
    Commonwealth, Appellant, v. Jackson.
    
      Argued April 14,1941;
    reargued May 2,1941.
    Before Keller, P. J., Cunningham, Baldrige, Stadteeld, Rhodes, Hirt and Kenworthey, JJ.
    
      October 6, 1941:
    
      Frank E. Coho, Deputy Attorney General, with him Ruth Forsht, Special Deputy Attorney General, and Claude T. Reno, Attorney General, for appellant.
    
      Bresci R. P. Leonard, for appellee.
   Opinion by

Hist, J.,

Defendant, a milk dealer in Allegheny County, was charged with a violation of section 807 of .the Milk Control Law, the Act of April 28, 1937, P. L. 417, 31 PS 700j. Prom the transcript of the alderman it appears that, at the hearing in a summary proceeding, an investigator for the Milk Control Commission testified that on November 22, 1939 ¡he went to defendant’s farm and asked him where he could buy milk. Defendant directed him to his dairymaid. She sold him one gallon of fluid milk for 30 cents contrary to General Order No. A-39 of the Milk Control Commission then in force fixing the minimum retail price applicable to the transaction at 40 cents a gallon. There was corroboration of this witness by another investigator who was present. Defendant offered no testimony. He was found guilty as charged and was sentenced to pay a fine of $25 with jail imprisonment for ten days as an alternative. On certiorari the lower court, in the absence of a record of testimony that defendant had instructed his servant to sell milk below the price fixed by law or that he had knowledge of the illegal sale, considered “the act of the dairymaid......voluntary and uncontrolled,” reversed the judgment and discharged the defendant. The Commonwealth appealed.

In general, under the common law, one is not liable for the criminal acts of another in which he did not participate directly or indirectly. 14 Am. Jur., Crim. Law, §63; 2 Am. Jur., Agency, §383; Com. v. Johnston, 2 Pa. Superior Ct. 317. But the common law rule has no application here. The offense was made so purely by statute and whether the penalty may be imposed, without direct proof of the master’s knowledge or assent, therefore, becomes a question of statutory construction. We cannot agree with the lower court that the transcript does not sustain the conviction merely because it fails to show that defendant was charged with knowledge of his servant’s illegal act. “Guilty knowledge or guilty intent is, in general, an essential element in crimes at the common law” but, “whether a criminal intent, or a guilty knowledge, is a necessary ingredient of a statutory offense, is a matter of construction,” to be determined “from the language of the statute, and in .view of the manifest purpose and design of the same”; Com. v. Weiss, 139 Pa. 247, 21 A. 10. Intent need not be shown to support a conviction under a valid statute in the exercise of police power. Com. v. Zasloff, 137 Pa. Superior Ct. 96, 8 A. ¿2d 801. In the Weiss case the defendant who sold oleomargarine in ignorance of the fact, was held liable for the penalty imposed by statute. In Com. v. Liberty Prod. Co., 84 Pa. Superior Ct. 473, in which numerous cases are collected, it is said: “a mistake or omission, even though an innocent one, made in the line of his employment by an employee charged with the doing of something required to be done in order to render that lawful which otherwise, by a police regulation, would be unlawful, entails upon his employer responsibility for the illegal act resulting therefrom and subjects it to the penalty provided for such illegal act, unless the statute in terms limits it to wilful and intentional violation,” quoting the rule in 3 Greenleaf on Evidence, §21, “Where a statute [in the exercise of police powers] commands that an act be done or omitted, which, in the absence of such statute, might have been done or omitted without culpability, ignorance of the fact or state of things contemplated by the statute, jit seems, will not excuse its violation.” The reason for the rule is indicated by Chief Justice Cooley in People v. Roby, 18 N. W. 365, (Mich.), quoted with approval in the Liberty Prod. Co. case, in this language: “Many statutes which are in the nature of police regulations, as this is, impose criminal penalties, irrespective pi any intent to violate them, the purpose being to require a degree of diligence for the protection of the public which shall render violation impossible.” See also, Com. v. Miller, 131 Pa. 118, 18 A. 938.

