HULL, J.
The plaintiff in error was prosecuted under Sec. 4200-17 Rev. Stat., which is one of the sections providing against the sale of adulterated foods and drugs. This section prohibits the sale of oleomargarine except under its true name and when properly marked and stamped. The defendant was tried before a justice of the peace, oi city judge of the citv of Toledo, as he is called, and a jury, and found guilty. A motion for a new trial was filed and overruled, and a fine of $50 and costs was imposed upon the plaintiff in error. It was to reverse this judgment that proceedings in error were brought in the court of common pleas.and in this court. The judgment of the justice of the peace was affirmed by the court of common pleas; and it is sought here to reverse the, judgment of both courts below.
[674]*674After providing in Sec. 4200-13 Rev. Stat. against manufacturing articles in imitation of butter and cheese, and in Sec. 4200-15 Rev. Stat. for a penalty, Sec. 4200-16 Rev. Stat. provides that:
“No person shall manufacture, offer or expose for sale, sell or deliver, or have in his possession with intent to sell or deliver, any oleomargarine which contains any methly [methy] orange, butter yellow, annatto, analine dye or any other coloring matter.”
Section 4200-17 Rev. Stat., under which this plaintiff in error was prosecuted, provides as follows:
“Every person who shall offer or expose for sale, sell or deliver, or have in his possession with intent to sell or deliver, any oleomargarine, shall keep a white placard not less in size than ten by fourteen inches, in a conspicuous place where the same may be easily seen and read, in the store, room, stand, booth, vehicle or place where such substance is offered or exposed for sale, on which placard shall be printed in black letters, not less in size than one and one-half inches square, the words 'oleomargarine sold here,’ and said placard shall not contain any other words than the ones described; and no person shall sell or deliver any oleomargarine unless it be done under its true name and each package •has on the upper side thereof a label on which is printed in letters not less than five-eighths of an inch square the word 'oleomargarine,’ and in letters not less than one-eighth of an inch square, the name and per cent, of each ingredient therein.”
The plaintiff in error was charged with a violation of the provision contained in the latter part of this section, which provides that “no person shall sell or deliver any oleómargarine unless it be done under its true name and each package has on the upper side thereof a label on which is printed,” etc. The affidavit charged the defendant below with selling oleomargarine personally; it did not charge that he did it through a clerk or agent, but simply charged that Williams:
“ * * * did unlawfully sell to one Myra Heisey, also of said county of Lucas, a quantity of oleomargarine, the same being then and there a substance not pure butter, containing less than eighty (80) percent. of butter fats, to wit, eight and three-hundredths (8.03) per cent, butter fats, which said substance was then and there made as a substitute for, in imitation of, and to be used as butter; that then and there said oleomargarine was not sold under its true name, but was then and there sold as, for, under and by the name of butter; contrary to the form of the statute in such case made and provided and against the peace and dignity of the state of Ohio,” etc.
The evidence in the case showed that if a sale was made, it was [675]*675made by a person in the employ of the plaintiff in error, and not by him personally; and it is'claimed that.this constitutes a variance between the evidence and the affidavit.
The offense provided for in this section !s a misdemeanor, not a felony, and all parties to the commission of the offense are principals. In the case of Anderson v. State, 22 Ohio St. 305 (a liquor case) the indictment charged Anderson, the defendant below, with the sale of liquor personally; the evidence showed it was sold through an agent. On page 308 of the opinion the court say:
“Strictly speaking,' the legal relation of principal and agent does not exist in regard to the commission of criminal offenses. All who participate in the commission of such offense are either principals or accessories. ' In offenses less than felony all are principals.”
