concurring. — I concur in the conclusion, that the judgment should be reversed and the prisoner discharged, but not entirely on the grounds upon which that conclusion is based.
*683The ordinance attacked provides in part: “No person, firm or corporation shall sell, or supply, or offer to sell or supply within the City of Miami, Florida, for a consideration, any water for human consumption, which shall have been taken from a well or other sources of supply within or without the limits of the City of Miami, unless the vendor shall hold a valid permit from the Board of Health of the City of Miami,” and proceeds to describe what shall be necessary before the permit-shall issue.
Section 3 provides in part: “It shall be unlawful for any persons, firm or corporation to sell, serve or supply for a consideration, any water for human consumption containing more than 300 parts per million of chroline in the form of magnesium or sodium chlorides, or more than 250 parts per million of carbonates in the form of calcium or magnesium carbonates.”
Section I provides in part: “It shall be unlawful for any person, firm or corporation to sell, serve or supply for a consideration any water for human consumption containing more than 200 bacteria to 1 cubic centimeter, or which is not potable, or which can be used for human consumption without danger to human life.”
The petition alleges that H. D. Hyman, Manager of the Miami Water Company, was charged with “supplying to the patrons of the Miami Water Company for human consumption water taken from a well within the limits of the City of Miami without having secured a permit from the Board of Health of the City of Miami pursuant to said ordinance,” and that “he was convicted on said charge.”
*684It is not alleged in the petition, nor contended by counsel for petitioner that the accused' did not supply the water. The sole contention is that the ordinance is unconstitutional and void for the reasons set out in the petition.
The petitioner was the manager of the Miami Water Company, a foreign corp'oration, and if by. virtue of such management, he supplied water to the inhabitants of Miami fpr the Miami Water Company, he comes within the terms of the ordinance which prohibits any,“person, firm or corporation” from selling or supplying, or offering to sell or supply within' the City of Miami for a consideration any water for human consumption without a” valid permit from the Board of Health of the City of Miami.”
In the opinion of the majority of the court it is said: “The corporation and not he owns the franchises. It is the corporation and not he that supplies the water, owns the tanks and reservoirs which,are to be inspected, and to whom the permit, if any, should' be granted.”
The doctrine of this proposition is that because the corporation owns the franchises that it alone and. not the manager, whom it puts in charge of its business which, procuring, selling and supplying water, can sell or supply the same. By a long line of decisions, a contrary ’doctrine seems to be recognized by the courts in this country.
In the case of La Norris v. the State, 13 Tex. App. 33, the defendant was an employee of the Pullman Palace Car Company, and had charge of a car belonging to the company where there was a small bar from which liquor belonging' to the Car Company was sold. It -was proven that the defendant sold two drinks from this bar to *685passengers. Neither the defendant nor his employer had paid the occupation tax required by the statute. The court in. passing upon the phase of.the case that we áre here .considering, said:
“Appellant also claims that as he was only an employe of the Palace Car Company, who were the proprietors of the business, he is, not subject to this prosecution. We think he was ‘a person engaged in the business,’ in the meaning of the statute. To hold otherwise would render the law practically ineffectuál in all cases where the proprietor or owner of such business was beyond the jurisdiction of the courts of this State, as in this case. A non-resident could, through agents and employees, violate this law with impunity.” La Norris v. The State, 13 Texas, 33.
In the case we are considering, a corporation of- the State of New Jersey placed a manager in Miami where its property is situated, and water from its wells was to be sold, served and- supplied to the -people of Miami. If we adopt the construction, that the corporation alone sold, served and supplied - the water, it would enjoy immunity, although the water which the manager of the corporation supplied its patrons was deleterious to the public to the extent of being poisonous.
In Roberts v. O’Connor, 33 Me. 196, the court said':
“It is not denied that the sale made by the defendant was unlawful, but the defense set up is that he made it, not on his own account, but merely as the servant of another person; in other words, that another person gave authority to the defendant to do an unlawful act. But no person had the right to give such authority, and it can furnish to the defendant no protection.”
*686In the case of Commonwealth v. Hadley, 11 Met. 66, the court said:
“Then we are brought to the question of construction, if indeed there be room for construction, of those words of the statute, 'any person who shall‘sell.’ It appears to us that one who offers an article for sale, either upon the application of the purchaser or otherwise, and who, when the offer is accepted, delivers the article in pursuance of the offer, does 'sell’ or make a sale, according to the ordinary sense and meaning of that term. It would seem strange and contradictory to maintain that one who sells goods on commission, or as the factor, agent or salesman of another, does not sell them. The argument assumes that a sale must be construed to be a contract by which the owner of property alienates it an;d transfers his title to another. But this is a very limited view of the subject. It is not less a sale, and even a valid sale, when made by the authority of the owner. So, the naked possession of property, however obtained, is some evidence of title; the holder may make a sale de facto, which can only be defeated by one having a higher title, and which may be ratified by the assent of the owner. The statute prohibits all sales by unlicensed persons, as well sales de facto as sales by an owner, and therefore the case is within the words of the statute.”
It is true these are cases where question of the sale of liquor was involved, but I can see no difference in principle between what constitutes a sale where the article dealt in is liquor, and where the article is water that is deleterious to the public health.
If the manager or employee of a company that owns intoxicating liquors may be convicted of selling the same where' he delivers the company’s goods to another *687and receives money from the purchaser for the company, then the manager of a water company that supplies water belonging to a company who has not obtained a permit for that purpose comes within the same rule.
“A barkeeper, whose business is to sell fermented, vinous or spiritous liquors, is within the meaning of R. C. 3619, which prohibits any person who keeps these liquors from selling them to minors, etc., whether he owns the saloon or the liquors, or is merely employed to sell them.” Marshall v. The State, 49 Alabama, 21.
“The statute makes it a positive requirement that a license shall be first obtained before a sale can be made without incurring the penalty denounced. It makes such an act indictable, irrespective of guilty knowledge, and ignorance of fact, however, sincere and honest, cannot avail as a defense. Hence it is no defense to an indictment for selling liquor without a license that the defendant sold as- the agent of another person.” State of Oregon v. Geo. Chastain, 19 Oregon, 176.
“Whoever, being of legal discretion, acts tortiously, is personally responsible to the injured party; and the fact that it was done as the agent, or by the request or command of a third person, is no excuse. In analogy to a rule so wholesome in civil cases, it is time it should be written, .if it be not already, that in misdemeanors of the class we are considering, all who thus aid, assist or abet are guilty as principals. In fact, no reason is perceived for entertaining such an excuse, in a case like the present, that would not be applicable in reference to graver offenses, and the courts should extend to it not the slightest countenance. It may be admitted that it would be most appropriate, in all cases, to indict the principal where *688he was known; but the object of the law should not be defeated by the fact that the owner of a dram shop so managed as to keep himself concealed from the inquest of the State, by interposing another person as the ostensible offender.” Robert Hays v. The State of Missouri, 13 Mo. 246.
It is not necessary to discuss whether this is one of the class of contracts the obligation of which the constiution protects from impairment, because the standard prescribed by the ordinance of 1919 is unreasonable and not a proper exercise of the police power for the protection of the health and welfare of the people of the City of Miami, and as the opinion strongly intimates, the ordinance is “an unnecessary, capricious, intermeddling and interference with the obligations of the contract,” and I quite concur in the view of Min Justice Ellis where he discusses the unreasonableness of the ordinance.