When defendant indicated to the purchaser that his dairymaid ,was in charge of sales he not only Recognized her as his sales agent but became responsible for her acts. In an action involving the violation of a statute of this kind, “A principal is p#ima facie liable for the illegal acts of an agent done in a general course of illegal business authorized by the principal......A master, also, may be liable for the negligence of a servant whom he negligently appoints or negligently controls. But it is otherwise if the agent be without authority, express or implied, and the act be out of the range of the agent’s business, and against the principal’s express and bona fide commands”: 1 Wharton Criminal Law, 12th Ed., ,§287. The unlawful sale by the servant or agent is prima facie evidence of assent thereto by the master or principal and will impose liability unless rebutted. Com. v. Park & Reed, 1 Gray 553, (Mass.); Com. v. Nichols, 10 Met. 259, (Mass.). The same rule was applied in Com. v. Johnston, supra, p. 332 where we held that it was for the defendant to prove that the unlawful sale by his employee was contrary to his express orders. See also Com. v. Scott-Powell Dairies, 128 Pa. Superior Ct. 598, 194 A. 684; Com. v. Newhard, 3 Pa. Superior Ct. 215.

An examination of the Milk Control Act in the light of its purpose discloses a legislative intention to charge. a milk dealer with the duty of such care in the management of his ^business and the control of his servants that only a disregard by the servant of positive orders of the employer will relieve him from the penalty of §807. He cannot hide behind his own negligence and thus nullify the statute. Other sections of the act, imposing other duties, e. g., §§401, 608, specifically provide that proof of guilty knowledge or intent is essential to impose liability for failure to perform them. If it were the intention of §807 to relieve a proprietor except upon proof of his knowledge of sales, below the price fixed by law, the legislature would have said so. The omission is significant. From a practical viewpoint, actual knowledge of a principal would be difficult to prove except by the circumstances; what secret instructions were given could not, by any means, be shown.

The remaining questions raised by appellee call for little comment. The provision of our constitution, Art. 1, §9, guaranteeing the right of trial by jury “in prosecutions by indictment or information” has no application to summary proceedings pursuant to an act passed in the proper exercise of the police power. “The guarantee of trial by jury does not extend to all offenses, but is restricted to such offenses as had been established prior to the adoption of the Constitution. Summary convictions were well known before the formation of the Constitution, and they are not expressly or impliedly prohibited by that instrument except insofar as they are not to be substituted for a jury, where the latter mode of trial had been previously established”: Com. ex rel. v. Heiman, 127 Pa. Superior Ct. 1, 190 A. 479, citing numerous cases in support of the rule. See also authorities collected in Purdon Pa. Constitution, Note 35, p. 135.

Defendant’s discharge cannot be justified on the ground, as contended by appellee, that the price fixed by the order of the commission is unreasonable and that we may take judicial notice that it is so. Establishing a. minimum retail price of milk is a valid exercise of the police power. Rohrer v. Milk Control Board, 322 Pa. 257, 188 A. 338. Whether the commission violated the Constitution by exceeding the bounds of reasonableness, in establishing the selling price of milk, is a question which should have been raised at the hearing before the commission or by an appeal from that order. Without an appeal, as provided by the statute, the order became final and the reasonableness of the rate cannot be questioned collaterally. Com. v. Ziegler Dairy Co., 139 Pa. Superior Ct. 224, 11 A. 2d 669.

Order reversed and the judgment of the alderman reinstated.

Dissenting Opinion by

Rhodes, J.:

I am obliged to dissent from the conclusion reached by the majority, as I feel that it is contrary to a fundamental principle of criminal law. In my opinion section 807 of the Act of April 28, 1937, P. L. 417, 31 PS § 700j — 807, in force at the time the alleged offense was committed, does not embrace the facts in this case. The conviction of defendant can be upheld only upon the theory that he is criminally responsible for the act of his dairymaid wrhen she sold a gallon of milk for 30 cents, whereas the order of the Milk Control Commission established the price at 10 cents per gallon. The record does not, disclose that defendant directed, or in any way participated in, this sale at a price below the minimum set by the commission. We have repeatedly recognized the common law rule that generally a principal cannot be held criminally responsible for the unlawful acts or representations of his agent, though committed in connection with the principal’s business, unless it appears that he in some way participates in, countenances, or approves the criminal acts of his agent or representatives. 21 R. C. L., Principal and Agent, § 113, p. 934; Com. v. Johnston, 2 Pa. Superior Ct. 317, 332, 338, 339; Com., for use, v. Ohio & Pennsylvania, Railroad Co., 1 Grant’s Cases 329, 350, 352; State v. Woolsey et al., 80 Mont. 141, 259 P. 826, 833. The civil doctrine, qui facit per alium, facit per se, has no application to criminal law; the mere fact of agency, standing alone, is insufficient to impose criminal liability upon the principal, even though the acts of the agent were done in the course of his employment. 16 C. J. p. 123; 22 C. J. S., Criminal Law, § 84 (a).