In the ease of State v. Basserman, 54 Conn. 88 [6 Atl. Rep. 185], referring to a liquor statute, the court say:
“Under that statute a delivery by an agent is in all respects the same as a delivery by the vendor himself.” ,
This Sec. 4200-11' Rev. Stat. makes ho express provision for the sale through an agent or servant, as is done in some statutes; but simply provides generally that “no person shall sell or deliver,” etc. If the oleomargarine was sold by a cler-k or employe of Mr. Williams, with his authority, the sale then would be made by him, the same as though he had made it personally, and, in our judgment, the affidavit is sufficient, and there was no substantial variance. It was not necessary to allege that the sale was made through an agent. That complaint of the plaintiff in error, as we view it, is not well taken. There is a common pleas decision in this state that holds otherwise; but there are no authorities cited in that decision, and the judge finally found that the evidence was not sufficient to warrant conviction in any event.
The chief question in this case is whether, if the oleomargarine was sold by the authority of the defendant below, through a clerk, it would be a defense for him to show that he had given directions and instructions to this clerk, and to his clerks generally, not to sell oleomargarine except under its true name, and unless stamped and marked as required by law. ,
The defendant below offered to testify that he had given such directions ; upon objection being made by the state, he was not permitted to do so, but the objection was sustained and the testimony excluded; and the case as finally submitted to the jury, under the charge of the court excluded from their consideration anything of this kind. It is urged by'counsel for the plaintiff in error that there can'be no criminal [676]*676intent, no conviction of a criminal offense of any kind, where the defendant himself has not been a party to the offense, where he has not knowingly committed any offense personally and, in this case it is claimed, and it was offered to show that he had given instructions to his employes not to sell the oleomargarine, except according to the provisions of this statute.
On the other hand, it is urged by the state that under a statute of this kind and similar statutes providing against the sale of adulterated foods and drugs, one who authorizes another to sell is bound to know that the law is being complied with by his agent and employe, and that it would have been no defense for Mr. Williams to show that he had given instructions — private instructions to his clerk not to sell oleomargarine, except in accordance with the law — that if, in fact, it was sold from his store, sold there by his authority, lie would be guilty of a violation of this statute, if sold contrary to its provisions by the clerk, notwithstanding his instructions.
Questions similar to this have arisen more often perhaps in prosecutions under statutes providing against the sale of intoxicating liquors, than in any other class of cases; but the Supreme Court of this state has had before it some cases arising under the food laws, where they have laid down certain principles, which we think control this case, although no case exactly like this has been before the Supreme Court.
In the case of State v. Kelly, 54 Ohio St. 166 [43 N. E. Rep. 163], the defendant was .charged with selling adulterated food; he sought to show in his defense that he had no knowledge that the food was adulterated, but believed it to be pure, and sold it in good faith; and in the trial before the justice of the peace, this instruction was requested:
“While it is not necessary to charge knowledge in the affidavit, want of knowledge and absence of intent is a valid defense. You will carefully weigh the evidence of all the witnesses, and if the evidence discloses that the defendant bought the molasses, he is here charged with selling, for pure New Orleans molasses and honestly believed it to bfe such, that still believing it to be pure, he sold it as such without intent to deceive the purchaser thereof as to its true character, you must acquit the prisoner.”
This instruction was refused and upon Kelly’s- conviction the case was taken on error to the common pleas court and the judgment reversed there and the ease went to the Supreme Court on exception to the reversal. The court say in the syllabus of the case:
“1. An affidavit to charge a violation of the act of March 20, 1884 (Sec. 8805 Giauque’s Rev. Stat.), ‘to provide against the adulteration of [677]*677food and drugs,’ need not charge that an adulterated article of food is sold to be used as human food.
"2. In a prosecution under said act, it is net a defense that the accused is ignorant of the adulteration of the article which he sells or offers for sale.'-’
Judge Shauck, in delivering the opinion of the court said, page 17'i:
“Section 1 of the act of Ddarch 20, 1884 (Sec. 8805 Giauque’s Rev. St.at.), provides 'that no person shall within this state manufacture for sale, offer for sale, or sell any drug or article of food which is adulterated, within the meaning of this act/ Other provisions of the statute are devoted to definition of the terms used in Sec. 1, and to prescribing penalties for the violation of the act. It is not’doubted that molasses to which glucose has been added is an article of adulterated food within the meaning of this statute.
