DAVIDSON, PRESIDING JUDGE.
Appellant was convicted for violating what is popularly known as the Baskin-McGregor liquor bill. Among other things, that Act of the Legislature inhibits the selling of intoxicants by retail liquor dealers between the hours of twelve o'clock Saturday night and five o'clock Monday morning. The first count in the indictment charges appellant with having violated this provision of that Act. The second count in the indictment charges, in a general way, that appellant was a merchant and dealer in goods, wares and merchandise, to wit, a liquor dealer, and as such liquor dealer sold his goods on Sunday, to wit: a glass of beer to one E.E. Williams.
The evidence for the State, in substance, shows that on Sunday, the 6th day of September, somewhere about two or three o'clock in the afternoon in appellant's saloon one Walter Winner sold to E.E. Williams and others beer. The theory of the State is that Winner was the agent, clerk and employe of appellant, and as such sold the beer to these parties in appellant's place of business on said Sunday evening. These witnesses swear that Winner sold them beer on the Sunday evening and for which they paid him. Appellant testifies that he closed his business house Saturday night at 12 o'clock and until 5 o'clock Monday morning, and so far as he personally knew it was not opened for business. That somewhere about 9 or 10 o'clock Sunday morning he and his family left the place and went into a different part of the city of Houston to spend the day with relatives, and were gone four or five hours. The sale alleged occurred during his absence. He says these sales occurred, if at all, without his knowledge or consent and that he in no way authorized such sales. That he had no bartender, and that nobody but himself was authorized to sell. That he was spending the time he was absent from his place of business at his mother's and took the key to his house with him. That there was no key to the door of that part of the house where the beer was kept and sold, but that it was barred from the inside and there is a partition between the beer apartment and that portion of the house where his family resides. That Winner was taking care of his place in his absence. That he secured him simply to look after his place and keep things straight, from being stolen and carried away, and to look after his place in a general way; that Winner was without authority to open his beer apartment or sell beer. He says he did not have any beer there on tap; that it ran out about half past eleven o'clock Saturday night, and there was not a drop of beer there on Sunday as far as he knew, and that if Winner got any beer he did not know where he got it. That he himself did not get any beer for him, nor did he know whether Winner took in any money or not. That when he reached his place, after being informed of Winner's arrest, that the door was wide open and the place open to the public. That he did not know whether any beer was sold or not, as he was not there. That he did not leave Winner there to do any business. Among other things, during the examination, appellant was asked the following questions, and made replies as follows: "Q. What did you have to do with him being convicted? (referring to Winner). A. It is my place of business and I am responsible for what happens in my place of business. Q. You knew that when you left him there? A. That is why I told him not to sell anything. Q. You took a chance on that when you left him there? A. Yes, sir; I went away on Sunday lots of times and closed my place of business up and left him there. Walter Winner is a negro. He had never been working for me. I just left him there. I didn't pay him anything. He just stayed there for fun. He just stayed there because he wanted to, I reckon. My brother-in-law raised him, you know." This is perhaps a sufficient statement of the facts to bring in review the main questions in the case.
Section 19 of the Baskin-McGregor Act, Acts of Thirtieth Legislature, p. 266, reads as follows: "Every retail liquor dealer or malt liquor dealer, or other person who shall knowingly sell, give away or otherwise dispose of or suffer the same to be done, about his premises, any intoxicating liquor in any quantity, to any minor, without the written consent of the parent, master or guardian of such minor first had and obtained, or who shall have in his employ about his place of business, or who shall permit any minor to enter and loaf or remain in his place of business, shall be guilty of a misdemeanor," etc. Section 20 prescribes that "any sale, gift or other disposition of intoxicating liquors made to any minor without the permission or consent herein required or to any habitual drunkard, or on Sunday or election day by any agent, clerk or other person acting for any retail liquor dealer or retail malt dealer, or other person, shall be deemed and taken to be for all purposes of this act, as the act of such retail liquor dealer or retail malt dealer, or other person." It will be noted from the reading of these two sections that from the first the owner or principal or anybody about his premises with his knowledge and consent, etc., who shall disobey its provisions shall be punished. That section 20 undertakes to punish any agent, clerk or employe of such principal who does the inhibited things mentioned in said section 20, and also provides that the principal shall be punished for the act of the agent, clerk or employe. It is well known that section 20, above quoted, is practically the same as that known as the Missouri dram shop law. It was taken almost literally from that Act and placed in our statute. The Missouri statute reads thus: "Any sale, gift, or other disposition of intoxicating liquors made to any minor without the permission or consent herein required or to any habitual drunkard by any clerk, agent or other person acting for any dram shop keeper, druggist, merchant or other person, shall be deemed and taken to be for all the purposes of this article as the act of such dram shop keeper, druggist, merchant or other person." So, by a comparison of this quotation from the Missouri dram shop law with section 20 of the Baskin-McGregor law, insofar as the essential principles and questions involved in this case are concerned, they are practically the same. Long prior to the passage of the Baskin-McGregor law the Missouri statute had received a well settled construction by the courts of last resort of that State, and was thoroughly understood by the Legislature of Texas at the time of the adoption of the Baskin-McGregor law. In fact, it may be stated as part of the history of that law, that Mr. McGregor, a