The proprietor of a store is responsible for the sale of adulterated or misbranded foods.

them; while the male inhabitant over fifty years of age would only pay 50 cents poll tax. Such a construction would not be in conflict with said section relating to poll tax, but it would not be in harmony with said sec- tion. This construction, however, would be in conflict with sec- tion 2 of the act of 1905 above referred to, since the provision of that section is that every officer and enlisted man of the active militia shall be exempt, and such a construction would have the effect of repealing by implication this provision of said last named section as to the 50 cents poll tax specified in said act of 1907; otherwise we would have the anomalous condition of the male in- habitants of the state over fifty years of age paying this 50 cents poll tax and the officers and enlisted men in the active militia exempted. It is my opinion that the language "legal voter" in this sec- tion means each poll taxable person twenty-one years of age, as defined by section 8409 and section 2 of the act of 1905 above re- ferred to, and that it does not create a new class, or in any sense repeal section 2 of the act of 1905, and that therefore the male in- habitants of this state fifty years of age and over, and the officers and enlisted mci of the active militia of this state, are exempt from the payment of the poll tax provided for in said section 1 of the act of 1907. " FOODS AND DRUGS-PROPRIEOR OF STORE RESPONSI- BLE FOR SALE OF ADULTERATED OR MISBRANDED FOODS, ETC. July 16, 1907. Prof. H. E. Barnard, State Food and Drug Commissioner, State House, City: Dear Sir-Replying to your recent request for authorities upon the general proposition that where adulterated or misbranded foods are sold at the store of a proprietor in the natural course of business, be himself is liable under the statute, although the actual sale was made by a clerk who, at the time of the trans- action, was regularly employed by the proprietor to sell goods contained in such store, I submit the following: In Meyer v. State, 54 Oh. St. 242, it was held that the man- ager of a corporation who sent a traveling salesman into a par- ticular county to sell the company's goods, viz: catsup, was liable under a penal statute for sales of impure catsup, con- ducted by such salesman, to the same extent as if the manager was himself present. On page 244 the court say: "The statutory provisions governing these cases (Re- vised Statutes, section 8805, et seq., section 8841 et seq., Giauque's 7th E.) do not exempt any one who sells or offers to sell the articles prohibited, because of his relation to the transaction, whether it is that of agent or principal. As they prohibit both the selling and the offering for sale they do not require or permit the application of technical rules to determine at what point the title passes from the vendor to the purchaser. By their titles and provisions they dis- close the purpose of the general assembly to prevent the sales of the articles described, and to accomplish that pur- pose by imposing penalties upon all who sell or offer them. The agent is within the terms of the statute because he personally participated in its violation: and the principal is responsible for what he does by another. Any other construction of the statute would afford an easy method for defeating its purpose; and it would extend to those who are likely to know of the adulteration of the article sold immunity from the penalty which is imposed upon others who have not such knowledge." In State v. Bockstruek, 136 Mo. 335 (38 S. W. 31-7), in a prose- cution for the sale of oleomargarine, the court say : '."The fact that the sale in question was made by a young clerk of defendant's, made out against defendant a prima facie case, inasmuch ds the sale occurred in defend- ant's store in apparently the ordinary course of business. If the sale was made against the order of the owner, this was matter of defense." In Verona Central Cheese Co. v. Murtaugh. 50 N. Y. 314. 31.7, the court hold: "It is not the act of selling, supplying or bringing to the factory the milk condemned by the law, that gives the penalty. If so, it would be immaterial whether the owner and proprietor sold or brought the milk in person or by his servants, or the agency of third persons. The act might be regarded as the act of the principal, and he made liable, although done without his personal knowledge or intervention." 250 In Williams v. State, 25 Oh. Circuit Court, 673, affirmed by the supreme court of Ohio in 69 Ohio State 570, it was held in an extensive and able opinion, that one who engages in the business of selling oleomargarine to the public and permits and author- izes its sale by his clerks, is bound to see that the law regulating its sale is complied with, and if it is violated by such clerks, the employer is liable under the statute. In the course of their opinion the court declare: "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 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 does so at his peril ; and if the pro- visions of these sections of the statute are violated, he must suffer the penalty imposed by law. These provisions are in the nature of police rdgulations, enacted as the su- preme 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 in- structions to a clerk a person in the oleomargarine busi- ness 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 impos- ing an extraordinary hardship upon one who engages in selling adulterated or counterfeit food to require him to see, at his peril, 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 au- thorized and employed to sell it. ' 1 "We think in holding as we do we are following the principles and spirit of State v. Kelly, supra. In the ab- sence of a decision directly in point, we are of the opinion 251 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 Anou that those whom he employs 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 es- tablishment, 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 whole- some law and that it should be construed so that it may be enforced. The judgment will be affirmed." In numerous liquor cases, saloon keepers have been held not to be criminally responsible for illegal sales by their bartenders, unless they had knowledge of the sale, especially where the sale is made contrary to orders. The analogy of these decisions seems opposed to the foregoing. But in the case of the sales of liquor to minors or at unlawful hours, the real offense is not the sale of liquor, but the sale under circumstances which render the trans- action unlawful. These circumstances being peculiarly within the knowledge of the agent and not necessarily or probably known to the employer, it is reasonable to require some knowledge of these circumstances to be brought home to the proprietor. But if the thing sold is not, under the statute, a legitimate article of commence, and where it is a part-of the stock in trade, the infer- ence is strong that the proprietor must have known his own stock and must have understood the character of the article he pur- chased for resale. By placing it among other articles to be sold, it thereby becomes particeps criminis, whether he actually sells to the customer, or acts by an agent. SCHOOL TRUSTEE-WHO HAS RECEIVED VOTE OF BUT ONE OF BOARD OF TOWN TRUSTEES PROPERLY CONSISTING OF THREE MEMBERS. July 17, 1907. Hon. Fassett A. Cotton, Superintendent of Public Instruction: Dear Sir-Your favor of the 16th inst. asks whether a town school trustee has been duly elected who has received the vote of but one of a board of town trustees properly consisting of three members, one of the three having resigned and another refusing to vote.