“The act does not in terms require, to constitute an offense against its provisions, that the adulterated articles’ of food shall be sold to be used by the purchaser as human food. Nor does it in terms require, as an element of the offense, knowledge of the fact that the article is adulterated, or provide that a want of such knowledge, shall constitute a defense. Both conclusions stated, in the decision of the court of common pleas, are, therefore, wrong unless there are justifiable inferences from the purpose and indicated policy of the act.
“The act is not a provision for the punishment of those who sell adulterated food or drugs, because of any supposed turpitude prompting such sales or indicated by them. Its purpose is Indicated by its title. It is 'an act to provide against the adulteration of food and drugs.’ It is a plan devised by the general assembly to protect the public against the hurtful consequences off the sales of adultérated food and drugs, those consequences being in no degree increased by the vendor’s knowledge, or diminished by his ignorance, of the adulteration of the articles -which he offers for sale. The provisions of the act are appropriate to the purpose indicated by its title. It would have been inconsistent with that purpose to provide for the trial of such immaterial issues as the object of the vendor in making- a sale or of the extent of his knowledge touching the quality of the article sold. Those who produce the adulterated articles whose sale is forbidden may live without the state. Purpose and knowledge, except when they are indicated by the character of the forbidden act, are, in most cases, insusceptible of proof. If this statute had imposed upon the state the burden of proving the purpose of the vendor in selling an article of food or his knowledge of its adulteration, it would thereby have defeated its declared purpose. Since it is the duty of [678]*678courts to so construe doubtful statutes as to give effect to the purpose of the legislature, they cannot in casé of a statute whose provisions are unambiguous and whose validity is clear, defeat its purpose by construction.
“The correct view of statutes of this general nature is stated by the Supreme Court of Massachusetts in Commonwealth v. Murphy, 42 N. E. Rep. 504 [165 Mass. 66] : 'Considering the nature of the offense, the purpose to be accomplished, the practical methods available for the enforcement of the law, and such other matters as throw light upon the meaning of the language, the question in interpreting a criminal statute is whether the intention of the legislature was to make knowledge of the facts an essential element of the offense, or to put upon everyone the burden of finding out whether his contemplated act is prohibited, and of refraining from it, if it is.’ ”
In the last paragraph of the opinion Judge Shauck says, page 180:
“In the enactment of this statute it was the evident purpose of the general assembly to protect the public against the harmful consequences of the sales of adulterated food and drugs, and, to the end that its purpose might not be defeated, to require the seller at his peril to know that the article which he offers for sale is not adulterated, or to dem'and of those from whom he purchases indemnity against the penalties that may be imposed upon him because of their concealment of the adulteration of the articles.”
The doctrine of this case, at first blush, might seem to be, perhaps, in conflict with the general principles of criminal law, that one could be convicted of an offense where he had no criminal intent or purpose and no knowledge at the time that he was violating a law. But the general rule seems to be, as laid down1 by the Supreme Court, that one who sells food is bound to know that he is not violating statutes for the protection of the public against the adulterating of foods, and as the court say in the concluding paragraph, it was the purpose of the general assembly to require the seller at his peril to know that the article which he offers for sale is not adulterated.
This doctrine of our Supreme Court was by no means new and it has been so held in many states. I will call attention to a few of the cases. In the ease of Commonwealth v. Savery, 145 Mass. 212 [13 N. E. Rep. 611], it is said:
“It is no defense to a complaint for keeping intoxicating liquors with intent unlawfully to sell the same, that the liquors were upon the defendant’s premises by mistake, and he did not know they were intoxicating, if he intended to sell them, and they were in fact intoxicating.”
[679]*679In this case the defendant was a liquor seller; he was not permitted, under .the statute of Massachusetts, to sell beer containing more than three per cent, of alcohol. It was claimed that he sold by mistake' beer containing more than three per cent, of alcohol, without knowledge that it contained more alcohol than the statute permitted; but the supreme court of Massachusetts held that that was no defense; he was bound to know it, “at his peril."
