DISSENTING OPINION OP
WILDER, J.It appears from the agreed facts that defendant as an agent cf the Hawaiian Fisheries Co., Ltd., a domestic corporation engaged in handling and selling on commission for a larg’e number of fishermen fish caught by such fishermen, offered for sale fish in basket lots, each basket containing from seventy to one hundred pounds, to the highest bidder among thirty-three retail dealers of fish or owners of fish tables at the fish market, no bids being received from any other persons. It is well settled that the highest bona fide bidder of those who care to bid at an auction sale is entitled to receive the goods offered for sale. As stated in Bouvier’s law dictionary, “A public sale is one made at auction to the highest bidder,” and that “an auction is a public sale of property to the highest bidder.” In this case it appears that the bidding was limited to about thirty-three persons and that bids from other persons, even if higher than any made by any one of the thirty-three, would not have been received or accepted. It follows, therefore, that this was not a sale to the highest bidder from among those who might choose to bid and consequently there was no sale at auction for which a license is necessary under the statute. The statement in Black’s law dictionary applies, namely, that “if there can be such a thing as a private auction it must be one when the property is sold to the highest bidder but only certain persons or a certain class of persons are permitted to be present or to offer bids.” The point to determine is not what the legislature actually intended but what its intention was as disclosed by the statute.
The argument made on behalf of plaintiff that the conten*657tion of defendant if upheld would only invito evasions of tho law as, for instance, an auction sale where bids are received from all persons except liackmen, is without merit, as it does not necessarily follow that in case of the instance cited, which would be simply a scheme to evade the law, the same result would be reached. In this case, notwithstanding the intimation of the majority to the contrary, there is nothing to-suggest, and the agreed facts do not permit the inference, that the method pursued in selling the fish was devised simply to evade the statute relating to the licensing of auctioneers, as it appears that defendant’s principal is at present operating under a merchandise broker’s license.
For the foregoing reasons T therefore dissent from the majority.