(dissenting) — I am unable'to agree the record is “devoid of any showing as to who made- the sale” of beer to the minor. The record shows John Rhoads was employed by defendant as bartender in the tavern and was in charge of it that day.- It may be fairly inferred Rhoads made the sale. There was no evidence to the contrary. The sale was made in the regular *1335course of the business Rhoads was employed by defendant to transact. Defendant as a witness did not testify the sale was without his consent or .contrary to his instructions.
The majority opinion states a criminal intent is essential before it can be said an offense has been committed and whether intent is a necessary element of a statutory crime is a matter of statutory construction. That statement is indefinite and inadequate and does not accord with the general rule which is also the rule in this State. The general rule is intent is not an essential element in statutory crimes of this nature unless the statute so provides. State v. Striggles, 202 Iowa 1318, 1320, 210 N.W. 137, 138, 49 A. L. R. 1270, 1272, states:
“It is settled law that, in prohibitive statutes covering misdemeanors, where no provision is made as to the intention,1 and the word ‘knowingly’ or other apt words are not employéd, tó indicate that knowledge is the essential element of the crime, intention is not an element of the crime. Especially is this so where the act is forbidden by statute in the aid of the police power of the state.”
In the language of State v. Cooper, 221 Iowa 658, 663, 265 N.W. 915, 917:
“The point is that the legislature inserted intent as an essential element of all offenses punishable under section 85 * * *. But this element of intent was not made part of any of the other offenses the legislature at the same time created in other provisions of the act. This leaves these other misdemeanor offenses punishable, regardless of intent. * * * It is also significant that these other offenses, such as illegal possession, bootlegging, nuisance, using liquor in public places, are further distinguishable from violations of section 85, in that such offenses are peculiarly such as may be committed by the general public.”
Hammond v. King, 137 Iowa 548, 552, 114 N.W. 1062, 1063, states: “* * * many police regulations, including those relating to the sale of intoxicating liquor, are so framed that the doing of the prohibited act is punishable as a crime, regardless of the intent with which it was done.”
*1336State v. Fountain, 183 Iowa 1159, 1163, 168 N.W. 285, 286, states:
“Moreover, the matter of intent is not involved in an accusation of selling intoxicating liquors. If the defendant or anyone else for him actually sold intoxicating liquors on the premises, he would be guilty, whether he intended so to do or not.”
Code section 124.1 makes it unlawful to sell.beer without a permit. Subsequent sections in the chapter regulate such permits and sales. The sale of beer is regarded, as a business requiring substantial restriction and control and the act recognizes the necessity of strictly regulating it for the protection of the public welfare and morals. Soursos v. Mason City, 230 Iowa 157, 158, 296 N.W. 807; State v. Talerico, 227 Iowa 1315, 1321, 1323, 290 N.W. 660; Bernstein v. City of Marshalltown, 215 Iowa 1168, 248 N.W. 26, 86 A. L. R. 782.
The majority refers to the paragraph of Code section 124.20 here involved and points out that the first sentence makes it unlawful for “any person” to. offer or make beer available to a minor upon the premises of a permit holder and that the second sentence makes a violation of this provision by a permit holder “or any of his agents or employees” ground for revocation of the permit. The majority reasons the failure to specifically list “agents or employees” in the first sentence indicates a legislative intent not to make the permit holder responsible for their acts.
This reasoning overlooks the language of the first sentence which makes it unlawful for any person to make beer available to a minor on the premises of a permit holder, or for a minor' to secure or attempt to secure beer from any person, or amy person to offer beer to a minor, except in a home, etc. However, the permit holder’s license may not be revoked merely because any person makes beer available to a minor in a tavern. Only such act by the permit holder or his agents or employees affords ground for such revocation. The effect of the language in the second sentence, any holder of a permit “or any of his agen.ts or employees” is not to extend, but rather to limit the class of persons whose conduct might constitute grounds for revocation of the permit. This limitation affords no sound basis for concluding the language of the first sentence should be construed *1337as exempting the permit holder from the responsibility for the conduct and acts of his employees in the regular course of their employment.
In State v. Probasco, 62 Iowa 400, 402, 17 N.W. 607, 608, the statute provided “ ‘it shall be unlawful for any person who keeps a billiard hall, beer saloon or nine or ten-pin alley, or the agent, clerk or servant of any such person, or any person having charge or control of any such hall, saloon, or alley, to permit any minor or minors to remain in such [place] * * * or to take part in * * * billiards.’ ”
It will be noted that statute is in much the same form as the first sentence of the paragraph of the statute here involved which makes it unlawful for any person to make beer available to a minor on the premises of a permit holder. The statute in the Probasco case did not in so many words make the keeper subject to prosecution for the conduct of his employees, it merely included employees in the class subject to prosecution themselves, but the court in affirming the conviction said at page 403:
“Hence, if proper watchfulness is not exercised by either; if the keeper fails to enforce watchfulness on the part of his employes, and thereby a minor is permitted to remain in the saloon, both violate the statute.