The case of Commonwealth v. Wentworth, 118 Mass. 441, is a case wdiere a man was prosecuted for keeping for sale naphtha under a false name. His defense was that he did not know that the article which he had was naphtha. He supposed that it had none of the dangerous qualities of naphtha, but the court said in that case:
“We are of opinion that the court correctly ruled, that the question whether the defendant had knowledge that the article kept by him was naphtha was immaterial. The statute does not make a guilty knowledge one of the ingredients of the offense. It is like the statutes against the sale of intoxicating liquors, or adulterated milk, and many other police regulations; it prohibits the acts of selling or keeping for sale naphtha ■under any name, not because of their moral turpitude, or the criminal intent with which they are committed, but because they are dangerous to the public.”
The ease of Commonwealth v. Farren, 91 Mass. (9 Allen) 489, was a. milk case. The supreme court of Massachusetts in that case say:
“A person may be convicted of selling adulterated milk, under Stat. 1864, Chap. 122, Sec. 4, although he did not know it to be adulterated, and an averment in the indictment that he had such knowledge may be rejected as surplusage.”
State v. Hartfiel, 24 Wis. 60, was an intoxicating liquor case, and is perhaps in conflict with some of the former decisions of our own Supreme Court in cases of selling intoxicating liquors t’o a minor. The supreme court of Wisconsin holds: . ,
“The sale of intoxicating liquors to a minor is an offense under Sec. 1, Chap. 128, laws of 1861, though the vendor does not know that the purchaser is a minor.”
The evidence in the ease shows that the defendant inquired of the purchaser* his age, and it was represented that the' person was of full age; he was in fact, six feet and one inch in height, and defendant believed in good faith that he was of age. But the supreme court of Wisconsin held that was no defense; that he was bound to know.
It is urged that to hold here that Mr. Williams might be convicted although he had given directions to his clerk not to sell, except in ac[680]*680cordance with the law, would be contrary to the former decisions of the Supreme Court of this state, especially in liquor eases, and particularly the case of Anderson v. State, supra, where it was held by the Supreme Court that that constituted a defense in case of selling liquor. The Supreme Court however in the case of State v. Kelly, supra, seem to have had no difficulty in discriminating between the rules that had been laid down in liquor cases and the rules that ought to be laid down in the case of selling adulterated food. There is this to be said, in liquor cases the law provides that the penalty for a violation of the statutes may be imprisonment, as well as a fine, and a violation of the food statute is punishable by a fine only. It provides that whoever violates any one of the provisions of this statute shall pay a fine of $50. Whether that makes any difference in the rule, it is not necessary to determine. The Supreme Court however in State v. Kelly, supra, hold clearly and positively that lack of knowledge is no defense in a prosecution under this statute for selling adulterated food; and that was as much in conflict with the former holdings of the Supreme Court upon that question in liquor cases, if there is any conflict, as it would be to hold here that a vendor of oleomargarine, who sold it through his clerk, contrary to his instructions, would be liable under this statute, if the clerk did not comply with the law. The Supreme Court has held in several eases of selling intoxicating liquor that want of knowledge is a defense, tracing the doctrine back to the old case of Birney v. State, 8 Ohio 230, where a person was prosecuted for concealing a slave, and his defense was that he did not know that the mulatto was a slave.
In the case of Miller v. State, 3 Ohio St. 475, the Supreme Court held in a liquor case, as stated in the syllabus, as follows:
“To convict for a violation of Sec. 2, it is necessary to aver in the information, and prove on the trial, that the seller knew the buyer to be a minor; and to convict for a violation of Sec. 3, it is necessary to aver and prove, in like manner, that the seller knew the buyer to be intoxicated, or in the habit of getting intoxicated.”
