act as a house agent without a licence or permit. I do not know what is meant by that. Up to date, the discussion has been as to whether the deputy might be permitted to act as an auctioneer in the case of a seizure, but this section goes further. It contemplates that the deputy may act either as an auctioneer or a house agent without having an auctioneer's licence or a house agent's permit.

I am not raising the question in relation to the rate collector himself. If he must make a seizure and carry on an auction, I am not proposing that he should be required to have an auctioneer's licence, although I do not see why he should be permitted to act as a house agent merely because he is a rate collector. I suggest, however, that we are going too far, if we say that any person, irrespective of qualifications, appointed as a rate collector's deputy may act as a house agent or an auctioneer and I am asking the Minister to accept my proposal that these words "or by any person authorised by him" be omitted from the sub-section.

I have gone into this matter since the last day and I am inclined to accept the amendment. It is not a likely thing to happen, I am informed, and I am prepared to accept the amendment.

Amendment agreed to.

I move amendment No. 3:—

In page 4, Section 6, sub-section (2), to add a new paragraph as follows:—

(j) an auction by any person of goods belonging solely to that person.

We had a great deal of discussion on this in connection with the definition in Section 2 and I will not go over it again. There is a case for a man being allowed to do his own business. The litigant himself is just as much entitled to go in and plead his case in court as is his solicitor or barrister. Similarly, in the case of an auction, the man himself should be entitled to act. I have a sort of idea that the Minister's line of opposition will be that it would be difficult to make the section copper-fastened if this were inserted. I suggest that that is not the real difficulty. It is not the person who takes a deposit in an isolated case that we are considering, but the person who does it as a regular part of his business. If this amendment is incorporated, it would be possible in an isolated case for a person to sell as his own goods, say, the goods of Senator Crosbie, but if that happened to any great extent that would be dangerous, it would be so known everywhere that the Revenue Commissioners could not be evaded in respect of it.

We must remember that the real basis of this Bill is the protection of the public against people who receive money belonging to the public. The people cannot receive that money unless it is well known that they are carrying on an auctioneering business and if that is well known there will not be the slightest difficulty. There would be no loophole worth considering and there would not be one case in 100,000 that would get away under such an amendment, while the genuine cases would receive protection.

The Senator seems to make a case, but the people who have to administer this say it would be practically impossible to prevent people availing of that provision to sell other people's goods. I am satisfied that they have a lot of experience in that way and I do not want to leave the loophole there. In the case of furniture or works of art, it would be difficult. I do not want to be unreasonable, and do not think it is worth much of a fight about, but I do not want to put difficulties in the way of those who have to administer the Act by leaving such loopholes. A person can sell his own goods, of course, but this is a question of an auction. I admit that the Senator's case is hard to answer, but when it comes to administration it is very difficult.

This is tied up with the discussion we had and included the question of the old clothes man in the fair.

We will have the same people operating this, the Revenue Commissioners, and I am satisfied they will not be unreasonable. I ask the Senator not to press it.

There is a little more in it than that. I am not suggesting that anyone, even the Revenue Commissioners, will be unreasonable. I dislike immensely—and I think the Minister will whole-heartedly agree with me—putting a section into the Bill by virtue of which certain people are going to commit an offence, and then our defence for doing that is that the Revenue Commissioners will not be stringent in their enforcement of the section. I am not suggesting that they will be stringent in enforcing it, but as the Bill stands at present it is quite clear, from all the discussions we have had, that the hawker in the fair selling clothes will be breaking the law. I quite agree with the Minister that he will not be prosecuted by the Revenue Commissioners, unless there is some change in practice, but even on the Minister's own standing, it is a bad thing to have a law there which is being broken in any respect.