member of the Legislature, whose name appears in connection with the law, came from Missouri to Texas and was familiar with the working of what was known as the Missouri dram shop law, and was an eminent lawyer in that State, and with his knowledge of that law and the construction placed upon it, he sought to engraft, and did so successfully, these very provisions of the Missouri dram shop law upon the Texas statute. Wherever a statute has received judicial interpretation by which its terms and its words have been well settled or established as to their meaning and purpose and intent, it will be presumed that such interpretation was intended to be carried into the law when such law has been adopted by another legislative body. Munson v. Hallowell, 26 Tex. 474; Morgan v. Davenport, 60 Tex. 230 [ 60 Tex. 230]; Brothers v. Mundell, 60 Tex. 240 [ 60 Tex. 240]; Sanders v. Bridges, 67 Tex. 93. In the case of State v. McCance, 19 S.W. Rep., 648, the Missouri statute in an elaborate opinion by the Supreme Court of Missouri was held to provide a rule that where the agent, clerk or employe sold, it would only be prima facie evidence sufficient to authorize a conviction of the principal, but the decision held the statute did not provide or require or permit that such evidence would be conclusive of the guilt of the principal. It might be rebutted. In other words, the rule stated by that court was to the effect that where an agent, clerk or employe acting within the scope of his agency sold intoxicants in violation of the statute, the principal might be convicted if the case rested or stopped at that point of the evidence. In other words, it was held by this character of evidence the State had made out a prima facie case of sufficient cogency to authorize a conviction, but it was not held that such evidence would be conclusive and not subject to rebuttal. In other words, the principal would not be concluded by the mere fact that his agent or clerk or employe had sold in violation of the statute. He would have the right to meet this state of case to show want of authority on the part of the clerk to make such sale and that the sale was made in violation of his command, or without his knowledge. The decision in substance is that the principal could meet the State's prima facie case by want of knowledge on his part of the illegal act of his employe as well as by showing that he violated his authority or that the sale was not within the scope of his agency. This was a well settled construction placed upon the Missouri statute at the time of the adoption of the Baskin-McGregor law by our legislative body, and the presumption is that our legislative body adopted the Act with the purpose of giving the same effect to it here as had been given it in Missouri before its adoption here.
Again, under section 19 of the Baskin-McGregor law, knowledge is made requisite as a condition precedent to the conviction of the principal for a sale either by himself or through others. Certainly, it would not be proper to hold, nor did the Legislature intend that it should be so, that a violation of section 20 would subject the principal to punishment when the employe sold without his knowledge or authority or beyond the scope of his agency. To hold that the mere fact that the agent sold without the knowledge of the principal or without his authority or over the express inhibition would be to authorize the conviction of the principal for a thing of which he had no knowledge, that it was against his authority, and in such event to prohibit his right to defend against the sale of his clerk under such circumstances. To so hold, it occurs to us, would be directly in the face of the preceding section of the Act. Otherwise we would be met with this peculiar condition of things, that is, the principal could not be convicted under the terms of section 19 except when he knowingly sold or knowingly permitted to be sold by his agent, whereas under section 20 he would be punished for the act of his employe or agent or clerk, while he, the principal, was in perfect ignorance of the act of such employe, or even where the employe sold in absolute disobedience of his orders or authority. It has been held in Texas wherever the question has arisen that there must be some sort of complicity to render the principal guilty for the act of his agent in the absence of the principal, and it has been the settled rule in Texas that where absent parties are sought to be held guilty in misdemeanor cases, that there must be some complicity in some manner shown with the act of the party who committed the offense. Houston v. State, 13 Texas Crim. App., 595. Sections 19 and 20, supra, at this point should be construed together and made to harmonize in their purpose and intent.
If, as a matter of fact, appellant permitted Winner to open his place of business on Sunday, he would be guilty as if he himself had done so, but if Winner opened the place of business and sold beer in violation of the provisions of the law without the authority of appellant or against his orders, certainly appellant could not be held responsible for Winner's act. Appellant's testimony is to the effect that Winner was not his agent, and had no right or authority to open his place of business or sell beer. That he had employed Winner, or had him about his place only to look after and protect it in a general way from depredations during his, appellant's absence. The rule that what an agent does is the act of his principal would not apply where the relation of principal and agent is not shown; or at least to state the rule differently and more favorably to the Act of the Legislature, the relation of principal and agent would not apply where the evidence is that agency did not exist. If Winner was the agent of appellant, employed in and about the business as bartender and sold on Sunday, a prima facie case might be made against appellant by reason of these facts. If appellant's testimony shows the agency did not exist, or that the sale was made in violation of his orders, or against his authority, or even without his knowledge and consent, there would be no case. This position is well recognized as the law in Texas. See Gaiocchio v. State, 9 Texas Crim. App., 387. The rule laid down in McCance case, supra, was emphasized and reiterated in the cases of State v. McGrath, 73 Mo., 181; State v. Baker, 71 Mo., 475. The charge requested by appellant, therefore, should have been given. The question of intent or mistake of fact is not involved in this case and can not be under such state of facts.
The judgment is reversed and the cause remanded.
[Rehearing denied December 22, 1909. — Reporter.]
RAMSEY, JUDGE.