The case of Crabtree v. State, 30 Ohio St. 382, was another case of selling to a person in the habit of getting intoxicated, where it was held that want of knowledge was a defense. This is in the syllabus:
“In prosecutions under Sec. 3 of the 'act to provide against the evils resulting from the sale of intoxicating liquors in the state of Ohio,’ defendant may show, to rebut proof of knowledge, by his own and other persons’ testimony, that shortly prior to the time of the alleged unlawful sale, he made inquiiy of persons well acquainted with the person charged in the indictment as a person in the habit of getting intoxicated, whether [681]*681he was a person in the habit of getting intoxicated; and also show what information he obtained from such persons. His good faith and due care in seeking and obtaining such information, as well as the proper effect thereof under all the circumstances, are to be left with the jury.”
And on page 387 of the opinion, the court quotes from Bishop as follows:
“ 'And when this good faith and this due care do exist, and there is no fault or carelessness of any kind, and what is. done is such as would be proper and just were the fact what it is thus honestly believed to lie, there is no principle known to oar criminal jurisprudence by which this morally innocent person can be condemned because of the existence of a fact which he did not know' and could not ascertain. On the other hand, to condemn him would be to violate those principles which constitute the very foundation of our criminal jurisprudence. Honest error of a fact is as universal an excuse for what would be otherwise a criminal act-as insanity.' ”
And in the case of Farrell v. State, 32 Ohio St. 456 [30 Am. Rep. 614], a liquor case, a man was charged with selling intoxicating liquor, and his defense was that he did not know it was intoxicating liquor: that he bought it under the name of bitters, supposing it was a harmless compound, and that it contained no alcohol, it was so represented and sold to him, he kept it honestly and sold it honestly believing it to be nonintoxicating, just as in State v. Kelly, supra, the party sold the food, believing it to be pure; and the Supreme Court held in that case that that would be a good defense; the second paragraph of the syllabus is as follows:
“A person indicted for selling intoxicating liquors, in violation of the provisions of Sec. 1 of the act to provide against the evil’s resulting from the sale of intoxicating liquors in the state of Ohio, may, on the trial, show that at the time he bought the article alleged in the indictment to be intoxicating. liquor, it was represented to him to be free from alcoholic 'properties — that he bought it with the understanding and believing that it was not intoxicating liquor, and sold it with such understanding and belief.”
The question is discussed at some length, in the opinion. The court say, page 459:
“The accused interposed two defenses: First, that the bitters sold was free ffom alcoholic properties; and, second, that if the bitters did, in fact, contain alcohol, and was intoxicating by reason thereof, he wuis wholly ignorant of such fact; that he bought the bitters upon information [682]*682and in the belief that the bitters was free from alcoholic properties, and sold it free from all intention of violating the statute.”
And further on page 460:
“We are unable to see why the proposed testimony was not competent, The accused’s intention at the tinie of the sale was involved in the issue. It was competent to show that, from the circumstances of the case, he was free from ■ culpable purpose, and one of the circumstances tending to show freedom from guilty intention in the sale was the fact, if fact it proved to be, that he had bought the bitters under the information and belief that it was an article free from alcoholic properties; that he sold it, honestly believing, from information obtained at the time of the purchase, that it was not an intoxicating liquor. We think the testimony would have tended to show good faith and want of guilty intention on the part of the accused.”
I have called attention to these former decisions of the Supreme Court for the purpose of showing that when, they came to construe and interpret this food law in State v. Kelly, supra, they' did not apply those rules, nor any such principles as are laid down in the last case from which I have read. But they held that under the statute which prohibits the sale of adulterated food or drugs, the seller of such articles sold them at his peril; and that the duty was upon him to ascertain whether they were pure or not; although in Farrell v. State, supra, the court held that it constituted a good defense in a liquor case for the vendor to show that he did not know that the article he was selling was intoxicating. The Supreme Court in State v. Kelly, supra, do not follow the doctrine laid down there. The liquor case, Anderson v. State, supra, it is urged should control this .case. The syllabus of (that case is as follows:
“1. Where, in a prosecution for unlawfully selling intoxicating liquor, it appears by the evidence for the state, that the sale was made by the agent of the defendant in charge of the establishment where the liquor was sold, it is competent for the defendant to rebut the presumption of prima facie agency, which the evidence makes against him, by showing that thé sale was, in fact, made without his authority and against his directions.
