(dissenting):
I respectfully dissent. The strong public interest in prohibiting the sale of liquor to minors justifies the imposition of vicarious liability on the bar owner — employer for illegal sales to minors made by an employee. I respectfully suggest that in ruling Minn.Stat. § 340.941 (1984) unconstitutional, the majority has failed to give adequate weight to the clearly expressed, long-standing public policy of this state as reflected in Section 340.941. Imposition of vicarious liability and criminal punishment for sale of intoxicating liquor to minors has been the law in this state since 1905. See Minn.Rev. Laws § 1565 (1905).
In explaining the meaning and the purpose of a nearly identical predecessor of this statute, the court in 1913 stated:
This language plainly means that the act of the barkeeper is the act of the proprietor, that the proprietor must pay the penalty for sales made by his barkeeper in violation of the law, and that the delinquency of the barkeeper is the only evidence required to prove the guilt of the proprietor. The fact that the sale was made without the knowledge or assent of the proprietor and contrary to his general instructions furnishes no defense. The language of this statute is susceptible of no other construction. The offense is one of the class where proof of criminal intent is not essential. The statute makes the act an offense, and imposes a penalty for violation of the law, irrespective of knowledge or intent.
The statute is drastic in its terms, but the Legislature was doubtless of the opinion that drastic measures are required to accomplish the purpose of enforcement of laws regulating the sale of intoxicating liquors. The law was in existence when the offense was committed. It was a notice to every man choosing to follow this line of business that he must control his own business and the men he employs in it, and that he is bound under penalty of the law to employ only men who will not commit crime in his name.
State v. Lundgren, 124 Minn. 167-68, 144 N.W. 752, 754 (1913) (citations omitted).
Applying the rule of Lundgren, we upheld against constitutional challenge the sentence of conviction of a tavern owner for contributing to the delinquency of a minor. State v. Sobelman, 199 Minn. 232, 271 N.W. 484 (1937). The defendant was convicted, even though the state did not allege he was personally present in the tavern or that the minor was there with his knowledge or express authority. 199 Minn. at 234, 271 N.W. at 485. The court in Sobelman reasoned:
The protection of the morals and general well-being of minors is obviously what the statute aims at. If one operat*350ing a place where the vending of intoxicating liquor is the primary objective * * is to be exonerated from liability because he happens, whether by design or otherwise, to be absent at times when convenient to be away, then assuredly the very purpose of the law is frustrated and made for naught. The very spirit, intent, and purpose of the law, including as well the plain letter of it, repel the notion that any person so conducting his place of business can escape liability by absenting himself therefrom but leaving his servants and agents in charge to do as they please to his financial advantage, but at their own risk if caught in the game of violation.
199 Minn. at 234-35, 271 N.W. at 485.
In State v. Holm, 201 Minn. 53, 275 N.W. 401 (1937), this court upheld the conviction of a liquor store owner for selling intoxicating liquor to a minor. Construing a statutory provision prohibiting the sale of intoxicating liquor to any person under the age of 21, the court wrote: “The primary purpose in mind was to keep intoxicating liquor away from minors. The sound social and moral reasons behind this purpose are so evident that no discussion here is necessary.” 201 Minn. at 55, 275 N.W. at 402. In Holm, the employee, the actual seller of the liquor to the minor, had not been sufficiently identified to sustain a conviction. 201 Minn. at 55-56, 275 N.W. at 402. The liquor store owner claimed it was necessary to prove intent. We rejected this argument, ruling the defendant was responsible for sales made on his premises by his employees with or without his knowledge and consent. Id. More recently, this court reiterated the Lundgren rationale in upholding a conviction under Minn.Stat. § 340.-941. State v. Young, 294 N.W.2d 728 (Minn.1980).
The Lundgren reasoning seems even more compelling today now that the state has raised the drinking age to 21 from 19. In so doing, the legislature recognized the societal dangers of the consumption of alcoholic beverages by younger people, even though they are adults for other legal purposes. Act of March 17, 1986, ch. 330 § 6, 1986 Minn.Laws Vol. 2, p. 30, 34-36 (West Legis.Serv.1986), amending Minn.Stat. § 340A.503 (1985 Supp.). In the same chapter, the legislature enacted a law requiring every application for a driver’s license to include information on the effect of alcohol on driving ability and the levels of alcohol-related fatalities and accidents. Id. at § 1, p. 30-31. The state legislature has had a long-standing and continuing concern about problems associated with minors who consume alcoholic beverages. The defendant cannot claim a due process violation for lack of notice of a law on the books for more than eight decades.