I suggest to the Minister that what is going to happen in respect to this is quite clear. I can stand up and sell goods—that cannot happen in respect of a house because the title has to be shown—but I can stand up and sell furniture. The Minister is worried whether I might be selling my own furniture or selling his. I want to suggest to him that, though I might get away once with it if I were to attempt to sell somebody else's furniture, there would be no chance of doing so a second or a third time. It is about the person who receives deposits as a general practice in respect of furniture auctions that the Minister is worried. I do not think he is very much worried about the person who only sells furniture now and again. I wonder would I be correct in saying that the real objection set out in the Minister's brief is this: that the Revenue Commissioners might lose some of their licence fees? I wonder would that be a very unworthy suggestion to make?

That is not the objection.

Assuming that the objection is that which appears on its face value, I do not think the Minister is giving away anything or leaving any loophole by accepting the amendment.

Since the Senator's arguments are so good in support of the amendment, I cannot see my way to resist it.

Does this mean that an owner of goods can stand up and auction them because they are his own? If that is so, it is not the law at present.

It is clear, I think, that if a person were to do that he would very soon have the auctioneers getting after him.

That is the point, that if it is done more than once the people concerned will be after them.

Amendment agreed to.
Sections 11 to 14, inclusive, agreed to.
Government amendment No. 4:—
In page 7, line 58, and page 8, line 1, Section 15 (1), to delete the words "in the course of or in relation to the business of auctioneer or house agent carried on by him" and substitute the words "as a licensed auctioneer or licensed house agent in relation to the receipt or payment of money or the safe custody of property".

This amendment, and the next one, are designed to meet points that were raised on the Committee Stage. Under the section, as it stood, it might be possible for a person to get a decree in respect of something that had nothing whatever to do with the business of an auctioneer, and have that met out of the deposit. This amendment makes it clear that that cannot be done.

The point of the amendment is that it restricts the deposit purely to the making good of defalcations. I think that is the right view to take. I am not quite happy about the words in the amendment, "receipt or payment of money". I understand, of course, that this is in respect of moneys received, but what the significance of the word "payment" is I do not understand. Is it to cover a case where an auctioneer purports to vouch his accounts by producing a receipt for a payment made by him while, in fact, that payment was not made at all?

When the auctioneer receives the money he has to pay it out to somebody. That is why the word "payment" is inserted.

Amendment agreed to.
Government amendment No. 4a:
In page 8, lines 14 and 15, Section 15 (2), to delete the words "in the course of or in relation to the business of auctioneer or house agent carried on by him" and substitute the words "as a licensed auctioneer or licensed house agent in relation to the receipt or payment of money or the safe custody of property".

This is consequential on the preceding amendment.

Amendment agreed to.
Sections 15 to 18, inclusive, agreed to.
Government amendment No. 5:
In page 10, lines 4 and 5, Section 19 (1) to delete the words "or within the next seven days" and in line 6 to insert at the end of the sub-section the words "or within the next seven days, produce and show such a licence or permit to any officer of customs and excise at a customs and excise office to be named by such person at the time when the said request is made".

This amendment makes provision for an auctioneer to show his licence in some place other than where he has held the auction. The auction may have been held down the country, but he can elect to show it in some place named by himself. Senator Duffy raised this point on the last occasion.

The Minister's amendment, and a later amendment of mine, are closely linked together. The Minister is meeting in this amendment a point that I raised on the Committee Stage. Senators will remember that we discussed the case of a revenue officer challenging an auctioneer to produce his licence. The section, as it then stood, required that the auctioneer should then and there produce it, or, failing to do so, should produce it in that particular place within seven days. It was pointed out that that would make the administration of the section difficult: that it would be very unfair to an auctioneer who forgot to carry his licence with him if, in such an eventuality, he had to travel from Dublin to Sligo or to Ballyshannon within the seven days, and there produce his licence. The Minister is meeting that by permitting the auctioneer to produce the licence within seven days at a place named by himself. The only other point that arises is the amount of the penalty where these conditions are not complied with. As I have said, I think the Minister has met the case fairly in this amendment.

Amendment agreed to.

I move amendment No. 6:—

In page 10, Section 19, line 12, to delete the word "fifty" and substitute the word "ten".

I described on the last amendment what happens if the licence is not produced. This amendment deals with the penalty for failure to produce it. If the licence is not produced within the seven days the auctioneer is liable to a penalty of £50.