When I prepared my original dissenting opinion in this case we were in the closing hours of the last term of this court, the opinion being delivered on the day of adjournment. My treatment of the question then was necessarily hurried, and to some extent imperfect. Since then, and particularly during the summer vacation I gave the question careful consideration and investigation, such as was not possible when the question was before us in term time. I then had some little doubt as to the true construction of article 20 of the Baskin-McGregor law, which was the subject of our consideration. The most mature reflection and the most diligent investigation since then has to my mind demonstrated beyond the shadow of a doubt that my original opinion was not only intrinsically sound and correct, but that I have merely followed the law as announced by every text writer in America, and by authorities both in England and in this country practically without exception.
As stated in my original opinion, Judge Davidson rests the decision of the case on the strong ground that inasmuch as practically the same statute had heretofore received consideration in Missouri, that in adopting same it would be assumed that the Legislature of this State intended that it should receive the same construction which had prevailed in the parent State. While the general rule stated by him is undoubtedly true, it is not the invariable rule. It was held in this State as early as the case of Snoddy v. Cage, 5 Tex. 106 [ 5 Tex. 106], in a great opinion by probably the most distinguished and learned man that ever sat on any court in Texas, that "The enactment of a law in terms similar to the provisions of a statute of a foreign country, does not involve the adoption of the construction which the courts of that country may have given to the provisions of the statute." In the course of the opinion he says: "It is urged that the exception operates as well against persons coming from abroad or removing to the country, as against citizens or residents going abroad and returning after a temporary absence; and several authorities are cited, in which similar provisions in the statutes of other States and nations have received this construction. I shall not attempt an exploration of the jurisprudence of foreign nations, or States, to ascertain the points of resemblance or difference between the section, and provisions to be found in their legislation. That such interpretation of provisions nearly similar, has been sanctioned by English and American courts, is unquestionable; and as reasoning, it commends itself, by all the considerations derived from the general approbation of those pure, enlightened and august tribunals. But their expositions have not the conclusive force of authority. At the passage of this statute, Texas was an independent nation, possessing and exercising the plenary powers of sovereignty. She was subject to no laws except those emanating from her own Legislature; nor to the construction of any courts other than her own domestic tribunals. Among her other attributes of sovereignty, she still has authority to prescribe the times at which suits shall be brought, and actions barred within her own territory; and her laws for that purpose can receive their authoritative interpretation from her own courts alone. The accidental circumstance that the terms of the section in question may be similar to the provisions of foreign laws is immaterial. Many of our statutory regulations are similar to those found in the codes of other countries. Some of them are derived from the common law, others from the civil law system of jurisprudence. The expositions of many of these have been variant in different countries, and perhaps fluctuating in each of them; and at all events they can furnish no rule of action, except in the territorial limits of the State where they are made. For it can not be pretended that the exposition by a foreign court or jurisconsult, of a foreign law, can have any other force than that derived from its reason and justice. This will always be admitted and fully appreciated, although it can not be recognized as having the binding force of authority. (7 Mon. R. (Ky.), 70; Ewing v. Smith, 3 Dess. R. (S.C.), 459; Hard. R. (Ky.), 301; Reid v. Lamar, 1 Strob. Eq. R. (S.C.), 27.)"
Again, it is to be remembered that we have in this State a Penal Code complete and intended to be complete within itself. Article 10 of that Code is as follows: "Words which have their meaning specially defined shall be understood in that sense, though it be contrary to their usual meaning; and all words used in this Code, except where a word, term or phrase is specially defined, are to be taken and construed in the sense in which they are understood in common language, taking into consideration the context and subject matter relative to which they are employed." This statute has by this court been uniformly followed, and it has more than once been said that, "The courts have nothing to do with the policy, expediency, propriety or wisdom of legislative enactments, and, in the construction of statutes, they will not be governed by considerations of convenience." Engelking v. Von Wamel, 26 Tex. 469; Davis v. State, 2 Texas Crim. App., 425; Stapp v. State, 3 Texas Crim. App., 138; Albrecht v. State, 8 Texas Crim. App., 216; Thompson v. State, 17 Texas Crim. App., 253; Smith v. State, 18 Texas Crim. App., 454.
We have in this State few provisions instituting a prima facie rule of evidence, and so far as I know none instituting a prima facie rule of guilt. Our Legislature had, however, in respect to sales of intoxicating liquors in local option precincts, made and adopted one rule providing prima facie proof. With a view of ascertaining the meaning of the provision of article 20 of the Baskin-McGregor law, let us place the provision unquestionably instituting a prima facie rule of evidence in parallel columns with section 20 now under consideration:
Article 402, Acts of 1903, as Section 20, Baskin and amended, so far as applicable, McGregor law: contains this provision: "Any sale, gift or other "In prosecutions under this disposition of intoxicating article where it is proven that liquors made to any minor there is posted up at the place without the permission or where such intoxicating liquor consent herein required, or is being sold or given away to any habitual drunkard, or with the purpose of evading the on any Sunday or election day provisions of the law, United by any agent, clerk or other States internal revenue liquor person acting for any retail or malt license to anyone, it liquor dealer or retail malt shall be prima facie proof that dealer, or other person, the person to whom such license shall be deemed and taken to is issued is engaged in the be for all purposes of this sale of intoxicating liquor." Act, as the act of such retail liquor or retail malt dealer or other person."
