Verona Central Cheese Factory v. Murtaugh

By the Court Johnson, J. The' question before us- is* whether the case ought to have been submitted to the jury. The judge at the. circuit refused to. submit the case, to the jury, [21] on the ground that the evidence was insufficient to warrant a verdict against the defendant. The defendant was one of the plaintiff’s patrons, and furnished milk to the factory, with several other patrons. The action was brought to recover several penalties given by the 'act of 1865. (Sess. Laws of 1865, chap. 361.) The complaint in several counts charged that the defendant, on several occasions, in several months specified, in the year 1867, knowingly brought and supplied to said cheese factory milk mixed with water, milk from which the cream had been skimmed, and milk from which the strippings had been kept back and retained by defendant. The testimony is clear and uncontradicted that the defendant’s wife, son and daughters, who had charge of the milking of defendant’s cows, and preparing the milk for the factory and sending the same there, were guilty, knowingly, of the several acts charged in the complaint; but there was no evidence to show that the defendant had any personal knowledge of the wrongful acts of the wife and children. The statute provides that, “ whoever shall knowingly sell, supply, or bring to be manufactured, to any cheese manufactory in this State, any milk diluted with water, or in any way adulterated, or milk from which any cream has been taken, or milk commonly known as skimmed milk, or whoever shall keep back any part of the milk known as strippings,” &c., “ shall, for each and every offence, forfeit and pay a sum not less than twenty-five dollars, nor more than one hundred dollars, with costs of suit,” &c. It is argued on behalf of the plaintiff that the jury would have been justified in finding, from the relation of the persons who did the wrongful acts complained of to the defendant, and the manner in which the business of furnishing milk was carried on by him, through these persons, that he had knowledge of what they were doing. It is also claimed that the knowledge of the servants by whom the wrongful acts were done was, prima facie, evidence of knowledge on the part of the defendant, and that the law will impute such knowledge to him, unless he proves the contrary; that the [22] burden is cast upon him of disproving knowledge where' his servants, in the course of their employment, have habitually practiced the wrongful acts charged. The statute imposes the penalty upon the person who shall “ knowingly sell, supply, or bring to be manufactured,” milk in the improper condition specified. The action, being for the penalty inflicted for the forbidden act, is to be construed strictly, and not liberally or equitably. The term “knowingly,” in an action like this, must undoubtedly be held to mean actual personal knowledge. The statute imposes the penalty, not against the owner of the milk, as such, but against every person, and all persons, who shall knowingly either sell, or supply, or bring to be manufactured, milk in that condition. The term “knowingly” was used to designate the persons upon whom the penalty should be imposed; and it is not to be enlarged or extended so as to meet any supposed mischief which the statute was intended to guard against and prevent. There is a class of cases where the law imputes knowledge to the principal, of the fraudulent acts and conduct of his servants, because he is benefited-thereby, and takes the fruits of the fraud or other wrong-doing. The law compels him, in such cases, to adopt the instrumentalities, for the purpose of charging him with the injury by which he has been benefited. But this rule does not apply in penal actions. In such cases we are to see what the statute is, and are not at liberty to go beyond it, or to extend it by construction. When the statute says, knowingly, we cannot impute knowledge, or allow it to be inferred, because others knew, who were in the service of the party charged. The plain intention of the statute is to mulct the party doing the wrongful act with guilty knu vledge, and no one else. Perhaps the best and most lucid exposition of the rule in actions for penalties to be found in the books is that laid-down by Chief Justice Marshall in United States v. Wiltberger (5 Wheat., 76). The rule, he says, that penal laws are to be construed strictly is founded on the tende. ness of the law for the rights of individuals, and on the plain \ In [23] eiple that the power of punishment is vested in'the legislature, and not in the judicial department. It is the legislature, and not the court, which is to define a crime and ordain its punishment. He admits that the intention of the law is to govern in penal as well as in other statutes, and that they are not to he so strictly construed as to defeat the obvious intention of the legislature. “ The maxim,” he says, “ is not to be so applied as to narrow the words of the statute to the exclusion of cases which the words, in their ordinary acceptation, or in that sense in which the legislature has obviously used them, would comprehend. The intention of the legislature is to be collected from the words they employ. Where there is no ambiguity in the words, there is no room for construction.” This rule is illustrated in the case of Strong v. Stebbins (5 Cow., 210), which was an action brought to recover a penalty given by statute “ for willfully and knowingly aiding or assisting the tenant in the fraudulent conveying and carrying away goods and chattels from demised premises.” ■ The court held, that aiding the tenant by advice and counsel was not enough, and that it was necessary to prove physical aid or assistance to bring the case within the statute. So in the actions for penalties in “forcibly or fraudulently” passing any toll-gate without paying toll. (Monterey, &c., Plankroad Co. v. Faulkner, 21 Barb., 212, and Bridgewater and Utica Plankroad Co. v. Robbins, 22 id., 662), it was held, that there must be actual force or actual fraud, or the action would not lie; that constructive fraud was not enough. So here, I think the statute must be construed to mean actual, guilty knowledge, which must be proved, and which cannot be presumed or inferred merely from the acts of others, and their relation to the defendant. The plaintiff’s counsel cites the decision of the Court of Appeals in the case of Davis v. Bemis (40 N. Y., 453, note), which was an action to recover treble tolls for signing and delivering to the collector of tolls a false bill of lading. There the false bill was signed and delivered by the agents of the defendant, who had charge of that branch of his business. But the case was decided upon the principle of the [24] maxim, qxii faoit jper alium faoit pper se, which certainly cannot be applied to this case. We are also referred to cases where, in actions to recover penalties for selling spirituous liquors without a license, it has been held that the principal was liable when the liquor was sold by Ms servant or agent, without proving the knowledge of the principal. But the language of the statute in those cases is different from the language here. It does not make actual personal knowledge the express ground of liability, as in this statute. As there was no proof here of actual personal knowledge on the part of the defendant, and no evidence tending to prove it, the plaintiff was properly nonsuited. A new trial must, therefore, he denied.