It is not a question of £50 being the maximum penalty. It is an excise penalty from which there is no departure. I think it is an excessive penalty. I agree that in normal circumstances there is no reason why an auctioneer should not produce his licence within seven days to a revenue officer at a venue named. I can see circumstances, however, where this may be difficult. A man, for instance, is conducting an auction in Letterkenny, after travelling down from Dublin. A snowstorm intervenes and he may not be in the position of being able to get back to Dublin to produce his licence within the seven days. In this case a penalty of £50 seems to me to be excessive. The answer will be that the Revenue Commissioners will not press for the full £50 but I do not think that we should be put in the position of having to leave it to the mercy of the Revenue Commissioners as to whether they want the £50 or not. I want to suggest to the Minister that a £10 fine would be adequate punishment in the case. There is no question of evading the law in so far as a licence is concerned. This section deals with an auctioneer who has got a licence and who fails to produce it when demanded to do so by a revenue officer. I think that in the circumstances the Minister should be satisfied with the penalty of £10.

Would the Minister not consider inserting "an excise penalty not exceeding £50"? The Minister has already taken a line against the Revenue Commissioners this afternoon and perhaps we might persuade him to do the same again.

I want to point out again that this is a much more moderate provision than in the original Act. The penalty in the original Act was £10 and the person was liable to immediate arrest if he did not pay it. The amendment was inserted in the Dáil. If the person was able to show that he could not produce it because of a snowstorm I think there would be no doubt about those circumstances being beyond his control.

The Earl of Longford

Might it not be a solution of the difficulty to change this to 14 days instead of seven days?

Is this really not a penalty for not having a licence?

Yes. Of course he may have it and not show it.

I am not an auctioneer but I do drive a motor car and if I meet a Garda in the country and I have not my licence with me I can produce it at Terenure Garda Barracks within five or six days and I suffer no penalty. If I am going away for 14 days or so, it does not matter so long as I can produce the licence within the time specified. Technically, in law, I am supposed to have the licence with me but if I do not have it with me and I produce it at a Garda station within the time specified I suffer no penalty. This means that if an auctioneer has a licence he should be able to produce it within seven days at a Garda barracks. Of course, if, by an Act of God, he is held up for 15 days the circumstances are most unusual and they are beyond his control.

In the case of wireless licence defaulters, the justice invariably dismisses the cases if the licences are taken out after the persons are brought to court. In this case, if a man shows that he has got a licence he would not be in the same position as the person who takes out a licence after he is asked to produce it. I take it that this section means that if he cannot produce his licence within seven days he has not got it.

That is so. I would not mind making it 14 days if it was necessary. If the court is satisfied that the man could not produce it within the seven days because of circumstances beyond his control that will be the end of it. It is really not worth fighting about.

I am frightened at this idea of inserting a £50 fine.

Well, this came from the other House; not from me and naturally I am reluctant to go back on it if I have not very good reasons for doing so.

Very well, I will not press the amendment.

According to the words of the particular sub-section a person is authorised to conduct an auction if he has a licence. Therefore, if an auctioneer has a licence, even though in fact he does not produce it, he cannot be fined at all. Therefore, from the Minister's point of view, this section is entirely defective.

It suits me any way. I am not in favour of punishing people too much.

Amendment, by leave, withdrawn.
Section 19 agreed to.

I move amendment No. 7:—

In page 10, Section 20, line 28, to delete the word "twenty" and substitute the word "ten".

This deals with the same point.