“&. But the directions to the agent, forbidding the sale, must be in good faith; for, however notorious or formal they may be, they cani have no effect, if they are merely colorable. The fact of agency is to be determined by the real understanding between the principal and agent.”
And in the opinion on page 308, the court say:
“The rule as.to the conclusive effect of the prima facie, or apparent [683]*683authority of an agent, ought not to be applied to the enforcement of a criminal statute where such statute is fairly susceptible of a different construction. The accused, in such case, has the right to rebut the presumption of prima facie agency, which the evidence makes against him, by showing, if he can, that the criminal act was, in fact, committed without his authority and against his instructions.”
To hold that Williams was liable for what his clerk did contrary to instructions would appear perhaps to be in conflict with this decision; but it seems to us that it would be no more in conflict with the holding in that case than the decision of the Supreme Court in State v. Kelly, supra, was with some of the former decisions in liquor cases. But the Supreme Court decided that case without citing or attempting to reconcile the decision with the former decisions of the court in the liquor cases. They there laid down the broad doctrine that these food statutes are'for the protection of the public, and that it is wholly immaterial to the public whether the seller had knowledge that the food was adulterated or not. The statute does not provide against one wilfully and knowingly selling adulterated food, but it provides absolutely against its sale, and the Supreme Court say that the question of knowledge is immaterial, and intimate that to hold otherwise would interfere very materially with the practical enforcement of the statute and say that a court ought, where it can do so, to construe and interpret a statute in such a way that it may be enforced in a manner to carry out the purpose and object of the legislature.
I will refer to another case which tends to support the contention of the plaintiff in error — Barnes v. State, 19 Conn. 398 — in which the court say:
‘‘Where it appeared in such prosecution, that the sale complained of was made by the clerks of the defendant; and he offered evidence to show, that he had given such clerks specific directions to sell no liquors to common drunkards, it was held, that such evidence was admissible.”
I will say that was also an intoxicating liquor case. It was decided by a divided court, two judges of the five, Chief Justice Church and Judge Waite, dissenting from that proposition of the syllabus.
The record in the case at bar shows that Mrs. Heisey, the purchaser of this article, went into Mr. Williams’ store, called “the Adams Street Butter Market,” one evening between nine and ten o’clock; she found a young man behind the counter, dressed as a clerk, with a large apron on; she called for a pound of butter; he went back into the room to a large refrigerator, or some such apartment, and brought out a roll of something that looked like butter. It was a trifle over a pound, very [684]*684little, and he charged her thirty cents for it. The price of oleomargarine at that time was but fifteen cents a pound. It was not stamped nor marked, but was sold to her as butter. The evidence in the case further shows that the oleomargarine was colored to look like butter, in violation of another section of the food laws. This young man was selling goods in the ordinary way. The next morning she undertook to use some of the commodity she had purchased and discovered it was not butter, but oleomargarine. She thereupon complained to the food authorities. The deputy commissioner of the dairy and food department went to the store a few days later, and this same young man was found behind the counter selling goods. The analysis of the article showed that it contained eight per cent, of butter fats, instead of eighty per cent., as required by law.
