My mind is not fully settled as to the correct construction to be given to the clause of the Baskin-McGregor law referred to in the opinion of the majority, but on reflection and such examination as I have been able to give the matter, I am inclined to think, both on reason and authority, that the decision is not correct. Section 20 of this Act is as follows: "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 any Sunday or election day by any agent, clerk or other person acting for any retail 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." The conclusion might be inferable from this language that it was intended to make the owner of such business responsible for the pains, penalties and forfeitures in civil suits for disobedience to the requirements of this Act by the agent, the same as if violations thereof had been done in person by the principal, but this construction, we think, may be incorrect for that in the absence of such a statute, this, we believe, would in any event have been the construction necessarily to have been placed on such conduct. If we shall say that before the principal shall be liable for the act of his servant, he must be acting for him, or by his direction and procurement, then the inclusion of this matter would seem unnecessary because in the absence of such provision, under well settled principles, the proprietor would be responsible and would be a principal in such offense under our law. Is it not rather a fair inference that the Legislature intended to provide that for these violations, which the proprietor could prevent, he should be responsible as an offender, although committed without his authority and even against his express direction? Is it not a fair inference to say that having the authority to prevent such infractions of the law, he would, on acceptance of license under a law containing this provision be put on notice, that at the peril of conviction he must do so? We are not, of course, concerned with the wisdom of such provision. That was a matter for the Legislature. Our province is to determine what it means, and, having found the legislative intent to give it effect unless it should offend against some constitutional provision. I find, on examination, that similar statutes have been almost uniformly upheld, both in this country and in England. Black on Intoxicating Liquors, section 370, thus lays down the rule: "It has been already mentioned that statutes enacted in several of the States have modified the common law rule as to the criminal responsibility of a master for the acts of his servant or agent, so as to make him answerable in cases where he could not be held to liability without such statutory provisions. Under these laws, it is held to be no defense to an *Page 527 indictment against the principal that the unlawful act was done without his knowledge or consent, or without his authority, or in his absence, or even that it was done in contravention of his express and bona fide orders. This rule is applied, for example, under a statute providing that any unlawful sale of liquor to a minor, by a clerk or other person acting for a dram shop keeper, shall be deemed the act of the keeper himself. So under a statute which imposes a penalty upon any person who shall sell by himself or another. The same is the case under a statute providing that no person or persons, by himself or another, shall sell, or cause to be sold, or furnished, or permit any other person or persons in his employ to sell intoxicating liquors to minors. And so under a statute subjecting to its penalty `any person who may own or have any interest in . . . liquor sold contrary to this Act.' And under laws of this kind, an allegation in the indictment that the liquor was sold by the defendant is sustained by proof that it was sold by his barkeeper, and it is immaterial that the latter acted in violation of his instructions. The object of these statutory provisions, in effect, is to require the principal to see to it, at his peril, that no unlawful sales are made in his establishment. And if it savors of severity to subject him to punishment for the acts of others which he had expressly forbidden, it must be remembered that he can escape liability by selecting servants and agents who will keep within the law and obey his orders, or by abandoning a business which exposes him to such hazards." A rule to the same effect is thus stated in the American and English Encyclopedia of Law, vol. 17, p. 387: "In a number of jurisdictions the employer is criminally liable for a violation of the liquor laws by his agent or servant, although the acts which form the basis of the prosecution are done without his knowledge or consent, or against his directions given in good faith. These statutes, though not differing materially, if