I dissent. This is an action to recover a penalty for a violation of article XI of the Public Health Law. The defendants are members of a copartnership and did not themselves do any act in violation of the Public Health Law. It was proved upon the trial that the ‘ ‘ relief clerk, ’ ’ who was a licensed pharmicist and was employed one night a week to take the place of the regular clerk, did violate said law without the knowledge and contrary to the express instructions of the defendants. The statute provides that the violation of the law shall constitute a misdemeanor and that one who violates such law “ who is not criminally prosecuted for a misdemeanor shall forfeit to the people of the state of New York, fifty dollars.” The statute also provides that “ the act, omission or failure of any officer, agent or other person acting or employed by any corporation or association within the scope of his authority or employment shall in every case be deemed to be the act, omission or failure of the corporation or association, as well as that of the officer, agent or other person.”
It will be observed that there is nothing in the statute which provides that the act, omission or failure of an agent of an individual or partnership shall be deemed the act, omission or failure of such individual or partnership. On the contrary the statute does provide, “ that in case of violation of the provisions of *44this article by a partnership, association or corporation, every member of the partnership or association and the directors and general officers of the corporation and the general manager of the partnership, association or corporation shall be individually liable, and any action, prosecution or proceeding authorized by this article may be brought against any or all such persons.”
It is true that in cases of the sale of adulterated goods, or of intoxicating liquors, the legislature has in certain cases provided that the act of the agent shall be imputed to the individual employer. Commonwealth v. Stevens, 155 Mass. 291; People v. Kibler, 106 N. Y. 321.
In Commonwealth v. Stevens, supra, the court said: “ The criminal liability of a master for the act of his servant does not extend so far as his civil liability, inasmuch as he cannot be held criminally for what the servant does contrary to his orders, and without any authority, expressed or implied, merely because it is in the course of his business and within the scope of the servant’s employment; but he would be liable civilly for a tort of this kind.”
■The authorities referred to above established that in cases of this character one may be held liable without criminal intent. No person or class of persons should have imputed to them, by judicial construction, offenses of which they are innocent and of which they had no knowledge. The doctrine of imputed cr.ime may easily result in injustice. The legislature is the judge of the public policy to be adopted and where it has not imposed a criminal liability the courts cannot impose such a liability.
Whether the discrimination which the legislature has seen fit to make, between the cases of corporations and associations and the cases of individuals and *45partnerships, is wise or not, is no concern of the courts. That the legislature had made such a discrimination the language employed plainly shows, and that such discrimination is not without reason cannot be denied. In effect it has provided that such juristical persons as corporations or associations, which can only act through a representative or agent, are chargeable with the acts or omissions of their representatives or agents, but that natural persons, like individuals or partnerships, who may act directly for themselves, are chargeable with their own acts but not with the acts of agents dr representatives who act without their knowledge or consent. The distinction made is one which writers on jurisprudence have often observed and commented upon. See Markby’s Elements of Law, § 125.
As I understand it, it is the duty of the courts to enforce the law as it is, and not to attempt, by construction, to make the law as they believe it ought to be. The legislature has discriminated between corporations and associations and the case of partnership, and it is the duty of the courts to observe the discrimination which the legislature has made, and it is not their duty to declare that the legislature did not intend to make the very discrimination which the language employed shows that it did intend to make. The legislature having failed to impose the penalty, the courts have no right, by construction, to impose it. It is no answer to this argument to say that the court does not hold that this construction shall be given to the statute where criminal liability is sought to be imposed. The statute makes no distinction between the cases where civil liability is to be imposed and the cases where criminal liability is imposed. Those violating the statute are, by its terms, rendered liable for a misdemeanor, and, in the event of their not being pros*46ecuted for a misdemeanor, they are liable to the civil penalty. Thus it is evident that unless "the parties have committed a misdemeanor they are not liable for any penalty at all. The same statute cannot be construed to mean one thing where a civil penalty is to be imposed and another thing where a criminal liability is to be imposed. The meaning of the statute is not affected by the character of the penalty imposed upon those violating it. Either the statute makes a partnership liable for the acts of its agent done without its authority and contrary to its express directions, or it does not. There is no halfway position possible. . Nor . does giving effect to the language of the statute make the statute in any way inconsistent or nullify any other of its provisions. In order to hold that the statute means what it says and does not make the act of the agent done without the knowledge and against the directions of his principal the act of a partnership, it is not at all necessary to decide that partners are not liable unless they intentionally violate the statute. The question whether the act must be intended, in order that liability shall be incurred, is not involved in this case and has nothing to do with the question presented for determination. If any individual or member of a partnership violates the statute, he can be held individually liable without proof of criminal intent. To so hold is quite different from holding that a partnership is liable for the act of an agent when it had no knowledge of the agent’s act and when such act was, in fact, contrary to their express direction. In my judgment the court below properly applied the statute in awarding judgment for the defendants dismissing the complaint.
I vote in favor of affirming the judgment appealed from, with costs.
Judgment reversed and judgment directed for plaintiff, with costs.