While it may be conceded that the legislature may by statute provide for the criminal responsibility of tbe principal for the illegal acts of bis agent (21 R. C. L., Principal and Agent, § 114, p. 935), tbe statutory law of tbe state, in my judgment, cannot properly be construed as having imposed it in tbe present case. Such legislative intention must be evidenced not by implication but by clear expression wbicb leaves no reasonable doubt. McDonald v. Hearst, 95 F. 656, 658. See, also, Com. v. Junkin et al., 170 Pa. 194, 203, 32 A. 617; Com. v. Johnston, supra, p. 337.

•As I view it this is not a question of tbe construction of a statute to determine whether tbe legislature forbids the commission of an act regardless of tbe doer’s intent or knowledge, but rather tbe interpretation of a statute to determine whether the principal is to be held criminally liable for the commission of an offense by an agent. See Com. v. Johnston, supra, p. 334. In my opinion, section 807 of tbe Milk Control Law, 31 PS § 700j — 807, prior to tbe amendment by tbe Act of July 24, 1941 (No. 177), did not impose this criminal liability, and cannot be so construed. Without going beyond tbe words of tbe section, I think tbe use of tbe phrase “it shall be unlawful for a milk dealer or producer to sell or buy......milk at any price below tbe minimum ......” is determinative in tbe present situation. It would require clear and unequivocal language to convince me that tbe legislature intended by this section to take tbe present situation out of tbe common law rule. No such clear and unequivocal statutory language exists, and nowhere in tbe section or elsewhere was reference made to agency. Laws wbicb create punishable offenses ought to be explicit so that all may know what they prohibit, and what conduct will render one liable to punishment. Com. v. Zaslof, 338 Pa. 457, 464, 13 A. 2d 67, 128 A. L. R. 1120. It is to be expected that there may be a difference of judicial opinion as to bow far under the designation of tbe common law acts can be held by tbe courts to be criminal when not so characterized. in the Penal Code of this state, hut to me there is no justification for any court to unduly extend the scope of a statute by judicial construction, and impose criminal responsibility even if convinced that it should have reflected in its terms that which it does not. “Law as a guide to conduct is reduced to the level of mere futility if it is unknown and unknowable.” The Growth of the Law (1924) p. 3. Cardozo.

It is not a question of what the legislature might have said but what it did say. The statement in the majority opinion that if a principal or proprietor was to be relieved from the acts of his agent or servant except upon proof of knowledge the legislature would have said so is untenable. On the contrary, if the legislature had intended that a principal was to be made criminally liable for the acts of his agent, it would have said so. By the Act of July 24, 1941, it has amended section 807 of the Act of 1937, 31 PS § 700j — 807, and said that violations of the statute by the agent shall be deemed the acts of the principal. The Act of 1941 and contemporary legislation support the view that the legislature never intended the result reached in the majority opinion. The amendatory Act of June 1, 1937, P. L. 1127, § 1, 31 PS § 1, provides: “It shall be unlawful for any person, firm ......, by himself, herself, itself......, or by his, her, its, or their agents, servants, or employes, to manufacture, sell, offer for sale, expose for sale, or have in possession with intent to sell, any article of food which is adulterated or misbranded within the meaning of this act.” By section 602 of the Pennsylvania Liquor Control Act, as last amended by the Act of June 16, 1937, P. L. 1762, § 1, 47 PS § 744-602, there are 30 prohibitions detailed under the heading of illegal acts. In some instances the legislature says it shall be unlawful for any person, by himself, or by an employee or agent, etc., to do certain things. See, also, Public Utility Law of May 28, 1937, P. L. 1053, § 1301 (a), 66 PS § 1491 (a). Prom these clear expressions it appears, and it is reasonable to presume, that the legislature did not here intend to impose criminal responsibility upon a principal for the acts of his agent beyond the common law rule except in instances where it expressly so stated.

