Butler v. City Council , 1897 Ga. LEXIS 67 ( 1897 )

Lumpkin, Presiding Justice.

In a trial before the recorder’s court of the city of Augusta, R. J. Butler was convicted of the offense of selling by retail spirituous liquor without a license from the city council. He took the case by certiorari to the superior court, and the question now is whether or not its action in ■overruling the certiorari and affirming the recorder’s judgment was correct.

The record discloses that W. J. Butler was a duly licensed •dealer in spirituous liquors, and that R. J. Buitler was his clerk. The particular sale for the making of which R. J. was convicted was made on the Sabbath day, and had been expressly forbidden by "W". J., his principal. It distinctly appears that in making this sale the clerk acted in direct disobedience of his master’s command. He undertook to set up that the sale was made by him as an employee un•der the license held by his principal. Under the facts recited, this certainly was not allowable. While R. J. might, in a proper case, fairly insist that a sale of liquor by him had been made in the due course of his employment and under the sanction of his employer, either express or implied, and was therefore authorized by the latter’s license, he could not with any degree of propriety or consistency contend that an act done expressly outside of ’his employment, and in direct violation of the authority conferred upon him by his principal, should in any sense be treated as something done by him as agent. As to this particular act, he was no employee at all. If this is not so, then an employee is his employer’s superior. As well might a discharged servant claim that an act done by him was done by virtue of his former employment.

We are not now passing upon the question of the master’s responsibility to the public for the acts of his agent ■ apparently done within the scope of the latter’s agency; nor ■ upon any question which might have arisen if W. J. Butler had been on trial for a violation of a law or ordinance relating to liquor traffic on the Sabbath day. We are merely ■dealing with the agent’s utterly indefensible position that he did, by virtue of the agency, an act which it gave him no authority to do at all. He cannot set up as a defense the very agency the terms of which he himself ignored and repu • •dialed. On the contrary, he should, under the facts of this -case, be held to have acted upon his individual responsibility; and it follows that the judge of the superior court was right in overruling the certiorari and sustaining the conviction.

Judgment ajfvnned.

All the Justices concurring.