People v. Kimmel , 32 N.Y. Crim. 308 ( 1914 )

Guy, J.

The plaintiff appeals from a judgment in favor of defendants, entered after a trial by the court, acting without a jury, in an action brought to recover fifty dollars penalty for violation of article XI of the Public Health Law, which (§ 240) provides: “Any person that violates any of the provisions of this article who is not criminally prosecuted, as for a misdemeanor, shall forfeit to the people of the state of New York fifty dollars,” etc.

The evidence shows that defendants’ relief clerk, a registered pharmacist, during the absence and without knowledge of defendants, wrongfully compounded and delivered to a customer of defendants a prescription which called for fifty per cent, of ichthyol, whereas, in fact, the prescription as compounded contained only thirty-eight per cent, of ichthyol; that defendants were partners; that said relief clerk was employed by them to perform duty when neither they nor their regular clerk could be present, and that he had been instructed by defendants to obey the law. .

Section 234 of article XI, subdivision 2, provides that “ Every proprietor of a wholesale or retail pharmacy, drug store or store is responsible for the strength, quality and purity of all drugs sold or dispensed by him.”

Section 235 provides for permission to employ apprentices, and further provides that “ the proprietor, as principal, shall be equally liable for violations of this article by his ■ apprentices or his unlicensed employees.”

Section 237, subdivision 5, provides that a drug is to be deemed adulterated where ‘ ‘ the strength, quality or purity of any article compounded or sold by a druggist differs from the professed' standard of strength, quality or purity under which it is sold.”

Section 240, subdivision 10, provides, among other things, that it shall be a misdemeanor for “ any person to adulterate, misbrand or substitute any drug, knowing or intending that it shall be used, or sells, offers, for sale or causes to be sold any adulterated, misbranded or substituted drug,” or.(subdiv. 11) “ for any person to violate any of the provisions of this article, etc., for which violation no other punishment is imposed.”

Section 240, after providing for the forfeiture of fifty dollars, as before stated, further provides: “ In construing and enforcing the provisions of this article the word ‘ person ’ shall import both the plural and singular and shall include corporations, companies, partnerships, societies and associations and the act, omission or failure of. any officer, agent or other person acting for or employed by any corporation or association within the scope of his authority or employment shall in every case be deemed to be the act, omission or failure of the corporation or association as well as that of the officer, agent, or other person; and that in case of violation of the provisions of this article by a partnership, association or corporation, every member of the partnership or association and the director and general officers of the corporation and the general manager of the partnership, association or corporation, shall be individually liable, and any action, prosecution or proceeding authorized by this article may be brought against any or all of such persons.”

It is contended by the defendants-respondents, and ' it was so determined by the learned trial court below, that the failure to include the word “ partnership ” in the clause providing that the act, omission or failure of any officer, agent or other person acting within the scope of his authority shall be deemed to be the act of the corporation or association, indicates an intent on the part of the legislature that only corporations and associations shall . be held liable for the acts of their authorized agents, and that members of a partnership shall only be punishable as for á misdemeanor for an intentional violation of the law, and can not be held liable as for a penalty for any violation of the statute by a registered pharmacist in their employ, committed without their knowledge or specific authorization. In this construction of the statute I am of the opinion that the learned court erred. Such a construction would, in effect, nullify the statute, so far as the punishment of partners by penalty for the acts of agents is concerned.

The statute must be read as an entirety and with regard to the purpose for which it was enacted. The construction placed upon the amendment to section 240 is entirely at variance with the provision contained in section 234 that every proprietor of a drug store “ is responsible for the strength, quality and purity of all drugs sold or dispensed by him ” and with the general purpose of the statute, i. e., to prevent the selling or compounding and dispensing by prescription of adulterated drugs — drugs that differ in strength, quality and purity from the professed standard under which they are sold. Under the statute as it stood before the amendment of 1910, every proprietor of a drug store would have been liable individually, or as a partnership, to punishment by penalty for every violation of the statute on the part of themselves or their employees. The purpose of the amendment of 1910 was not to limit the scope of the act but to make it more definite and certain as to proprietors acting as a corporation or association. It is inconceivable that the legislature intended, in a measure designed for the protection of the public health, to create a privileged class, in the form of a partnership, which might violate the statute with impunity so far as the imposition of a penalty is concerned. It is not necessary to consider here whether members of a partnership can, under the amended statute, be punished as for a misdemeanor for acts of their licensed clerks, committed without their knowledge or specific authorization. Section 240 provides for the imposition of a penalty as to all violators of the statute who “ are not criminally prosecuted, ’ ’ whether liable to such prosecution or not. The defendants herein have not been criminally prosecuted ; the violation complained of was committed by their' agent acting within the scope of his authority. No general direction given by them to their agent that he should “ obey the law ” could relieve them, under the statute, for responsibility for his acts so far as the penalty provision is concerned. The general rule that criminal intent is the essence of the crime does not apply to an act which is simply malum prohibitum. People v. Werner, 174 N. Y. 132; People v. Snyder, 90 App. Div. 422; People v. D’Antonio, 150 id. 109; Cullinan v. Burkhard, 93 id. 31.

The judgment must, therefore, be reversed and judgment directed in favor of plaintiff for the amount of the penalty, with costs of appeal and costs in the court below.

Bijub, J., concurs.