“It is obvious that, in the absence of watchfulness and proper effort to discharge the duty imposed by the statute, if a minor remain in the saloon without the knowledge of the beeper or employe, each is liable for the penalty provided by the statute.” (Italics supplied.)
State v. Bradley, 231 Iowa 1112, 1116, 3 N.W.2d 133, 135, is cited by the majority. That case did not involve the act of an employee in the course of his employment for which defendant would be responsible. It turned upon an instruction defendant could be convicted if liquor was kept upon the premises with or without his knowledge. This instruction was held to be erroneous. The record there showed only that liquor was found on the premises. Had it showed defendant’s bartender was dispensing such liquor over the bar in the course of his employment the facts would have been similar to those in the case at bar.
*1338The majority warns “we must not’confuse criminal intent with knowledge.” This warning is not appropriate under the circumstances of this and like cases where the prohibited act is the. act of an agent or employee for which the statute makes the defendant criminally responsible. In such cases the knowledge of the agent would be the knowledge of the defendant. The majority seems to have overlooked the difference in principle pointed out in Dudley v. Sautbine, 49 Iowa 650, 652, 31 Am. Rep. 165, between the criminal responsibility of the owner for illegal sales of liquor by a barkeeper without the owner’s knowledge or consent, and for illegal sales by the owner’s wife in his name: “In the-former case the barkeeper was employed to sell liquor to persons not intoxicated, and he was employed to' observe and determine who among those desiring to purchase were not intoxicated.- In tire case where the wife whose husband was not licensed sold liquor, she did not merely fail in the proper discharge of her duty, but she acted entirely outside of her duty, for she was not employed to sell liquor at all.”
In 139 A. L. R. 306 is an annotation entitled, “Criminal responsibility of one authorized generally to sell intoxicating liquors for particular illegal sale thereof by employee or agent.” At page 309 the author states most of the statutes contadn no express stipulation as to' the criminal liability of am employer for unlawful sales by his employees or agents in the course of their employment, and continues:
“Decisions (of which the following are illustrative) holding that an employer is criminally responsible for unlawful sales of intoxicating liquors by his employee within the scope of his employment are based largely upon the doctrine that in statutory crimes intent is not an-ingredient of the offense unless provision in that regard is incorporated in the statute.” (Citing authorities.)
The majority states the rule to. be: “That is to say, while an intent to break the law is not essential, a knowledge of the act itself is required, at least in the absence of an expressed legislative intent otherwise.” This statement overlooks the language of several decisions of this court already referred to herein, with reference to the criminal liability of the employer for acts *1339of his agents or employees. As a matter of fact the doctrine of criminal responsibility of the employer for illegal sales of liquor by employees in the course of their employment is so- well recognized that in the annotation in 139 A. L. R. 306 et seq. are subdivision headings listing many decisions involving (a) Sales without knowledge or consent of, or in the absence of, employer, (b) Sales contrary to instructions. Neither these various courts nor the annotator “confuse criminal intent with knowledge.” Perhaps it should be again stated that in the case at bar there was no evidence the sale to the minor was without defendant’s consent or contrary to his. instructions.
In State v. Brown, 73 Or. 325, 144 P. 444, the proprietor was, held criminally responsible for the sale by his bartender of liquor to a minor, without the knowledge of the proprietor and contrary to his express orders. In Hershorn v. People, 108 Colo. 43, 54, 113 P.2d 680, 685, 139 A. L. R. 297, the manager of a night club contended he was not criminally liable for illegal sales to a minor during his absence, since there was no knowledge or intent on his part to commit the crime. The court rejected this contention, quoting from 30 Am. Jur. 414, 415, 416, Intoxicating Liquors, sections 301, 302 and 303, citing various decisions and stating the authorities were in conflict but its decision was in harmony with the majority rule. “To hold otherwise would largely nullify section 3(b) supra” which provides it shall be unlawful to sell spirituous liquors to anyone under the age of twenty-one or to an intoxicated person.
State v. Schull, 66 S. D. 102, 106, 107, 108, 279 N.W. 241, 243, 115 A. L. R. 1226, involved the sale of nonintoxicating beer to a person under eighteen by an employee during the licensee’s absence and contrary to his instructions. The statute read: “ ‘It shall be unlawful for any licensee under the provisions of this act to- sell or give any nonintoxicating beer or wine to any person under the age of 18 years.’ ” The decision states it was the duty of the licensee to prevent such sales:
“We can see no distinction between the statute imposing that duty upon the licensee and the statutes which imposed upon proprietors of saloons the duty to beep their saloons closed during certain hours and certain days. By analogy, we believe that the *1340reasoning used in our decisions holding the proprietor of a saloon ■responsible under the intoxicating liquor statutes is decisive of the facts before us. * * *
“The trial court, in the instant case, in effect ruled that it was no defense by the holder of a license that the prohibited acts were committed by an agent, servant, or employee, without authority or contrary to instructions, during the absence from the premises of the holder pf the license. This ruling, we believe, was correct and is in line with the leading authorities.”
I would affirm the judgment of conviction.
Garfield and Mulroney, JJ., join in this dissent.