*1 Dakota, of South Plaintiff STATE Appellee, STORES, INC.,
HY VEE FOOD Appellant.
Defendant
No. 18693.
Supreme Court of Dakota. South
Argued 1994. Oct.
Decided June Barnett, Gen., Atty. Geaghan,
Mark Frank Gen., Pierre, Atty. plaintiff Asst. for appellee. Frankman, Hoglund
Thomas M. Sandra K. Evans, Smith, Davenport, Hurtwitz & Falls, appellant. Sioux defendant KONENKAMP, Justice. corporation appeals its misdemeanor selling an alcoholic conviction twenty-one. age We affirm. part sting operation As of an undercover рolice nineteen-year-old Sioux Falls sent college grocery student into a store *2 148 Hy the burden constitutionality; Vee bears purchase attempt to 1993
on March that beyond a reasonable doubt college proving Wearing a sweatshirt liquor. State, Crowley v. police infiltrator carried is unconstitutional. jacket, the the law football (S.D.1978). counter. “The con- whiskey to the checkout 618 268 N.W.2d bottle of grant upon herself the cashier a limitation young to sell not a Too stitution is legislature to scan the item. employee lawmaking power of the state asked an older money purchase any expressly took the or cashier then enact law not The and it rang the sale. Neither up by state and federal inferentially prohibited verify purchas- asked for identification Kramar v. Bon Homme constitutions.” (S.D.1968). age. er’s County, 155 N.W.2d two em- upon the actions of these law,” Based applied to when process “Due Stores, Inc. was Hy Vee Food plоyees, govern- rights, means that the substantive guilty magistrate found charged with and deprive right ment is without 35-4-78(1) by selling violating SDCL court of life, by liberty property an act person or under an alcoholic any relation to that has no reasonable magistrate imposed a twenty-one. The by purpose which proper governmental charged with employee was Neither fine. beyond necessity of the case far is so Hy appealed to committing a crime. Vee arbitrary govern- exercise of as to be an de- seeking to have the statute court circuit power. mental The circuit court unconstitutional. clared 619. Under this Crowley, 268 N.W.2d at Hy that Vee asserts upheld the conviction. ap- if the statute as criterion we determine employees committed the the individual Hy “a real and substantial plied to Vee has acts, ap- corporation, and wrongful not the objects sought attained.” to be relation to following issue: peals on the Osteopathic v. Board Medical & Katz Hy conviction under SDCL 35- Vee’s Did (S.D.1988). Exam., 274, 278 432 N.W.2d process due violate its substantive 4-78 of reasonable within the bounds “Whenever by imposing vicarious liabil- rights construction, legitimate an act of illegal company for the acts of ity on the so as not legislature can be construed employees? its constitution, that construction violate the Ter- adopted.” Matter Certain should be DECISION Boundaries, 281 N.W.2d Elec. ritorial employees sold alco- Hy concedes its Vee (citations omitted). (S.D.1979) 69-70 underage person in violation of hol to statutes which The law disfavors 35-4-78(1): any licensee sell “No SDCL fault, much without impose criminal any person beverage: To alcoholic lia less those enactments twenty-one years_” A viola- age of vicariously. Staples v. bility See United 1 misdemeanor this section is Class tion of — States, —, S.Ct. U.S. jail year in or a one thou- punishable one power Yet states “have L.Ed.2d 608 fine, Hy or both. SDCL 22-6-2. dollar sand against what are found to be legislate that of criminal avers commer injurious practices in their internal for acts on it under SDCL 35-4-78 affairs, long so as them laws cial and business impermissible employees constitutes an itsof specific federal not run afoul of some do infringement upon Vee’s substantive due Ferguson v. prohibition....” constitutional rights in of both Article VI prоcess violation 726, 730-31, Skrupa, 372 U.S. and the Dakota Constitution of the South (1963); Holdridge v. of the United States Con- 14th Amendment Cir.1960). (8th States, 282 F.2d United question is whether stitution. imposed against an alcoholic can be supreme “state Vee notes certain beverage corporate licensee for unlawful the constitu- directly addressed сourts have employees? acts of have found tionality similar statutes and liquor licensee’s in violation of the legislative arrive them to be
All
enactments
rights
the state and feder-
presumption in favor of their
us with a
before
employees,
provided
al
Koc
that the conduct
constitutions.” Commonwealth
is with-
zwara,
575, 155
sсope
employee’s authority
Pa.
A.2d 825
cert.
in the
of the
denied,
apparent.
S.Ct.
whether actual
New
Cen-
York
States,
Davis v.
Peach
tral & H.R.R. Co. v.
L.Ed.2d
United
*3
219,
(1983); 481,
304,
304
City,
(recog-
tree
251 Ga.
S.E.2d 701
29 S.Ct.
We
our
with the rather Minn.L.Rev.
Scott, Jr.,
corporation
observаtion that a
can
Austin
mundane
&
W.
Crimi-
Substantive
3.10,
through
agents.
§
Law,
not
at 356
decline
act but
its
Well settled
We
nal
principle
“[l]egislative
that
do so in
instance
the basic
this
because
reg-
imputed
corpo
essentially public
be
welfare
certain offenses
acts
are
knowledge
ulatory
rate defendants for the unlawful acts
measures
omit
violating
imposed; corporations
that
element without
substantive due
could have been
Stone,
Distillers,
process guarantees.”
imprisoned.
State v.
467 cannot be
Melrose
(S.D.1991),
(citing
States,
Hol
N.W.2d
Inc. v. United
79 S.Ct.
310).