Furthermore, imposition of vicarious liability and the threat of a short jail, not prison, sentence is reasonably related to the legislative purpose: enforcement of laws prohibiting liquor sales to minors. Without the deterrent of possible personal criminal responsibility and a sentence, the legislature could have rationally concluded that liquor establishment owners will be less likely to impress upon employees the need to require identification of age before serving liquor. Limiting punishment to a fine allows bar owners to view their liability for violations as nothing more than an expense of doing business. The gravity of the problems associated with minors who consume alcoholic beverages justifies the importance by the legislature of harsher punishment on those who help contribute to those problems. The state has the right to impose limited criminal vicarious liability on bar proprietors as a reasonable exchange for the state-granted privilege of a liquor license.
The majority today appears eager to destroy that 80 years of legislative policy and court interpretation in order to reach out and strike down Minn.Stat. § 340.941 on constitutional grounds. It does so even though in the present case the issue is not justiciable. Guminga has only been charged with a misdemeanor violation under Minn.Stat. § 340.941: he has neither been tried nor sentenced. No jail sentence has been imposed. See, e.g. State v. *351Colsch, 284 N.W.2d 839 at 841-42 (Minn.1979); State v. Young, 294 N.W.2d 728, 730 (Minn.1980). Under these circumstances there simply exists no merit to defendant’s general claim that he has been deprived of due process. See State v. Young; State v. Lundgren, 124 Minn. 162, 144 N.W. 752 (1913). The logic of the majority’s attempt to distinguish this case from State v. Lundgren and State v. Young on the gounds the sentencing guidelines were not then in force escapes me. Ever since the establishment of statehood, long before the establishment of the sentencing guidelines, a judge sentencing, for example, Mr. Lundgren or Mr. Young could have, and usually did, take into consideration prior convictions of this nature in enhancing subsequent sentences. The alleged distinction, in my opinion, is one without a difference. For all of the foregoing reasons, I would uphold the constitutionality of the statute.
But even if one can get over the justicia-bility hurdle, I am likewise deeply troubled that the majority opinion by declaring Minn.Stat. § 340.941 unconstitutional on the grounds that it violates substantive due process seems to revert to pre-1937 Lochner era. In Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905), the United States Supreme Court declared unconstitutional a statute limiting working hours as an improper exercise of the police power, in part, because the majority of the court in that case did not agree with the soundness of views which promulgated and upheld the law. The majority of the court in Lochner substituted its views that the statute substantially deprived employers of certain rights, doing so under the banner of substantive due process. That court, the Supreme Court of the United States, has wisely retreated from substantive due process as a constitutional theory for striking down economic and social legislation for more than 50 years. See, e.g., Ferguson v. Skrupa, 372 U.S. 726, 730, 83 S.Ct. 1028, 1031, 10 L.Ed.2d 93 (1963) (Court has long discarded Lochner doctrine and returned to original constitutional proposition that courts do not substitute their social and economic beliefs for judgment of acts of legislative bodies). See also Paulsen, M. The Persistence of Substantive Due Process in the States, 34 Minn.L.Rev. 91 (1950) where the author criticized state supreme courts for using substantive due process to strike down economic and social legislation after the United States Supreme Court had abandoned this approach. Yet that is precisely what the majority announces it is doing — striking down this legislation directed toward a regulation of a social problem on a substantive due process ground. See also McKnight, Minnesota Rational Relation Test: The Lochner Monster in the 10,000 Lakes, 10 Wm. Mitchell L. Rev. 709 (1984) (a critique of the Minnesota Supreme Court for resurrecting substantive due process and misapplying the equal protection rationality test).
Apparently the majority recognizes that the United States Supreme Court has used restraint in substituting the views of its majority for those of legislative bodies, for it now seeks to avoid that half century of precedent by suddenly holding that “due process of law,” as used in Minnesota Constitution, art. 1, § 7, which is identical to “due process of law” as used in amend. XIV, § 1 of the United States Constitution, permits a regression to substantive due process analysis authorizing this court to strike down legislative enactments the majority does not like. Indeed, the opinion goes even further than that because it purports to strike down any and all Minnesota criminal statutes that may impose “imprisonment” for one vicariously when one over whom one had control performed a criminal act.1
The majority’s holding today not only fails to give deference to decades of legisla*352tive policy, but it is likewise at odds with rulings of the majority of the courts of our sister jurisdictions. It can be stated as a general rule, that statutes imposing vicarious criminal liability upon the “innocent” employer for the illegal conduct of the employee have been generally upheld as constitutional. See Annot., 139 A.L.R. 306 (1942); Annot., 89 A.L.R.3d 1256 (1979). Although somewhat critical of the position of the great majority of the courts, Professor F.B. Sayre writing in Harvard Law Review acknowledged that in this field traditionally vicarious liability has not been considered to infringe on due process rights. Sayre, Criminal Responsibility for the Acts of Another, 43 Harv.L.Rev. 689 (1930). Likewise, although not necessarily embracing the majority position, and indeed critical of the imposition of vicarious liability in certain areas, LaFave and Scott have summarized the case law noting:
If the authorized punishment is light — a fine or perhaps a short imprisonment —the statute is likely to be construed to impose vicarious liability on a faultless employer. But if the permitted punishment is severe — a felony or serious misdemeanor — the statute is not apt to be so construed in the absence of an express provision for vicarious responsibility.