Do these two provisions mean the same thing? Is black white? Is it conceivable that a Legislature in Texas which had before it the precedent of 1903, which in plain and unambiguous language had instituted a rule of prima facie evidence, should have found protection under the dome of the State capitol and spent probably ninety days in session to institute this same rule of prima facie evidence and found itself using the language of section 20 quoted above? If in passing the Act herein the Legislature had been without precedent and had sought for the benefit of future generations to hide away its intent from the painstaking inquirer, it could not have adopted more cryptic language to accomplish this result. The statute says that we shall in interpreting the Code construe the words in the sense in which they are understood in common language. Does the Legislature mean when it says that a sale by an agent for all the purposes of the act shall be deemed the sale of the owner, mean merely that it institutes a prima facie rule of guilt, when there is not and has never been in more than seventy years of our glorious history as a State and Republic a prima facie rule of guilt in this State or in this Republic? I do not know to what extent any court ought to be guided by authority, but it would seem that where the authorities are practically universal, where every textbook known, and where the courts of the highest repute are practically unanimous in their construction of a given statute, and this statute, according to the plain import of words of ordinary significance, has an obvious and patent meaning, that we should long hesitate to undertake to read between the lines and to engraft on the statute or deduce from it a meaning which its language does not warrant. In addition to the authorities quoted, I desire to make this quotation from McClain on Criminal Law. In section 1237, vol. 2, after discussing the rule in the absence of a statute to the contrary, he uses this language: "But in accordance with the principle heretofore discussed by which one who carries on a business which is subject to statutory regulation is held accountable for any violation of the provisions of the statute in the conduct of such business without regard to his knowledge of or consent to such violation, it has been held by many courts that an employer carrying on the business of selling liquor is responsible for violations of the statute by his employes in conducting such business, even though such violation is contrary to his express directions; and this doctrine is especially insisted on where the illegality consists in the method of doing the business and not in the business itself; for instance, where, in the course of carrying on a lawful business of selling, the clerk or servant sells to a minor or an intoxicated person, even though directly forbidden by his employer to make such sales. And this doctrine is recognized in such cases even by courts which hold that the general liability for illegal selling can not be fixed upon the principal by an unauthorized act of his agent or servant."
In the recent case of State v. Gilmore, 13 American and English Annotated Cases, p. 321, it was held that where a statute commands that an act shall be done or omitted to be done which in the absence of such statute might be done or omitted without culpability, ignorance of the fact or condition contemplated by the statute does not excuse its violation, and that a liquor dealer forbidden by statute to sell liquor to a minor is liable for a sale to a minor although the sale is made without the knowledge of the dealer by his agent who is under instructions from the dealer not to sell to minors. In that case it was said: "The question is whether the act complained of was, in law, the respondent's act when committed by his servant. The State contends that the respondent is answerable for the act in accordance with the maxim, Qui facit per alium facit per se. The respondent claims that as the sale was made without his knowledge and contrary to his instructions, the employe alone is liable. Intent is not an essential ingredient of the offense charged. State v. Tomasi, 67 Vt. 312, 31 A. 780; State v. Perkins, 42 Vt. 399; State v. Ackerly, 79 Vt. 69, 64 A. 450, 118 Am. St. Rep., 940. In Com. v. Savery, 145 Mass. 212, 13 N.E. 611, the respondent sold an intoxicating liquid by mistake; held, that his belief that it was not intoxicating was no defense. The rule is, where a statute commands that an act be done or omitted, which in the absence of such statute might be done or omitted without culpability, ignorance of the fact or state of things contemplated by the statute will not excuse its violation." In the course of the opinion it is further said:
"In State v. Kittelle, 110 N.C. 560, 15 S.E. 103, 15 L.R.A., 694, 28 Am. St. Rep., 698, the court said that the licensee is bound to know that sales are made only to proper persons, and to this end he must employ persons whom he can trust; that he puts the employe in his place and gives him authority to make sales of liquor for his benefit, and should be responsible for his employe's acts.
"In McCutcheon v. People, 69 Ill. 601, the court said it was immaterial whether the sale was made by the respondent or an agent, and that if made by an agent the presumption is conclusive that he acted within the scope of his authority. `When the agent . . . is set to do the very thing which, and which only the principal's business contemplates, namely, the dispensing of liquors to purchasers, the principal must be chargeable with the agent's violation of legal restrictions on that business. His gains are increased and he must bear the consequences. The fact that he has given orders not to sell to minors only shows a bona fide intent to obey the law, which all the authorities say is immaterial in determining guilt.' The court further reasoned that, as intent was not an ingredient in the offense, it logically followed that it was immaterial whether such orders were given or not; that he who does by another that which he can not lawfully do in person must be responsible for the agent's act; that in fact it is his act; that by setting up another to do his work while he occupies himself elsewhere he can not take the benefit of the agent's sales and escape the consequences of the agent's conduct. Noecker v. People, 91 Ill. 494, is to the same effect. This rule is held in Mogler v. State, 47 Ark. 109, 14 S.W. 473; Snider v. State, 81 Ga. 753, 7 S.E. 631, 12 Am. St. Rep., 350; Whitton v. State, 37 Miss. 379; Carroll v. State, 63 Md. 551, 3 A. 29; State v. Hartfiel, 24 Wis. 60; and doubtless in other States, the decisions of whose courts we have not examined.