There is not here involved an absolute prohibition or suppression of a business which statutes have declared from time to time, such as the manufacture of oleomargarine, or the manufacture and sale of intoxicating liquors, or adulterated foods (Act of June 1,1937, P. L. 1127, § 1, 31 PS §1). The milk business is a legal business, and is not in the same category as the liquor business or the selling of adulterated foods. It is only the sale of wholesome milk at a price below that set by the commission that is prohibited. To say that it was the legislative intent to place the burden of proof upon a milk producer or dealer in a criminal action to establish that his agent disregarded his positive orders is to read into section 807 something which did not exist, and the result is judicial legislation. Reference is made in the majority opinion to sections 401 and 608 of the act, 31 PS §§ 700j — 401, 70Qj — 608, wherein knowledge or intent must be proved as part of the evidence under those sections. The argument made is that by inference those elements were not required under the present section. The conclusion sought does not logically follow the premise, as this criminal prosecution was not instituted because defendant as an actual violator, independent* of his intent or knowledge, personally offended section 807 of the act. Moreover, the legislature by the Act of 1941 has now specifically provided that knowledge is unnecessary whether the sale is made by the principal himself or through another.

The Commonwealth urges that public policy demands the conclusion reached by the majority. But it is not our function to engraft on a statute additions which the legislature might have made. Statutes creating crimes are to be strictly construed in favor of the accused (Com. v. Duane, 1 Bin. 601, 608, 2 Am. Dec. 497; Com. v. Baker, 115 Pa. Superior Ct. 183, 186, 175 A. 438; Statutory Construction Act, 1937, P. L. 1019, § 58, 46 PS § 558); statutes in derogation of the common law enacted prior to the Act of May 28, 1937, P. L. 1019, § 58, 46 PS § 558, are similarly construed and only such modification adopted as the statute clearly and definitely prescribes (Com. v. Hubbs (No. 1), 137 Pa. Superior Ct. 229, 239, 8 A. 2d 611). Penal statutes may not be held to extend to cases not clearly covered by the words used. United States v. Katz et al., 5 F. 2d 527, 528, affirmed, 271 U. S. 354, 46 S. Ct. 513, 70 L. Ed. 986; Com. v. Lanzetti et al., 97 Pa. Superior Ct. 126, 128. They should not be enlarged by implication; there are no constructive offenses. United States v. Resnick et al, 299 U. S. 207, 210, 57 S. Ct. 126, 81 L. Ed. 127.

I do not agree that every unlawful sale by an agent is prima facie evidence of assent thereto by the principal, and imposes liability unless rebutted. Certainly this is not the general rule as to criminal liability. To sustain the proposition the majority opinion cites Com. v. Park and Reed, 1 Gray (Mass.) 553 (1854), Com. v. Nichols, 10 Met. (Mass.) 259 (1845), and Com. v. Johnston, supra. The Massachusetts cases involved sales of spirituous liquors without a license. In Com. v. Nichols, supra, it was held that a sale of spirituous liquor, prohibited by law, at the shop of the principal by an agent usually conducting his business, the liquor being owned by the principal, was properly classified as belonging to that group of cases which holds that such a sale is prima facie evidence of a sale by the principal, and, if unexplained, is sufficient to convict the principal. The Massachusetts court recognized that classification, into which the Nichols case was placed, as an exception to the general rule, and said (p. 260) : “There must be a direct participation in the act, or such assent and concurrence therein, as would involve him morally in the guilt of the action. Hence the cases are comparatively rare, and may be considered as exceptions to the general rule, where by legal rules a party is charged criminally for acts of his servant done without his knowledge and assent.” In Com. v. Park and Reed, supra, the only question involved was whether there was a variation between the allegata and probata. It was held that it was not necessary to allege in the indictment that the sale was by the defendant through his servant’s agency.

In the Nichols case the defendant owned the liquor which he had no right to sell. In the present case sale of the milk was obviously legal. It cannot be assumed that a principal, who authorizes a legal and proper act to be done by an agent, is responsible for a criminal act done by an agent while performing the legal and proper one, unless necessary and natural for the performance of the legal act. The present facts warrant no assumption that there is prima facie evidence that defendant authorized the illegal, as well as the legal, acts of his agent.

