
    Westchester County, Respondent, v. Jacob H. Dressner, Appellant.
    
      Public Health Law—practice of pharmaay—repeal of a penal statute— the village of Peekskill is not a ' ‘ rural district ” within section 187 — right of the defendant to show that the unlawful sale was made against his expn'ess directions.
    
    The repeal of a penal statute without any saving clause takes away all right to proceed thereunder for the recovery of a penalty, even though the repeal does not take effect until after verdict.
    Where a person not licensed as a pharmacist sold at retail, on February 9, 1897, Rochelle salts in violation of section 187 of the Public Health Law (Laws of 1893, chap. 661) as it then existed, and pending the trial of the action brought to recover the penalty prescribed by the act for such violation, section 187 was amended by chapter 297 of the Laws of 1897, so as not to apply to the sale of Rochelle salts by retail dealers or merchants, the right to recover the penalty is lost.
    The village of Peekskill, which contains upwards of 12,000 inhabitants, is not a “ rural district ” within the meaning of section 187 of. the Public Health Law, which provides that article 11 .of the act shall not apply to the sale of the usual domestic remedies by retail dealers in the “rural districts,” and declares that the term rural districts shall apply only to small villages and country districts having no store where pharmacy is practiced.
    In an action to recover a penalty for a sale by an unlicensed person in violation of article 11 of the Public Health Law relative to the practice of pharmacy, where it appears that the unlawful sale was not made by the defendant, but by a boy who acted as his clerk, the defendant is entitled to show that the sale was made against his express directions, provided such directions were given in good faith and with an honest intent and desire and with a reasonable •expectation that they should and would be obeyed; such proof is relevant, although not conclusive upon the question of the authority of the clerk to sell.
    Appeal by the defendant, Jacob H. Dressner, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on or about the 7th day of May, 1897, upon. the verdict of a jury directed by the court.
    
      Eugene B. Travis, for the appellant.
    
      Edward H. Burdick, for the respondent.
   Willard Bartlett, J.:

This is an action to recover two penalties of fifty'dollars each, under section 190 of the Public Health Law. The ease was tried on May 7, 1897, and resulted in a verdict and judgment against the defendant for the whole amount claimed, the verdict being directed by the court.

Section 186 of the Public Health Law, as amended and in force since June 4, 1896, provides that no person shall hereafter practice as a pharmacist unless a license has been granted to such person by the State Board of Pharmacy. Section 187, which is contained in the same article of the statute (Art. 11), declares that the term “practice of pharmacy,” when used therein, “means the compounding of prescriptions or of any United States pharmacopasial preparation, or of any drug or poison, to be used as medicines, or the retailing of any drug or poison,” except as provided for in that section. The statute further provides that any person violating any provision of article 11 shall forfeit fifty dollars for every such violation to the county where it occurs, which may be sued for and recovered in the name of the county by the State Board of Pharmacy.

The present action was instituted in the name' of Westchester county under the authority thus conferred by the Public Health Law. The complaint alleges that the defendant has never received a license from the State Board of Pharmacy authorizing him to practice as a pharmacist, and charges him with two violations of the prohibition against the practice of pharmacy by an unlicensed person. The first charge is that on February 8, 1897, at the village of "Peekskill, he sold' at retail a quantity of paregoric; the second charge is that, on the following day, at the same place, he sold at retail a quantity of Rochelle salts. The appeal book does not show when the action was begun, hut, at the time the complaint was verified, on February 26, 1897, it appears to have been unlawful for a - person who was not licensed as a pharmacist to sell Rochelle salts at retail. Between that date, however, and the time of the trial, section 187 of the Public Health Law had been.amended, the amendatory statute taking effect on the 16tli day of April, 1897. (Laws of 1897, chap. 297.) • This amendment made material changes in section 187, which limits the application of article 11 of the -Public Health Law, and that section, as thus amended and in force at the time of the trial, expressly declares that article 11 shall not apply to the sale of Rochelle salts by retail dealers or merchants.

The alteration thus made in the law disposes of the present prosecution so far as it is based upon. the sale of Rochelle salts by the defendant. The repeal of a penal statute, without any saving clause, takes away all right to proceed thereunder for the recovery of a penalty, even if the repeal does not take effect until after verdict. (Butler v. Palmer, 1 Hill, 324; Curtis v. Leavitt, 15 N. Y. 153; Sturgis v. Spofford, 45 id. 446, 452; Victory, etc., Co. v. Beecher, 97 id. 651.)

In regard to the cause of action arising out of the alleged sale of paregoric a different question is presented. Section 187 of the Public Health Law, as in force at the time of the trial and now, provides that article 11 shall not apply to the sale of the usual domestic remedies by retail* dealers in the rural districts. The term “ usual domestic remedies ” is then defined to include' only such remedies as may be safely employed without the advice of a physician, such as paregoric, magnesia, aloes, myrrh and other like preparations. Those limitations would save the defendant from liability for selling paregoric if he could be considered a retail dealer in a rural district; but the term rural districts employed in the statute is declared by the law itself to apply only to small villoges and country districts having no store where pharmacy is practiced. A village of the size of Peekskill, having upward of 12,000 inhabitants, can hardly be regarded as coming within this category.