"People v. Roby, 52 Mich. 577, 18 N.W. 365, 50 Am. St. Rep., 270, is cited by the court in the North Carolina case as sustaining the rule there contended for, the opinion having been delivered by Chief Justice Cooley. The case arose under a statute requiring that all saloons and other places where liquors were kept should be closed on Sunday. The respondent's saloon was opened on a Sunday morning for cleaning, when a person went in and obtained liquor of the clerk. The respondent was not present, but was in the house. The court said that the penalties of the statute were denounced against the person whose saloon was not kept closed, and that no other fact was necessary to complete the offense. There was no evidence that the respondent assented to the room being opened, or desired it, nor was there evidence to the contrary. No instruction to the clerk not to open it was shown.
"Paducah v. Jones, decided by the Court of Appeals of Kentucky, October, 1907, reported in 104 S.W. 971, is, in its facts, like the Michigan case. The action was brought by the city upon a bond given by the respondent as a license to keep a coffeehouse and sell spirituous liquors therein, conditioned that he would observe the laws of the State and the ordinances of the city, one of which prohibited the sale of liquors on Sunday. Sales were made during the licensee's absence by his bartender and the licensee was held liable on his bond. The court quoted from Judge Cooley's opinion in People v. Roby, supra, where he said: `Many statutes which are in the nature of police regulations . . . impose criminal penalties irrespective of any intent to violate them, the purpose being to require a degree of diligence for the protection of the public which shall render violation impossible.'
"The court then reasoned that if a criminal intent were necessary to constitute the offense of selling liquor on Sunday, or to a minor, or otherwise in violation of law, it would follow that the employer who had directed his clerk not to sell, or if the sale were made without his knowledge or consent, could not be criminally liable, as the criminal intent would be wanting. But in that case a police regulation had been violated, and the intent was wholly immaterial; that it was the act that the law looked at and not the intention of the perpetrator; that the character of the business carried on by the retail dealer in spirituous liquors and the temptation offered by it to violate the law render it peculiarly appropriate that the rule be applied to those engaged in the traffic. The court further said that when a person obtains a license to sell liquor, and for his own convenience and advantage employs other persons to conduct the business for him, he will be charged with responsibility for their acts and cannot shield himself upon the ground that their acts were contrary to his wishes, or in disobedience of his commands; that he assumes the risk of their acts in the business for which he employs them; that he must see to it that they do not violate the law if he would save himself from liability. The fact is emphasized that the employer has placed it within the power of his clerk to observe or disobey the law; that he has left it to his discretion and judgment. The court said that when he took his license, employed clerks, and took the benefit of their illegal sales, he could not escape liability upon the ground that he did not approve or authorize their acts; that the duty of observing the law imposed by the acceptance of the license attaches to all persons who by employment of the license conduct the business under it; that their offense is his offense; that the law looks to the person intrusted with the authority and not to the subordinates he has seen fit to employ:
"It should be stated that in most of the States where the decisions last cited were rendered the statutes differed from our own. In State v. Kittelle stress is laid by the court upon the fact that the statute of North Carolina prohibited dealers in intoxicating liquors `to sell directly or indirectly' to minors. In Illinois the language is, `any person or persons by agent or otherwise.' In Georgia the statute is that `no person, . . . by himself or another, shall sell,' etc., and in Dudley v. Sauthbine, 49 Ia., 650, 31 Am. Rep., 165, the court said that the statute expressly provided that a principal should be liable for sales made by his agent, the statute declaring it unlawful for any person, by agent or otherwise, to sell, etc. The statute of Maryland, under which the decision in Carroll v. State, was rendered, is like ours. In Wisconsin the prohibitive words are, `knowingly or wilfully' sell to minors. In West Virginia the statute under which State v. Denoon, 31 W. Va. 122, 5 S.E. 315, was decided, provides that a sale of liquor by one person for another shall be deemed to be a sale by both and that both may be indicted and fined, either jointly or separately; and the court, while admitting a diversity of decisions upon this subject, based its opinion upon the statute referred to.
"We have referred quite extensively to decisions of other courts to show the diversity of views entertained by them upon this question. In deciding this case we must consider that it was the intention of the Legislature, when it enacted the license law, to prohibit and prevent the sale of liquors to minors and drunkards, as it was the purpose of the Michigan and Kentucky Legislatures to prevent saloons being opened on Sundays. Judge Cooley said that no other fact was necessary to complete the offense than that a saloon was open on Sunday; that the licensee could not be heard to say that it was opened by his employe in his absence and without his knowledge. The act aimed at can be committed only by reason of a license having been taken by the respondent. Sections 13, 14, and 15 of the license law carefully provide for the selection of licensees in whom confidence can be placed. A licensee can not be excused from criminal liability if he sells to a minor, however great the imposition practiced upon him by the person obtaining the liquor. Then can he delegate the conduct of the business to an agent with instructions not to sell to minors or drunkards and himself escape liability if his agent violates the law? We hold that he can not. The offense is complete when such sale has been made under and by virtue of the license and in the line of the respondent's business as licensee, and it is immaterial whether the act was done by the licensee or by his employee. When he engaged in the business he assumed all the risk of his employes violating the condition of his license. Their acts were his acts when done in carrying on the licensed business."