The defendant testified that this young man had no authority to sell anything. This question, with the other questions of fact, was left to the jury; and there was ample evidence to warrant the jury in finding that he did have authority to sell. The defendant admitted upon the witness stand that he did not reprimand the young man for selling Mrs. Heiscy oleomargarine upon the 'occasion in question; he said that he had a cashier and perhaps one more clerk besides this young man, and offered to show that he had given them all instructions not to sell oleomargarine except in accordance with the statute. Mr. Williams’ testimony sheds .some light on the way this business is earned on, or was in this particular case, at least. According" to his testimony, he purchased this oleomargarine from another person under a contract that the dealer from whom he purchased it would pay all fines and costs that might be imposed upon Mr. Williams, and employ counsel for him m case of trouble, and defend any prosecutions that were commenced against him. While that perhaps does not shed very much light on the question involved here, it indicates that it was contemplated by the parties that there would probably be criminal prosecutions. The evidence shows, as I have suggested, that the oleomargarine was colored, so as to look like butter.
The question is, whether, if it were shown that Williams had given private instructions to his clerks not to sell oleomargarine, except according to law, that would constitute a defense. A majority of the court are of the opinion that it would not, and that this testimony offered was properly excluded. If this oleomargarine was sold by a duly authorized clerk, it was a sale by Mr. Williams, as much as if it had been sold by him. He was engaged in the oleomargarine business, although his place of business was called a “butter market.” He knew, .of course was boi ind to know, what the provisions of this statute were. We think that this [685]*685case is within the principles laid down by the. Supreme Court in State v. Kelly, supra.
When a man offers oleomargarine for sale in his store in the open market, along with butter, or otherwise (an adulterated article of food, the sale of which is prohibited, except upon certain conditions) the duty is imposed upon him to see that the laws of the state are complied with. He may sell it and attend to the matter of sale himself, if he sees fit; but if he prefers to leave it to clerks or others whom he employs, he doe so at his peril; and if the provisions of these sections .of the statute are violated, he must suffer the penalty imposed by law. These provisions axe in the nature of police regulations, enacted as the Supreme Court has-, said, for the protection of the public. This statute should be so construed by the courts as to admit of its practical enforcement. To hold that by private instructions to a clerk a person in the oleomargarine business might escape prosecution or punishment, would go a long way, it seems to us, toward destroying the beneficial effects and purposes of this law. In many cases, such goods are ordered by telephone, and the clerk is not seen ; there is no way of identifying him. We think it is not imposing' an extraordinary hardship upon one who engages in selling adulterated or counterfeit food to require him to see, at his peifil, that the law of the state is complied with. Where the article is sold by his authority, it is not like a case where a party has prohibited his clerks from selling the article at all, or where the clerk without any authority has sold the article, or where some one has come into his store without authority and sold the article. But here is a case where the party is engaged in the business of selling where he intends to sell it, and where his clerks are authorized and employed to sell it.
A paragraph from 3 Greenleaf, Evidence Sec. 21, is in point. I will read a portion of it:
“But where a statute commands that an act be done or omitted, which, in the absence of such statute, might have been done or omitted without culpability, ignorance of the fact or state of things contemplated by- the statute, it seems, will not excuse its violation. Thus, for example, where the law enacts the forfeiture of a ship having smuggled goods on board, and such goods are secreted on board by some of the crew, the owner and officers being alike innocently ignorant of the fact, yet the forfeiture is incurred, notwithstanding their ignorance. Such is also the case in regard to many other fiscal, police, and other laws and regulations, for the mere violation of which, irrespective of the motives or knowledge of the party, certain penalties are enacted; for the law, in these cases, [686]*686seems to bind the party to know the facts and to obey the law at his peril.”
We think in holding as we do, we are following the principles and spirit of State v. Kelly, supra. In the absence of a decision directly in point, we are of the opinion it ought 'to be the law, and we hold it to be the law, that where one engages in a business of this kind, he does it at his peril, and that the duty is imposed upon him to know, that those whom he employes to sell this article to the public, obey the law in the manner of selling it, and in case they do not, that he, as' the principal and proprietor of the establishment, is liable to pay the penalty assessed by the statute. We feel that any other holding would practically destroy this statute and thwart the object and purpose that the legislature had in view. We believe it to be a wholesome law and that it should be construed so that it may be enforced.
The judgment will be affirmed.