On this branch of the case, therefore, I think the complaint states' a good cause of action against the defendant. The- trial court, however, erred in excluding certain evidence which he offered to exoneratejiimself from liability and in directing a verdict against him,as the proof stood at the close of the evidence on both sides. There was no pretense that the paregoric was sold by the defendant himself. It was purchased by a woman in the employment of the State Board of Pharmacy, who goes from place to place to detect violations of the Public Health Law. She testified that she bought it a-t the defendant’s store from a boy named Mortimer Wright, with whom- she seems to have had no conversation beyond asking for the drug. The testimony of the defendant himself tended to show that the paregoric was sold against his express instructions by Mortimer Wright, his clerk. “I did not sell or offer the goods in evidence for sale,” he testified, and have not sold, or offered for sale, since I was. notified not to do so in the fall of 1896. I put all that kind of stuff away then that I had on hand, and also instructed the young man, my clerk, and my family not to sell, or offer for .sale, anymore of it, it being against the law.” After this evidence was given the record states that it' was objected to; that the objection was sustained, and that an exception was taken by the defendant’s counsel, from which it may be inferred that the learned trial judge disregarded it when he came to direct a verdict. Further on in the trial he sustained an objection to the following question, which was put to the defendant upon his direct examination: “ Previous to this ' sale, and in the fall of 1896, did you give this boy, your clerk, orders and instructions not to offer for sale, or sell, any of those goods forbidden by statute, and not to sell any of them ? ” The objection to this question was general, and counsel for the defendant duly excepted to its exclusion.

In an action such as this, to recover a statutory penalty, where it distinctly appeared that the alleged violation was committed not by the defendant personally, but by his servant, I think the defendant was entitled to show that the act was committed against his express directions, if such directions were given in good faith and with an-honest intent and desire and a reasonable expectation that they should and would be obeyed. Proof of this kind was relevant upon the issue óf the servant’s,- authority, and although by no means conclusive, was, in my judgment, admissible, and should have taken the case to the jury.

In the case of Verona Central Cheese Co. v. Murtaugh (50 N. Y. 314) the Court of Appeals was called upon to review a judgment in an action brought .to recover statutory penalties for delivering diluted and skimmed milk to the factory of the plaintiff. The act which gave the penalty subjected a person to prosecution only if he Tmowmgfo/ sold or supplied milk of the character mentioned. And it was held that, inasmuch as the design of the statute was to punish an individual only for an intentional violation of its provisions, such violation could not be established except by proof of a delivery of the prohibited milk by the defendant, or with his knowledge or assent or authority. .In delivering the opinion of the court, Allen, J., emphasized the point that it was only a sale of the forbidden milk with knowledge of its real nature that was made penal, saying : “ 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.”

The opinion, however, does not touch upon the effect of an actual prohibition by the master which he meant and expected to have obeyed by his servant; and it was such a prohibition that the defendant in the case at bar sought to establish and have submitted to the jury as tending to prove that his clerk acted wholly without his authority in making the sale of paregoric.

In criminal cases proof of this kind has often been adjudged admissible. (Commonwealth v. Wachendorf, 141 Mass. 270; State v. Wentworth, 65 Maine, 234; Anderson v. State, 22 Ohio St. 305; People v. Utter, 44 Barb. 170.) The case last cited was an indictment against a licensed tavern keeper ■ for selling liquor on Sunday contrary to the Excise Law of 1857. (Laws of 1857, chap, 628, § 21.) The trial judge charged the jury that the defendant would not be liable if he had shown that his agent, in selling on Sunday, had disobeyed his instructions. This portion of the charge was treated as correct by the General Term, which held, however,. that the defendant was entitled to have several other propositions charged which the trial judge refused to adopt. It was said that in order to convict, proof must be made of an intent on the part of the defendant to violate the statute; and that the presumption of his innocence was not overcome merely by proving a: sale on his premises by his barkeeper, unless there was also evidence of some participation, connivance of assent by the defendant. I do not see why an intent to violate the Public Health Law is not just as essential to the maintenance of a penal action against the present defendant as an.intent to violate the Excise Law of 1857 was to a conviction in the Utter case; nor can I perceive any reason why similar proof of an express forbiddance is not evidence which the court is bound to receive as tending to show that the defendant had no part or lot in the transaction.

A. case almost precisely in point is Town of Kirkwood v. Autenreith (21 Mo. App. 73), which was a prosecution for violating an ordinance in selling liquor without a license, and was essentially a penal action, being described as civil in form and not' strictly criminal in character. Here the trial judge had instructed the jury that “if they found that the liquor was sold upon the defendant’s premises, at the dates charged, by a person in the defendant’s employ, they must find for the plaintiff, unless they further find that it was sold contrary to the defendant’s orders and without his knowledge or consent; and that the burden of proof that such orders were given, that they were Iona fide and not colorable, and that the defendant had no knowledge of their violation, was upon the defendant.” The correctness' of this instruction was affirmed upon appeal.

I think a similar rule as to the admissibility of evidence to disprove the alleged authority of the servant making the sale, is applicable in the present case; and that in accordance therewith the defendant should have been allowed to answer the question above mentioned, which was designed to show that he had ordered his clerk not to sell paregoric. I am also of the opinion that even on the evidence which was already in, tending to prove that he had given such instructions, he was entitled to have the issues of fact submitted to the jury. It was, therefore, error to direct a verdict against him.

For these reasons I think the judgment should be reversed and a new trial granted, costs to abide the event.

All concurred.

Judgment reversed and new trial granted, costs to abide the event.  