A town school trustee's election is invalid where he has received the vote of but one of a board of town trustees property consisting of three members, one of the three having resigned and another refusing to vote.

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. I am of the opinion that his election is invalid. No statute prescribes the number constituting a quorum of the town board, or the proportion of the quorum which can transact business; hence the common law rule applies, which is thus ex- pressed by a recent authority: "Unless there be some special provision by charter or law to the contrary, the common law rule as to quormms and majorities of bodies of definite number obtains with reference to city councils. That is to say, a majority of the whole number must be present to constitute a legal quorum; and a majority of that quorum is necessary to do any valid act." 1 Smith on Municipal Corps., §504; also §§294, 300; 1 Dillon on Munic. Corps., §279; Rushville Gas Co. v. Rushville, 101 Ind. 206. ANDERSONVILLE MONUMENT COMMISSION-EMPLOY- MENT OF MORE THAN ONE MEMBER FOR SPECIAL SERVICE-COMPENSATION-COMPETITIVE BIDS. July 19, 1907. Hon. James P. Goodrich, Winchester, Indiana: Dear Sir-Certain questions submitted in your favor of July 16th will be answered in the order of presentation: (1) "Under section 1 of the act of 1907 (Acts 1907, p. 361) have the Andersonville Monument Commission the right to em- ploy more than one of their number to perform any service re- quired of them by the statute for which compensation may be paid ?" Section one reads: "Nothing in this act shall prevent the commission from employing one or more of .their members, when desirable, to perform services for which they may lawfully contract: Provided, however, That one of their members can only be employed by contract in writing with the consent and ap- proval of the governor indorsed thereon." My construction of this section is, that the proviso does not limit the number of those who may be employed, but the manner of their employment. The language is not "only one of their number can be employed," but, "one of their members can only