85 Vt. 99 | Vt. | 1911
The respondent is complained against for distributing and causing to be distributed at Burlington, on the day named, a free sample of a certain medicine known as “DeWitt Kidney and Bladder Pills” by handing the same to one Rosie Parrotti,a child of the age of four years, in violation of the provisions of P. S. 5902. By that section, “A person, firm or corporation that distributes or causes to be distributed a free or trial sample of a medicine, drug, chemical or chemical compound, by leaving the same exposed upon the groond, sidewalks, porch, doorway, letter box or in any other manner, that children may become possessed of the same, shall be fined, ” etc.
' No question is made but that on the facts presented this statute was violated at the time and place and in the manner set forth in the complaint, not by the respondent in person, but by his agent or servant, acting with him in distributing at houses
The sole question, therefore, is, whether the master is liable under the statute, for the acts of his servant in violation thereof against his general instructions.
This statute is in exercise of the police power for the general protection by the State, as parens patriae; of children within its domain, they being incapable of protecting themselves. At common law, infants as well as idiots, are under the care and protection of the sovereign, as persons equally unable to take care of themselves. Eyre v. Countess of Shaftsbury, 2 P. Wm. 102. Lord Hardwick said that “in respect of lunatics, idiots and infants the king is bound to take care of them.” Smith v. Smith, 3 Atk. 304.
This legislation does not prohibit the distribution of free or trial samples of such articles as are therein named, but it does undertake to regulate their distribution in the interests of humanity, by making it a technical crime to leave the article exposed in the places named or in any other manner, whereby the possession thereof may be had by children, persons of limited understanding, perhaps to their own injury, or t© the injury of others of the same class. It pertains to their physical well-being and hence to the interest of the State. The action given for its violation, though criminal in form, is in substance more particularly civil in nature designed to prevent the recurrence of that which constitutes a public nuisance. No private action can be had by a person to recover damages for a public nuisance, nor for an injunction to abate such nuisance, unless he has suffered an injury peculiar to himself beyond that by the rest of the public. Baxter v. Winooski Turnpike Co., 22 Vt. 114, 52 Am. Dec. 84; Sargent v. George, 56 Vt. 627. It is the general rule that common nuisances against the public are punishable only by indictment. In State v. Vermont Central R. R. Co., 27 Vt. 103, the railroad company was indicted for a nuisance in obstructing a public highway, by building and maintaining their depots within its limits, and by “unlawfully and injuriously suffering their engines and cars, and also horses,
Under these authorities the question of intention is immaterial. The statute looks at and punishes the act constituting the offence without regard to the intention of the person by or for whom the distribution was made. A person may lawfully distribute such articles as are named in the statute if he observes its provisions. If he employs an agent for that purpose, it is his duty to know that the law regulating the manner of distribution be not violated, and in case of its violation by such agent in the performance of the duties of his agency the principal is not absolved from responsibility by showing that in the manner of the work the violative acts were contrary to his previous general instructions. It follows that, notwithstanding the distribution alleged was in fact by the respondent’s agent and contrary to his general instruction against delivering to children, yet as it was done by the agent in distributing samples furnished him by the respondent for that purpose, acting under the respondent’s orders, and in the prosecution of the respondent’s business for which he was employed, the distribution was caused by the respondent within the meaning of the statute, .and he is answerable therefor.