It is stated in the majority opinion that we held in Com. v. Johnston that it was for the defendant, who was a druggist, to prove the unlawful sale by his employee was contrary to his express orders. Defendant had been indicted and tried under section 15 of the Act of May 13, 1887, P. L. 108, for selling liquor without a license. Section 16 made certain exceptions relative to the sale of intoxicating liquors by druggists. The defendant sought to introduce evidence that the illegal sale was contrary to his orders and without his knowledge. The offer was refused, and the trial judge instructed the jury that it was immaterial. The defendant was convicted. The question raised as stated by this court was whether a man can be convicted of a crime perpetrated by his agent in doing an illegal act which he had been specifically ordered not to do by his principal. The judgment was reversed and a new trial awarded. We held that the evidence should have been admitted, and that the instructions were erroneous. This case is distinguishable from the instant case as the defendant had in his possession for sale spirituous liquors, the selling of which was generally prohibited. He attempted to excuse himself and defend as a druggist under the sixteenth section, and if he had kept within the provisions of the latter section his defense would have been good. Otherwise he could be convicted as any other unlicensed person for selling liquor without a license. The opinion stated the general rule as follows (p. 332) : “Ordinarily the principal is not held criminally responsible for the acts of his servant or agent unless he in some way participates in, countenances or approves the criminal act of the agent, nor can a principal be held criminally liable for the act of his agent in opposition to his will and against his orders.”

We still have in all criminal cases a presumption of innocence which remains with the accused until proved guilty beyond a reasonable doubt. When the Commonwealth has submitted sufficient evidence to show all the elements of the crime with which the accused is charged, a prima facie case is made against him. The presumption of innocence in favor of defendant is then sufficiently met to take the case to the jury. But mere proof of agency or an isolated sale by the agent is here insufficient. It may be that an agent would hardly undertake to sell in his employer’s establishment without some authority; but it is obviously much more likely that an agent employed- to make lawful sales would occasionally go beyond his authority than he would in a wholly unauthorized business. In Hazleton Coal Co. v. Megargel, 4 Pa. 324, at page 329, it is said:

“Nor does any presumption of the company’s guilt arise from the act of its officer; for while the presumption of law, on the one hand, is that the officer did no more than his duty, the presumption of innocence on the other is, that the company did not instruct him to violate the law.” Mr. Justice Black, in Com. v. Ohio & Pennsylvania Railroad Co., supra, 1 Grant’s Cases 329, at page 350, said: “A servant of the corporation who does an act forbidden by law, is responsible for it in his own person; and the corporation is not presumed to have given him any authority for such an act.”

As the statute before amendment provided for a penalty against the milk dealer or producer when an actual violator, it would be contrary to fundamental legal principles to extend it by judicial interpretation to embrace the present situation by implication. There is no end to the possible results of a doctrine which permits this to be done.

I would, therefore, affirm the order of the court below, and discharge defendant.

Cunningham and Stadteeld, JJ., join in this dissent. 
      
       Sections 801 and 802 of the act prescribe the procedure and impose the duty upon the commission of fixing minimum and maximum wholesale and retail prices. The first paragraph of section 807 provides: “After the commission shall have fixed prices to be charged or paid for milk, whether by class, grade, use or otherwise, it shall be unlawful for a milk dealer or producer to sell or buy, or offer to sell or buy milk at any price below the minimum price applicable to the particular transaction.” Section 1001 provides the penalty “upon conviction thereof in a summary proceeding.”
     
      
       The amendment of §807 by the Act (No. 177) of July 24, 1941, specifically imposing legal responsibility on the milk dealer for the act of his employee, in our view, is no more than a clarifying expression of legislative intent implied in the former act.
     
      
       See note 4, Com. v. Kramer, 146 Pa. 91, 22 A. 2d 46.
      
        Section 30 of the Act of July 24, 1941 (No. 177), which amended section 807 of the Act of April 28, 1937, P. L. 417, 31 PS § 700j — 807, provides, inter alia, that “it shall he unlawful for a milk dealer or handler or producer......, knowingly or unknowingly, or any other person knowingly, iby himself or through another, to sell or deliver," etc., and that "The act of a director, officer, agent or other person, acting for or employed by a milk dealer shall be deemed the act of such milk dealer.”
      
     