There are many authorities which hold that a master is not criminally liable for the acts of his servants performed contrary to his instructions, although within the scope of the servant's employment; this is well settled. The courts in many jurisdictions, keeping this rule in mind, have held that in the absence of an express statutory provision to that effect, a person licensed by the State to sell intoxicating liquors is not criminally liable for illegal sales made by a servant without authority and against the positive instructions of the licensee. The following authorities in the absence of such a statute support this general rule: Patterson v. State, 21 Ala. 571; Seibert v. State, 40 Ala. 60; Daniel v. State, 149 Ala. 44, 43 So. 22; Barnes v. State, 19 Conn. 397; Pennybaker v. State, 2 Blackf. (Ind.), 484; Hipp v. State, 5 Blackf., 149, 33 Am. Dec., 463; Lauer v. State, 24 Ind. 131; Anderson v. State, 39 Ind. 553; Ihrig v. State, 40 Ind. 422; Hanson v. State, 43 Ind. 550; Wilson v. State, 19 Ind. App. 389, 46 N.E. 1050; Rosenbaum v. State, 24 Ind. App. 510, 57 N.E. 156. See also Wreidt v. State, 48 Ind. 579; Botkins v. State, 36 Ind. App. 179, 75 N.E. 298; State v. Stockman, 9 Kan. App. 888 mem., 58 P. 1006; Minden v. Silverstein, 36 La. Ann., 912; Com. v. Nichols, 10 Met. (Mass.), 259, 43 Am. Dec., 432; Com. v. Wachendorf, 141 Mass. 270, 4 N.E. 817; Com. v. Hayes, 145 Mass. 289, 14 N.E. 151; Com. v. Rooks, 150 Mass. 59, 22 N.E. 436; Com. v. Stevens, 153 Mass. 421, 26 N.E. 992, 11 L.R.A., 357, 25 Am. St. Rep., 647; Com. v. Joslin, 158 Mass. 482, 33 N.E. 653, 21 L.R.A., 449; Com. v. Stevens, 155 Mass. 295, 29 N.E. 508; Com. v. Riley, 196 Mass. 60, 81 N.E. 881, 10 L.R.A., N.S., 1122; State v. Mahoney, 23 Minn. 181; State v. Mueller, 38 Minn. 497, 38 N.W. 691; State v. Baker, 71 Mo., 475; State v. McGrath, 73 Mo., 181; State v. McCance, 110 Mo., 402, 19 S.W. 648; State v. Heinze, 45 Mo. App., 403; Moore v. State, 64 Neb., 557; State v. Corron, 73 N.H. 434, 6 Ann. Cas., 486, 62 A. 1044; People v. Utter, 44 Barb. (N.Y.), 170. See also Cullinan v. Burkhard, 93 App. Div. (N.Y.), 31, 86 N.Y.S., 1003, reversing 41 Misc. (N.Y.), 325, 84 N YS., 825; Anderson v. State, 22 Ohio St. 305; Com. v. Johnston, 2 Pa. Super., 317; Com. v. Newhard, 3 Pa. Super. 215; Com. v. Titlow, 28 Pa. Co. Ct. (N.Y.), 341. See also Zeigler v. Com., 14 A. 237; State v. Burke, 15 R.I. 324, 4 A. 761; State v. Bohles, Rice L. (S.C.), 145; State v. Williams, 3 Hill L. (S.C.), 91; Neideiser v. State, 6 Baxt. (Tenn.), 499; Gaiocchio v. State, 9 Texas App., 388; Wadsworth v. State, 35 Tex.Crim. Rep., 34 S.W. 934; Pecaria v. State, 48 Tex.Crim. Rep., 90 S.W. 42; Sweeney v. State,
49 Tex. Crim. 226, 91 S.W. 575; Holland v. State, 101 S.W. 1001; Gaddis v. State, 106 S.W. 1155. See also Gerstenkorn v. State, 38 Tex.Crim. Rep., 44 S.W. 503; Rawls v. State, 48 Tex. Crim. 622, 89 S.W. 1071; Monela v. State, 70 S.W. 548.