Handbook on Criminal Law at § 32 (emphasis supplied). The Minnesota statute in question here has an express provision for vicarious liability and permits light punishment. Minn.Stat. § 609.03. Section 340.-941 should be upheld as constitutional.
As lucidly stated in Hershom v. People, 108 Colo. 43, 113 P.2d 680 (1941), the Colorado Supreme Court in upholding the conviction of the president and general manager of a corporation which operated a nightclub for selling liquor to an intoxicated minor and affirming the imposition of a sentence of 60 days in the county jail said, “To make unlawful the sale of intoxicants to minors and inebriates, regardless of intent, is a reasonable legislative regulation of the liquor traffic, so long as the proscribed act amounts only to a misdemean- or.” 108 Colo, at 56, 113 P.2d at 686.
Likewise, the Model Penal Code also allows for vicarious criminal liability. “A person is legally accountable for the conduct of another when * * * he is made accountable for the conduct of such other person by the Code or by the law defining the offense * * *.” Model Penal Code § 2.06, subd. 2(b). The comment to the Model Penal Code makes reference to statutes such as section 340.941.
There is an additional situation contemplated in the formulation of Subsection (2)(b), mainly involving vicarious liability for acts of agents or employees in the course of their employment. Where the liability is not based upon explicit legislation, the decision to impose it by interpretation usually takes the ground that the legislature has imposed on special persons (e.g., an owner or a licensee) an absolute duty (e.g., that liquor not be sold to a minor), the performance of which is not delegable to an agent; or that strict liability has been imposed for the offense, making it no more unjust to hold the innocent master than his innocent servant acting in the course of his employment.
Id. at comment 4.
While the Twenty-first Amendment to the U.S. Constitution does not empower the state to invade a citizen’s due process rights, it “has bestowed upon the states broad regulatory powers over liquor importation, recognized as something more than normal state authority over health, welfare, and morals.” Federal Distillers, Inc. v. State, 304 Minn. 28, 40, 229 N.W.2d 144, 154 (1975), appeal dismissed 423 U.S. 908, 96 S.Ct. 209, 210, 46 L.Ed.2d 137 (1975). I would hold Minn.Stat. § 340.941 to be a proper exercise of state regulatory power that does not invade the defendant's due process rights. The statute does not impose strict liability but only vicarious liability subject to defenses. At trial, the defendant may establish the defense that he or his employee adequately attempted to *353investigate the age of the purchaser. Minn.Stat. § 340.942 (1984).2
Every legislative enactment comes to the courts with a presumption in favor of its constitutionality. Federal Distillers, Inc. v. State, 304 Minn. at 39, 229 N.W.2d at 154. The burden of proof is on the challenging parties to show beyond a reasonable doubt that the act violates some particular constitutional provision. Id. I do not believe the defendant has met his burden in challenging the constitutionality of Minn. Stat. § 340.941 of demonstrating that the act is “arbitrary and unreasonable.” State ex. rel. Larson v. City of Minneapolis, 190 Minn. 138, 139-40, 251 N.W. 121 (1933). He has failed to establish a justiciable issue indicating violation of any due process rights. But even if he had established a justiciable issue, I suggest the court errs in the holding that as a matter of substantive due process under Minnesota’s Constitution that Minn.Stat. § 340.941 violates the due process clause. I would follow our own precedents and remain consistent with the great majority of states in recognizing the legislatively stated public policy of strict enforcement of liquor laws prohibiting sales to minors by imposing vicarious criminal liability on the owner-employer for such illegal sales.
SCOTT, Justice(dissenting).
I join in the dissent of Justice Kelley.
. Throughout the majority opinion, the word "imprisonment” is consistently used. Perhaps it is mere semantic quibbling, but in Minnesota, under Minn.Stat. § 340.941, no one convicted can go to prison. Those convicted of gross misdemeanors in Minnesota do not go to prison. Although Minn.Stat. § 609.03 uses the word "imprisonment,” it really means jail time at most.
. Minn.Stat. § 340.942 provides:
In any criminal proceeding for the enforcement of the provisions of sections 340.035, 340.-73, 340.83, 340.941, relating to the sale or furnishing of non-intoxicating malt liquor or intoxicating liquor to the persons described therein, the defendant may establish by competent evidence that he has made a bona fide and careful investigation of the status of such person and he has determined upon evidence sufficient to convince a careful and prudent person that such sale is not a violation of said sections; such evidence shall be considered in determining whether the defendant is guilty of intent to violate said laws.