at all, from the statutes in the States in which no criminal liability is held to attach to the employer under like circumstances, are, by the construction placed upon them, held to eliminate the element of guilty knowledge or intent. It has, therefore, been held that if the statute makes it an offense for `any person' to sell, etc., or for any person to sell `by agent or otherwise,' or for any person to sell `by himself or another,' or to sell `either directly or indirectly,' or if the statute forbids any party to `permit' the prohibited act, or if the statute requires that all saloons or dram shops shall be closed on Sunday and makes `any' dram shop proprietor or saloonkeeper punishable for a violation thereof, the master will be liable for a violation of the act by his agent or servant committed without his knowledge or consent and against his express directions. And where the statute subjects to punishment not only the one violating the law by personally selling, *Page 528 but also any person who may own or have any interest in liquors sold contrary to law, it has been held that an employer will be liable for sales made by his agent or servant in violation of the law, notwithstanding such sales were made without his knowledge or consent and against his directions. The fact that the employer attempts to rescind an illegal sale will not exempt him from liability; nor will his good faith in instructing his servant or agent to refuse to make sales of the class prohibited by statute aid him further than to commend a mitigation of the punishment imposed by law." To the same effect also is a briefer recognition of the same doctrine in Cyclopedia of Law and Procedure, vol. 23, p. 208, where the rule is thus laid down: "But if the general course of the business is lawful the master is not criminally liable for illegal sales made by his clerk, servant, or agent, without his knowledge or consent, express or implied, or in his absence and in disobedience to his commands or instructions, except where the statutes are so broad as to hold the master responsible for all acts of his employes, whether authorized or permitted by him or not." In support of this the author quotes the following authorities: "Mogler v. State, 47 Ark. 109, 14 S.W. 473; Cloud v. State, 36 Ark. 151. See, however, Wilson v. State,64 Ark. 586, 43 S.W. 972; Lehman v. District of Columbia, 19 App. Cas., 217; Snider v. State, 81 Ga. 753, 7 S.E. 631, 12 Am. St. Rep., 350; Boatright v. State, 77 Ga. 717; Loeb v. State, 75 Ga. 258; compare Johnson v. State, 83 Ga. 553,10 S.E. 207; Noecker v. State, 91 Ill. 494; Mullinix v. People,76 Ill. 211; McCutcheon v. People, 69 Ill. 601; State v. Stewart, 31 Me. 515; Carroll v. State, 63 Md. 551,3 A. 29; People v. Longwell, 120 Mich. 311, 79 N.W. 484; People v. Roby, 52 Mich. 577, 18 N.W. 365, 50 Am. Rep., 270; People v. Blake, 52 Mich. 566, 18 N.W. 360; compare People v. Hughes,86 Mich. 180, 48 N.W. 945; People v. Parks, 49 Mich. 333,13 N.W. 618; Teasdale v. State (1887), 3 So. 245; Fahey v. State, 62 Miss. 402; Gathings v. State, 44 Miss. 343; Riley v. State, 43 Miss. 397; State v. Denoon, 31 W. Va. 122,5 S.E. 315; Police Com'rs v. Cartman (1896), 1 Q.B., 655, 18 Cox C.C., 341, 60 J.P., 357, 65 L.J.M.C., 113, 74 L.T. Rep., N.S., 726, 44 Wkly. Rep., 637; Mullins v. Collins, L.R., 9 Q.B., 292, 43 L.J.M.C., 67, 29 L.T. Rep., N.S., 838, 22 Wkly. Rep., 297." The same rule, as I conceive, is recognized and stated by Mr. Wharton in his valuable work on criminal law, vol. 1, sec. 88, where he says: "When a statute makes an act indictable, irrespective of guilty knowledge, then ignorance of fact, no matter how sincere, is no defense." Again, he says: "In several States selling intoxicating liquors to minors is indictable by statute, and in such cases, also, arises the question whether the defendant knew that the vendee was a minor. Here, again, we have the rule before us applied, it having been *Page 529 repeatedly held that in cases in which knowledge is no part of the statutory offense, ignorance in this respect, coupled even with an honest belief that the vendee was of full age, is no defense; and the same rule applies to all cases of dealing illegally with minors." And he cites a case where an indictment was sustained for selling liquor on Sunday and held that the offense was committed, although it was shown that the sale was by a clerk without the defendant's knowledge or consent. See People v. Roby, supra. Among the earlier cases in which this doctrine was held was that of People v. Roby, 52 Mich. 577, delivered by that great judge, Thomas M. Cooley, where, after examining the matter at some length, he says: "Many statutes which are in the nature of police regulations, as this is, 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."