It is not quite the same point; it is for failure to display a card. The first sub-section provided that a person holding an auctioneer's licence shall throughout the auction display in a conspicuous position at the place where the auction is held a placard bearing certain information. The sub-section, however, will not apply to auctions for which notice has been given, but it is to the penalty that I am addressing myself, an excise penalty of £20 for an auctioneer's failure to display a card. I wonder is this such a terribly serious offence? Auctioneers in the country have jobs of auctioning meadows and conacre. Usually a notice is stuck up on a telegraph pole or on a farm gate stating that on next Monday at 12 o'clock "Mr. So-and-so" will hold an auction of meadows. All the local people know about it and they come to the place where the auction is being held. The auctioneer may put up no notice whatever and probably never read this Bill or never heard of the penalties. You find people of this kind. I noticed only the other day a paragraph in the newspapers stating that a Japanese officer, captured a few days previously, did not know the war was over. I can quite imagine people in remote areas like Connemara not knowing the provisions of this Bill. An auctioneer might not understand that by not displaying this notice he is liable to an excise penalty of £20. I am suggesting that a penalty of £10 would be adequate. I am suggesting that the Minister should tell the Revenue Commissioners that he is not going to make this Bill a vehicle for imposing penalties of this kind.

I do not want to be haggling over £10. Perhaps a penalty of £10 will be a sufficient deterrent. I will accept this amendment. I simply do not want to make it easy for people to break the regulations. I will accept this.

Amendment agreed to.
Section 20 and remaining sections agreed to.
Bill ordered to be reported.
Bill, as amended, reported and agreed to.
Question —"That the Bill, as amended, be received for final consideration"—put and agreed to.
Question—"That the Fifth Stage be taken to-day"—put and agreed to.
Question proposed: "That the Bill do now pass."

On the Final Stage of the Bill I want to make a very few remarks. This Bill has had a very great deal of consideration in this House and it is now about to become an Act. I am afraid if anybody expects it to do a great deal they are going to be completely disappointed. It is a Bill that really does very little in the long run. The principle of it—the deposit concerned—is not, as I said on the Second Reading and as I want to repeat now, is not the complete safeguard that many people would believe.

The only safeguard there can ever be is a system of auditing the accounts and separate accounting for clients' moneys as apart from one's own money, a system by virtue of which, before an auctioneer gets a licence, he has to produce a certificate from an auditor that his accounts are in order and which would be satisfactory in my view in respect of all people who hold other people's money. Certainly it is a regulation to which I would submit gladly in respect of my own business and I think it is a regulation which should be introduced for trust moneys as a whole.

The Bill itself does not confer on the public the complete protection that some people imagine, and in fact it may even do a certain amount of harm because people may be led into believing that because of this deposit there can be nothing wrong. Of course, in fact, the deposit is only a small fraction in some cases, though in other cases it may be amply substantial. In so far as country areas are concerned, I think the Minister will agree; everybody knows everybody else and knows the strength of the various auctioneers and they are not likely to be led astray as to whether A or B is travelling well or is in low financial waters. I would seriously suggest that at some stage or other it should be considered in respect of trust moneys, that these moneys should be compulsorily kept in a trust account and that would be the best method of dealing with the whole problem.

There were some things right at the beginning of the discussion on this Bill that would invite question. I noticed in the other House that the general body of opinion seemed to be that all the auctioneers were millionaires and, for very many reasons, I was anxious to advocate what might be looked upon as the agricultural or rural outlook on this Bill. I notice where Senator Hayes said at the very beginning that he did not like to see many small men or poor men being deprived of a livelihood and where the Minister paid a very great tribute to the fact that so many auctioneers had proved solvent all down along the line. As a matter of fact, my views were well said by Senator Kingsmill Moore when he said the Bill was a step in the right direction. It is mild, and modest, as it ought to be, but there are items in it that the Minister must not be permitted to overlook.

I am succeeding to a business where four predecessors and other neighbours adjoining—or two or three of them within the past 20 years—have all failed. They all died insolvent and I was the auctioneer for bankruptcy in, I think, four of them. Usually it does seem around the city where business brings you into contact with vast figures of £10,000 or £20,000, that 5 per cent. will leave you very happy.

