Dissenting. — I think- the ruling of the Circuit Judge in the matter of excluding the certificate of analysis was proper. It appears conclusively from the testimony that Mr. C. M. Berry was the “person selecting” the samples to be sent to the Commissionar of Agriculture for analysis.
The provision of the statute on this subject is, “But in order to protect the manufacturer or vendor from the submission of spurious samples, the person selecting- the same shall do so in the presence of 'two or more disinterested persons”
Mr. Fleischer testifies that he was present when the samples were selected, and that the other persons were Mr. C. M. Berry, ‘! and another man who was employed on the farm” whose name he did not remember. The defendant then offered in -evidence the “Certificate from the Agricultural Department of the State of Florida, signed *59and sworn by R. E. Rose, State Chemist, under date of February 11, 1918.” This was objected to upon these grounds:
“First, that the .same is incompetent.
“Second, that it has not been shown that said sample was taken and sent in accordance with the statute.
“Third, that the admission of the same in evidence would be a denial to the complainant of due process of law.
“Fourth, that the admission of the same in evidence would be a denial to the complainant of the equal protection of the laws.
“Fifth, that said certificate does not show that the analysis was made by the State Chemist. ’ ’
The ruling on this motion shown by the record, was “Objection Sustained, Jas. W. Perkins, Judge.”
Mr. Berry, who was the. County Agricultural Agent, testified that it was his custom to select samples for various people in the county. He selects ‘ ‘ from two to three hundred a year. ’ ’ He thus details his method of selecting the samples to be sent to the Commissioner of Agriculture: “I take a sampling iron and go to his place and, before another witness, draw the sample in accordance with the rules and regulations set forth by the State. We take at random ten sacks of the shipment, whatever the shipment may be, and draw practically an equal quantity from each of the ten sacks. This is mixed in a receptacle and then a portion of it is placed, approximately a pound, from a pound to two pounds, in a tin container. On that tin container is a label sealing the package at the time, before the two witnesses, another witness and myself, and in that *60manner the package is transmitted to the Commissioner of Agriculture for analysis.”
Under the statute there should have been two disinterested witnesses to the acts of Mr. Berry, who was “the person selecting the samples,” but no attempt was made to prove that his act was witnessed by two disinterested persons ; and the testimony shows that it was hot.
The County Agent’s construction of the law is that the statute only requires one disinterested witness to his acts in selecting and mailing the samples, as provided by law, and this view seems to be accepted by the majority of the Court. By the same process of reasoning, if the statute had provided that the “person selecting the samples” should do so “in the presence of one or more disinterested persons, ’ ’ there need not be any one present except the person selecting the samples, who would thus become a disinterested witness to his own act. I cannot accept that conclusion.
According to Mr. Fleischer’s testimony, the only person who saw the samples selected was a man employed on the defendant’s farm, and this circumstance tends to negative rather than establish his disinterestedness. Mr. Berry makes no attempt to -show that the only person he remembers who witnessed his selection of the samples, was disinterested. On this point he testifies as follows: Q. “Do you remember who the other witness was at this drawing, if you have any recollection of the drawing at all? A. I couldn’t state who the other witness was. On-his can is his own signature though. Q. But you don’t remember who he was? A. I don’t remember who was at that particular drawing.” -Q. You have no recollection of who was pres* ent at the time'the samples were.-, drawn ? A. I am of the *61opinion that a man by the name of William Mickens was there, but there being so many samples and so many witnesses, it is impossible for me to be positive at this time. However, the label on the can would determine that; also, of course, it bears the signature of the witness. ’ ’
If Mickens is the same that Mr. Fleischer testified about as being present, he was one of Mr. Fleischer’s employees and could hardly be classed as a disinterested person. But conceding that he was not, the .testimony is conclusive that there was but one disinterested witness present when Berry selected the samples.
I think the testimony establishes conclusively that the selection of the samples that were sent to' the Commissioner of Agriculture for analysis was not done according to law, and that the Court did not err in excluding the certificate upon the second ground of the objection, “that it has not been shown that said sample was taken and sent in accordance with the statute.”
The statute under consideration is in the nature of a penal statute, in that it provides that a purchaser of fertilizer or fertilizing materials “shall recover” “twice the amount paid to or demanded by the manufacturer or vendor for the fertilizer or fertilizing material so purchased.” Brockenbrough v. Spindle, 17 Gratt. 21; Globe Pub. Co. v. State Bk. of Neb., 41 Neb. 175; 22 L. R. A. 854; Bay City & E. S. R. Co. v. Austin, 21 Mich. 390.
In Bay City & E. S. R. Co. v. Austin, supra, the Court-held that a statute which authorizes a judgment to be entered for double the damages found by the jury, is in the nature of a penal statute.
“Statutes which impose penalties or forfeitures, or provide for a recovery of. damages beyond just compensation *62to the party injured, whether such penalties, forfeitures, or damages are to be recovered at the suit of the State or of a private individual, are to be strictly construed, in so far as they inflict punishment.” C. C. C. & St. Louis Ry. Co. v. Wells, (65 Ohio State 313) 58 L. R. A. 651.
It is a well settled rule that statutes of this nature are subject to strict construction. “More correctly it may be said that such laws are to be expounded strictly against an offender and liberally in his favor. ” 25 R. C. L. 1083; Hall v. N. & W. R. R. Co., W. Va. 41 L. R. A. 669; Jennings v. Commonwealth of Va., - Va. -, 163 S. E. Rep. 1080; 21 L. R. A. 265.
We have in this case applied the opposite rule, and the safeguard afforded by the Act, “to protect the manufacturer or vendor from the submission of spurious samples” is removed.