And in conclusion he adds: "But the statute requires the proprietor at his peril to keep the bar closed. The purpose in doing so is that persons shall not be there within the reach of temptation. This respondent did not keep his bar closed and he has, therefore, disobeyed the law. And he has not only disobeyed the law, but the evil which the law intends to guard against has resulted; that is to say, there has been, either with or without his assent — it is immaterial which — a sale of intoxicating liquors to a person who took advantage of the bar being open to enter it." The decision of the Supreme Court of Missouri, cited in the opinion, sustains in a measure the opinion of the majority. I recognize that it is the rule that ordinarily where a statute of another State is in terms adopted by our Legislature, which statute has received in the State from whence adopted a judicial construction, that ordinarily our courts will give it the same construction which it had received in the parent State. But doing this, it seems to me is to radically depart from the basic principles of our criminal jurisprudence. In the case of State v. McCance, supra, it was held that where under an indictment which charged the defendant with selling liquor to a minor and the evidence showed that the sale was made by defendant's agent, that such proof of sale is prima facie evidence of defendant's guilt which may be overcome by showing that the sale was made by the agent against defendant's positive orders given in good faith. Except in respect to certain questions where our statute in terms so provides, we do not recognize in this State any rule of prima facie evidence of guilt, but in every case where there is a plea of not guilty and the guilt of the defendant charged must rest on the evidence to the end of the case, there is no presumption of guilt and therefore no prima facie case, but the whole question must be submitted to and determined by the jury. Besides, the *Page 530 opinions of the Missouri courts are not, to my mind, either very clear or very satisfactory. While we may, and I am willing to concede should, recognize the fact, as stated in the original opinion, that this legislation was in a large measure the work of Mr. McGregor, formerly a member of the Missouri bar, it must, nevertheless, be remembered that there was something like 130 other men members of that body, besides the State Senate, who had never practiced in that jurisdiction. The rule that the same construction will be given a statute as that adopted in the parent State is but one of many rules of construction and is not absolute or always imperative. The lawyers in the Thirtieth Legislature must have known, as every lawyer knows, that on issues of fact, except where in express terms provided by law, our courts have always disregarded the theory of a prima facie case. What lawyer in Texas today would hold, or say that the trial court would be justified in charging the jury in a case like this that on proof of a sale by his agent, the law raised a prima facie case? It would be such a gross and palpable violation of the well settled rule inhibiting charges upon the weight of the testimony as that it would not receive the sanction of this court for one second. And yet, unless so instructed by the court, they could, they would never know this new and strange rule. So that to adopt the Missouri construction, or to seriously regard it as a factor in interpreting this language is to do violence to every legal principle wherever it obtains in every court of Texas in every hour of her history. There is the highest authority for holding that it does not necessarily follow that the prior decision construing the law must be inflexibly followed, since the circumstances in the State adopting it may be so different as to require a different construction. Little v. Smith,5 Ill. 400; Lessee of Gray v. Askew, 3 Ohio, 466; Jamison v. Burton, 43 Iowa 282. The case of Gaiocchio v. The State, 9 Texas Crim. App., 387, is perhaps by implication and analogy an authority against my views. The statute in that case, however, as it occurs to me, is not so broad as necessarily to require the construction which, I think, should be given to this statute. There the Act read as follows: "That if any liquor dealer, his clerk, agent, or employe, shall, on the sale, barter, or giving away of any vinous, spirituous, or malt liquors, fail to turn the crank of the proper register, as hereinbefore required, the person so offending, for each failure, shall be deemed guilty of a misdemeanor, and, upon conviction, shall be fined not less than fifty dollars and not more than one hundred and fifty dollars." Construing this statute, Judge Hurt, speaking for the court, says: "This Act seeks to punish the person offending, not by reason of the fact that he is the dealer, but by reason of the selling, and failing to turn the crank." It will be observed that this statute does not by its terms undertake to make the owner *Page 531 in any way responsible for the act, whether authorized or not, of his agent, and the case is not, I think, in principle, out of harmony with my views. In construing statutes similar to this, in order to arrive at the legislative intent, we must and should give some attention and consideration to the history of the times and the evils sought to be remedied by legislation which is the subject of construction. We can not close our eyes to the fact or fail to know that for several years men holding widely different views on