However, as said in the valuable note to State v. Gilmore, supra, the rule is practically universal and the reported cases hold under a statute similar to ours that a licensee is criminally liable for an illegal sale of liquor by his servant, although such sale is made contrary to the former's instructions. In numerous other jurisdictions it is said: "Statutes prohibiting the sale of liquor by a licensee under certain circumstances have been construed as including sales by a servant against instructions, and it is well settled in these jurisdictions that the licensee is bound by the acts of his agent, done not only without his authority, but in violation of his instructions, in making an illegal sale of liquor. This rule is based upon the ground that criminal intent in acts of this nature is not necessary, and further upon the ground that a man who engages in business of this nature as a licensee of the State engages in it at his peril; that he must see that the requirements of the law are rigidly complied with, and that he is responsible for any failure of his agent to comply with those requirements. This rule is firmly established in England, Canada and America, as the following cases will demonstrate: Mullens v. Collins, L.R. 9 Q.B., 292, 43 L.J.M.C., 67, 29 L.T.N.S., 838, 22 W.R., 297; Rex v. McQuarrie, 37 N. Bruns., 374; Austin v. Davis, 7 Ont. App., 478, overruling Hugill v. Merrifield, 12 U.C.C.P., 269; Reg. v. Howard, 45 U.C.Q.B., 346; Reg. v. Breen, 36 U.C.Q.B., 84. See also Reg. v. Williams, 42 U.C.Q.B., 462; Rex v. Conrod, 35 Nova Scotia, 79; Cloud v. State, 36 Ark. 151; Mogler v. State, 47 Ark. 109, 14 S.W. 473; Osborne v. State, 77 Ark. 439, 92 S.W. 406. See also Redmond v. State, 36 Ark. 58, 38 Am. Rep., 24; Wilson v. State, 64 Ark. 586, 43 S.W. 972; Beane v. State, 72 Ark. 368, 80 S.W. 573; Lehman v. District of Columbia, 19 App. Cas., 217; Loeb v. State, 75 Ga. 258; Snider v. State, 81 Ga. 753, 7 S.E. 631. See also Klug v. State, 77 Ga. 734; McCutcheon v. People, 69 Ill. 601; Noecker v. People, 91 Ill. 494; Banks v. Sullivan, 78 Ill. App. 298; compare Grosch v. Centralia, 6 Ill. App.?,? 107; Dudley v. Sautbine, 49 Iowa 650, 31 Am. Rep., 165; State v. McConnell, 90 Iowa 197, 57 N.W. 707; compare State v. Hayes, 67 Iowa 27, 24 N.W. 575; Paducah v. Jones, 104 S.W. 971, 31 Ky. L. Rep., 1203. See State v. Stewart, 31 Me. 515; State v. Brown, 31 Me. 520; State v. Wentworth, 65 Me. 234, 20 Am. Rep., 688; Carroll v. State, 63 Md. 551, 3 A. 29; People v. Blake, 52 Mich. 566, 18 N.W. 360; People v. Roby, 52 Mich. 577, 18 N.W. 365, 50 Am. Rep., 270, distinguishing People v. Hughes, 86 Mich. 180, 48 N.W. 945; People v. Kriesel, 136 Mich. 80, 98 N.W. 850; People v. Longwell, 120 Mich. 311, 79 N.W. 484, distinguishing People v. Metzger, 95 Mich. 121, 54 N.W. 639; People v. Parks, 49 Mich. 333, 13 N.W. 618; People v. Possing, 137 Mich. 303, 100 N.W. 396, 11 Detroit Leg. N., 249; Whitton v. State, 77 Miss. 379; Riley v. State, 43 Miss. 397; Gathings v. State, 44 Miss. 343; Teasdale v. State, 3 So. 245. See also Fullwood v. State, 67 Miss. 554, 7 So. 432; compare Kitrell v. State, 89 Miss. 666, 42 So. 609; State v. Kittelle, 110 N.C. 560, 15 S.E. 103; State v. Grant, 20 S.D. 164, 11 Ann. Cas., 1017, 105 N.W. 97; State v. Kinney, 113 N.W. 77; O'Donnell v. Com., 108 Va. 882, 62 S.E. 373; State v. Constantine, 43 Wn. 102, 86 P. 384, 117 Am. St. Rep., 1043; State v. Denoon, 31 W. Va. 122, 5 S.E. 315.
In support of this rule it is stated: "The reason underlying this view of the statutes is well stated by Carroll, Judge, in Paducah v. Jones, 104 S.W. 971, 31 Ky. L. Rep., 1203, as follows: `If a criminal intent was necessary to constitute the offense of selling liquor on Sunday or to a minor or without license or in violation of law, it would follow that the employer who had directed his clerk not to sell, or if the sale was made without his knowledge or consent, could not be criminally liable as the intent necessary to complete the offense would be lacking; but there are a number of statutory offenses in which the law does not inquire into the intention of the person who violates them. His intention is not taken into consideration. It is totally immaterial whether it was good or bad. It is the act constituting the offense that the law looks at and punishes. . . . Therefore, we do not hesitate to say that the employer may be proceeded against criminally for the act of his clerk or agent who, in violation of law, sells or furnishes liquor acting within the scope of his employment, and this without reference to the instruction or direction given to him by the employer. When a person obtains a license from the State to sell liquor, and for his own convenience and advantage employs other persons to conduct the business for him, he will be charged with responsibility for their acts, and can not shield himself from prosecution upon the ground that what they did was contrary to his wishes, or in disobedience of his command. He assumes the risk of their acts in the business for which he has employed them; and, if he desires to save himself harmless, must see to it that his servants while acting for him do not violate the law.'
"In Noecker v. People, 91 Ill. 494, some of the sales testified to were made by clerks of the defendant. The court rejected testimony offered by defendant as to the instructions he gave his clerks in relation to the sale of intoxicating liquors. This was assigned as error. The court held that the testimony was properly excluded, as the language of the statute was, `Whoever, by himself, clerk, or servant, shall sell,' etc., shall be liable, and hence, as the testimony was uncontradicted that the defendant kept intoxicating liquors for sale, the defendant was responsible for the selling by his clerks, no matter what might have been his instructions to them. In People v. Longwell, 120 Mich. 311, 79 N.W. 484, the defendant was convicted of selling liquor contrary to the statute. (Pub. Acts, 1889, sec. 207.) His defense was that the sale was made by his clerk contrary to his general instructions. The statute provided that `Any person who himself, or by his clerk, agent, or employe, shall violate any of the provisions,' etc. The court, citing and approving Judge Cooley's opinion in People v. Roby, 52 Mich. 577, sustained the conviction, observing that the statute in unequivocal language made the licensee responsible for the acts of his clerks in making illegal sales. In McCutcheon v. People, 69 Ill. 601, it was held that the presumption is conclusive that the servant in making the sale of intoxicating liquor acted within the scope of his authority.