I grant all that, but it is a different thing where in the country districts you may start with letting lands, say, in October and carry on the lettings round the various headlands of various farms for three months. It provides cash and capital for the clients for whom you let the land and for every £10,000 or £20,000 worth of land which you let, you get a certain capital sum. Say you had £60,000 worth of land, your commission would come to something over £3,000 but you generally accept liability for the letting of £60,000 worth of land and it means discounting £60,000 worth of bills and most of that £60,000, if not all of it, will be paid out of discounted bills before the bills mature to yourself. If a shower of rain falls, it falls on £60,000 worth, and the rain that does not fall may prohibit the proper maturing of the bills that go to make up the £60,000. Singular to relate, those auctioneers who failed did not fail alone on account of their discounting bills, paying rates and rents, annuities and outgoings and making advances to clients. The bills that are due are usually well met but the clients for whom you let the land have to live and gradually and by degrees they make inroads and these inroads, especially in bad times, for the education of their families, incomings and outgoings of every sort, mean that the clients for whom you let the lands are the people who usually cause an auctioneer to fall.

It is to the cream of the country that you let the land. Very few men will come out to multiply prices three and four times over and without the occasional sale of a farm at 5 per cent. the deficiencies of an auctioneer will eventually bring him down particularly when times are bad. Hence my words will be directed to cautioning against interfering with the 5 per cent. in rural parts. Where an auctioneer is discounting a huge number of bills it is serious if he does not get the 5 per cent. The tendency has grown up for city professional men and solicitors to get considerable luck pennies from the person for whom you dispose of the land. There is a luck penny to be given to the solicitor who acts in the matter and a luck penny to the solicitor who has carriage of sale and the result is that a very serious situation exists for the auctioneer. Where you have understanding men, matters are all right. If you get a sale of a £20,000 farm, I do not say that you should grudge a "tenner" as a luck penny to a solicitor or anybody else. I do not say that one should not deal generously with these people but the Minister will understand that, when you are operating in a district where you have already dealt with five or six insolvent estates, you have to realise your responsibilities. You are sent out to "foot" an estate on which an auctioneer went down and you are going to meet, perhaps, members of the families of the men who lost their money with him. You may also have to meet the auctioneer's own family. In one case, a fortune in America was forthcoming to one of these persons some 11 years after the auctioneer had failed. Having got it, what did he do? He went around the country looking for the men to whom he had defaulted.

There are others who, in similar circumstances, would have done the same thing. But they went to their graves knowing the injustice that had been committed and having had to grin and bear it. I should like the Minister to receive, at least, a warning in connection with this matter. The views expressed by Senator Kingsmill Moore agree with mine—that it is a step in the right direction. But there should not be too much interference and reduction of small commissions. An occasional sale has to make up the deficiencies which are involved by occasional lettings. I do not ask for any decision from the Minister now. I merely want to warn him of the pitfalls that confront him.

Would I be in order in asking the Minister a question? Senator McGee alleged that certain solicitors were demanding that a luck penny should be paid to them by the auctioneer. That is, of course, a secret commission. It is illegal and, if the custom exists, it should be stamped out. Would I be in order in asking the Minister whether he sees any prospect of ensuring that, if such a practice exists, it will be prohibited in a clear and explicit way, so that there can be no doubt whatever in anybody's mind —as there is at present no doubt in the mind of any decent solicitor—that such a practice is, to use the proper term, fraudulent and dishonest?

I never heard of that custom. Senator McGee seemed to think that we were interfering with commissions. We are not making any provision as to the commission which an auctioneer gets. I agree with Senator Sweetman that this Bill will not achieve a great deal but it will, at least, ensure that persons known to be undesirable will be kept out of the business of auctioneering. A deposit is provided for to meet, to a certain extent, any defalcations that may occur.

Some people may think that it was not necessary to bring in this Bill. I think that it was necessary. It is better to have some provision to prevent people of an undesirable type from entering the auctioneering business. I repeat what I said at the beginning that, so far as the courts are concerned, the auctioneers have a very clear record. There have been only 12 cases of defalcation during the past dozen years. Of course, there may have been petty cases of which we did not hear. I think that that is a very good record. It is no harm to ensure that, so far as possible, that will continue to be the case.

The Minister will bear my point in mind when he is bringing in another Bill?

That Bill will have to do with solicitors.

Question put and agreed to.
Ordered: That the Bill, as amended, be returned to the Dáil.