other matters have vied with each other in throwing what was believed to be needed restrictions around the liquor traffic. This very law contains intrinsic evidence of the fact that it was designed so to do and that it was passed with this object, and such was believed to be its effect. This offense is not among those classed as malum in se — it is a conventional offense. Therefore, the question of intention cuts an inconsiderable figure, if indeed it is a matter to be considered at all. It is easily conceivable, and we believe such was the intent of the Legislature, that they had it in mind that they would impose this burden and responsibility on the owners of dram shops. It is apparent to me that they recognized that such owner who, in many, if not most instances, would be a man of some responsibility, and would be reluctant to in person commit an offense for which he might be fined and imprisoned and yet who might wink at offenses, or turn his back while offenses were being committed by irresponsible persons to whom such punishment would have little or no terror. Was it not the object of the law to get beyond and behind this irresponsible man and reach the owner who might, if he would, prevent such violations of the law? Was it not the intention of the Legislature to reach the man higher up, who could, if he would, keep his house in order and see that his business was conducted according to law? Such, I believe, to have been the intention of the Legislature. If it was their intention, the law contravenes no constitutional provision and should be given effect. Attention is called to what seems to be a conflict between sections 19 and 20 of the Act in question. There is, in fact, as I conceive, no conflict. Section 19 in substance provides that if one knowingly sells to a minor, etc., he shall be guilty. Section 20 in substance provides that wherever an act is done which is a violation of this law by an agent, it shall be held to be the act of the principal. As I conceive, these two provisions, read together, mean this: If the master, or principal, knowingly sells to a minor he is guilty; if he sells, or opens his place of business on Sunday, he is guilty. Here the word "knowingly" is omitted in reference to sales on Sunday for the reason that the law conclusively assumes that he knows the division of weeks and months into days, and knows when Sunday comes, but he would not necessarily know that a person to whom he sold whisky was a minor, and there must be some evidence *Page 532 that he knew this fact before his guilt would attach. Now, the same thing is true of the servant; if he knowingly sells liquor to a minor he is guilty. If he sells at all on Sunday he is guilty. If his act in either case amounts to a violation of the law, by force of section 20, his act is deemed for all the purposes of the law to be the act of his principal. Of course, in every case it would be necessary to show agency. This would be an essential fact to be proven. This was a disputed question in this case and was an issue of fact to be found by the jury. The charge complained of has no reference to this issue of fact, but the only matter which I am discussing is the true meaning of section 20, where the evidence shows or raises the issue of agency.
Finally, whatever I might be inclined to think as to the wisdom of this law, and while I recognize that there is some doubt as to the correct application of this rule, it at last comes to the question as to whether by processes of differentiation, where the statute is clear, we shall strike it down and substitute our own discretion and preferences for the plain provisions of the law. Whether it is a good law or bad law, if the legislative intent can, in fairness, be ascertained, we ought to give it effect. While not free from some doubt about the matter, my best judgment is that it was intended by the Legislature, for the protection of society, of the youth of the land, and to prevent the desecration of the Sabbath, to provide that a man who engaged in this business must, at his peril, take effective means to put his house in order and see that the law is obeyed, and that if he failed to do this, he should pay the penalty which the law imposed. Not to sustain this law is to substitute our will and wish for a precise, definite, clear and unambiguous provision of the law. It is in effect to trim by construction, where no construction is needed, the definite provision of the law for one that we think more just, reasonable or humane. The doctrine for which I contend has received the specific indorsement of the eminent editors of both the Cyclopedias — it has received the unqualified indorsement of Mr. Black in his valuable work on Intoxicating Liquors — it has received, too, the commendation and support of that most learned and philosophic work of its class, Wharton on Criminal Law. So far as I have been able to find, there is no law writer in America who has ever ventured a contrary opinion. I am, as I always am, reluctant to place my own judgment in opposition to that of my brethren, but I am unwilling to see a law of my country slaughtered and stricken down in the court of last resort by a construction unreasonable, as I believe, and wholly at variance with the legislative intent. If this law is to be buried, at least, I will set up a monument to mark the place where it rests.
So believing, I find myself unable to agree with my brethren, *Page 533 and think the matter of sufficient importance to make this statement of my views.