"Evidence of the fact that the licensee had given directions to his agent to refuse to make illegal sales has been held to be admissible in mitigation of the punishment imposed by the law. Mogler v. State, 47 Ark. 109, 14 S.W. 473; State v. Kittelle, 110 N.C. 560, 15 S.E. 103, 15 L.R.A., 694, 28 Am. St. Rep., 698.
"The rule that the licensee is criminally liable has been applied in the cases of illegal sales made by a servant on Sunday against the consent and contrary to the instructions of the licensee. Lehman v. District of Columbia, 19 App. Cas. (D.C.), 217; Banks v. Sullivan, 78 Ill. App. 298; People v. Blake, 52 Mich. 566; People v. Roby, 52 Mich. 577, 18 N.W. 365; People v. Kriesel, 136 Mich. 80, 98 N.W. 850; People v. Lundell, 136 Mich. 303, 99 N.W. 12; People v. Possing, 137 Mich. 303, 100 N.W. 396, 11 Detroit Leg. N., 249; State v. Grant, 20 S.D. 164, 11 Ann. Cas., 1017, 105 N.W. 97; State v. Kinney (S.D.), 113 N.W. 77. See also People v. Welch, 71 Mich. 548, 39 N.W. 747; People v. Tolman, 148 Mich. 305, 111 N.W. 772.
"Likewise, the rule has been applied to sales to minors made by a servant against the instructions of the licensee. Edgar v. State, 45 Ark. 356; Mogler v. State, 47 Ark. 109, 14 S.W. 473; Loeb v. State, 75 Ga. 258; Boatright v. State, 77 Ga. 717; Johnson v. State, 83 Ga. 553, 10 S.E. 207; McCutcheon v. People, 69 Ill. 601; Carroll v. State, 63 Md. 551, 3 A. 29; Fahey v. State, 62 Miss. 402; State v. Kittelle, 110 N.C. 560, 15 S.E. 103, 15 L.R.A., 694, 24 Am. St. Rep., 698; State v. Constantine, 43 Wn. 102, 86 P. 384, 117 Am. St. Rep., 1043. See also Cloud v. State, 36 Ark. 151; Southern Express Co. v. State, 1 Ga. App. 700, 58 S.E. 67.
"In Loeb v. State, 75 Ga. 258, the court in construing the Georgia statute, said: `The act ex vi termini makes all persons connected with the sale or retailing of spirituous, intoxicating, or malt liquors responsible whenever a minor is furnished therewith, unless they have written authority from the parent or guardian of such minor, and it matters not whether the proprietor sells or furnishes the liquor directly by himself, or it is furnished by another in his employment. Whether he was present or not, or knew of the fact, or consented to it, he is, under this Act, guilty of criminal negligence, and is on that account liable to prosecution. His offense is complete, whenever it is shown that intoxicating drink was sold or furnished to a minor by anyone acting in his place of business in any capacity whatever, either as clerk, bartender, or otherwise.'
"In State v. Kittelle, 110 N.C. 560, 15 S.E. 103, 15 L.R.A., 694, 28 Am. St. Rep., 698, the statute providing that a licensee should be liable for a sale `directly or indirectly,' it was held that the licensee was liable for an authorized and forbidden sale by an agent. In the course of the opinion the court, after reviewing the decisions of other States on this question, said: `I think that the purpose of the Legislature in inserting the words `directly or indirectly' in the statute, was not needlessly to notify the people that the court would tolerate no attempts at evasion by resorting to artifice, but to meet the very difficulty which seems to have suggested itself to law makers in other States, and expressed the same idea conveyed in Illinois by using the words `By himself, clerk or servant', in Georgia `by himself or another,' and in Arkansas by extending the criminal liability to every one who might be interested in the sale to a minor.'
"The rule that the licensee is criminally liable for an authorized sale of intoxicating liquors by his servant without the consent of the licensee and against his instructions, has also been applied in cases of unauthorized sales to habitual drunkards. Police Com'rs v. Cartman (1896), 1 Q.B. (Eng.), 655, 65 L.J.M.C., 113, 74 L.T.N.S., 726, 44 W.R., 637, 18 Cox C.C., 341, 60 J.P., 357; Mullinix v. People, 76 Ill. 211; Dudley v. Sautbine, 49 Ia., 650."
Buttressed and sustained by these authorities, uniform and practically universal; sustained further by the provisions of the law of my country, that words of common acceptation must be interpreted and understood according to their every-day meaning; sustained under conviction further of the fact that the Legislature of this State had wisdom enough to institute a prima facie rule of evidence in language so clear and plain that no man could mistake its meaning; that if they had meant merely to supply another prima facie rule, that they would not have used language in which prima facie does not occur, in which the word evidence does not occur, but which on the contrary by terms as clear and as convincing as the commandment, "Thou shalt not steal," has made the guilt of the licensee depend upon the guilt of his servant, I can not without this further protest permit this decision to go unchallenged.