“penalties
dridge,
F.2d at
Where
(1959); People
v. Select
small,
commonly
relatively
and conviction
Co., Inc.,
Tire
84 Misc.2d
374 N.Y.S.2d
damage
repu
grave
to an offender’s
does no
at
willWe
Fletcher
circumstances
tation” under such
statutes
speculate
applicability
over the law’s
component
a mens rea
dispensing with
have
persons not before us or assume that some
States,
upheld.
v. United
been
Morissette
jail
upon
future court will
sentence
240, 246,
96 L.Ed.
persons.
Vee’s maximum criminal
*4
(1952).
288, 295
$1,000
exposure
awas
fine. “A defendant
cannot claim that a statute is unconstitutional
liability
asserts that criminal
Vee
if
some of its reaches
it is constitutional as
imputed
it
should not be
here because
Russell,
City
applied to him.”
Pierre v.
firm,
policy
adopted а
oft-reiterated
that its
of
(quoting
S.D.
N.W.2d
old,
liquor
must not
employees, new and
sell
Andera,
Big Eagle v.
508 F.2d
underage persons.
Its
manual
(8th Cir.1975));
Levy,
see also Parker v.
states:
U.S.
S.Ct.
L.Ed.2d 439
years
Beer and alcohol sales —21
old.
(1974);
Oklahoma,
Broadrick v.
required. Cigarette/tobacco
I.D. check
(1973).
93 S.Ct.
years
age.
be 18
of
If in
sales —Must
wrote,
As Justice Holmes
wе free our
“[I]f
you
charged
I.D.
If
their
doubt-check
from
minds
the notion that criminal statutes
you
minor
selling
with
could be sub-
by
must be construed
some artificial and
possible jail
ject
Hy-
a
time.
fine
rule,
inference,
conventional
the natural
employees
pay
fines.
Vee does not
This is
prescribes
independent
when a statute
(Original
twо
your responsibility.
emphasis.)
penalties, is that it means to inflict them so
questions aside for
Constitutional
the mo-
can,
that,
far
if
as
one of them is
ment,
general
merely stating
rule is that
the
mean,
account,
impossible, it does not
on that
promulgating policies will not
a
or
insulate
escape.”
to let the defendant
United Stаtes
liability.
corporation
Smokey’s
from
State v.
Co.,
Supply
v. Union
Steakhouse, Inc.,
(N.D.1991);
“even acted unwavering public laws manifest interest contrary express they instructions whеn law, liquor long they acting prohibiting persons sales to violated the so as were corporation twenty-one. problems the for the benefit of and within The serious associat scope apparent youth the actual or justify their authori- ed with who abuse alcohol strin ty.” § Corporations 18B AM.JuR.2d 2136 gent dispense enforcement who those Intoxicating see also 45 AM.JuR.2d By establishing liability against it. Liquors § 417 licensee, corporate alcoholic our beneficiary laws hold accountable the true provides potential
As the statute one illegal encourage sales and such licensees to sentence, year jail argues thаt supervision employ exercise intensified over goes beyond being regula- enactment a mere delegated responsibilit ees tory consequences measure with minor for its Thus, challenged If ies.* statute has a corpo- violation. the defendant was not a ration, objects argument might carry this real and substantial relation to the serious case, however, merit. sought this a fine was all to be attained.
* responsibility by checking Only Such is not novel to South Dakota verified for identification. Twenty-five impute liability licensees. states eight appear specifically states that a state by license holders for unlawful sales their em- viсariously responsible licensee is not for an em- ployees. good jurisdictions Some allow faith ployee's unlawful sale of alcohol to a minor. defense, only purchaser's age was if SABERS, MILLER, C.J., J., constitutionally fine a Hy Vee’s $200 Was WUEST, Justice, Retired concur. circum- permissible sanction Wayne R. & Austin W. stances? AMUNDSON, J., dissents. Scott, Jr., Law Handbook on Criminal GILBERTSON, J., having not been a (1972), supports that: the view at at the member of the Court time this case is consistent with the Composition of considered, participate. did not liability. rationale behind vicarious imposed AMUNDSON, (dissenting). because Vicarious Justice danger nature and inherent of certain prob- The fact that there be serious business activities and difficulties society by lems in our with abuse of alcohol establishing operation fault in actual youth our does warrant fine, imprison- unlike such businesses. a criminal conviction where no there is show- ment, personal properly is more is less knowledge or authorization of the penalty viewed as a on the business enter- employer/Hy crime Vee. prise. Discussing vicarious in the crimi- arena, nal the court in Davis v. *5 Koczwara, 827-28, in A.2d at As noted 219, 221-222, City, Peachtree 251 Ga. regulatory public welfare demands certain S.E.2d stated: control: balancing this burden regu- [M]any states have enacted detailed interests, publiс’s [criminal we find that a in latory provisions fields which are essen- justified cannot conviction] be noneriminal, drug tially e.g., pure food and Georgia clauses of the or Unit acts, ordinances, building regula- speeding Constitutions, regardless of ed States tions, labor, wage minimum and child City’s admittedly legitimate in Peachtree legislation. maximum hоur Such statutes deterring employers terests of from allow by light penal- generally are enforceable their to break the law and ties, although violations are labelled facilitating the enforcement of these crimes, applicable to the considerations true, when, especially laws. This is as totally аppli- different from those them are here, other, there are less onerous alterna crimes, involve moral cable to true sufficiently promote in tives which these delinquency punishable and which are Scott, on [Handbook terests. LaFave & penalty. imprisonment or another serious Law, at 141 The ]. Criminal statutory in Such so-called crimes are real- recommends that civil Model Penal Code ity attempt machinery to utilize the an as providing violations civil enforcing an criminal administration as of licenses be used for fines or revocation regulations purely civil arm for social of a offenses for which the individual was not nаture, morally blameworthy punishment totally unre- and does deserve with the ‘implicit in the the social condemnation questions wrongdoing or lated to of moral availability ... concept “crime”.’ The in guilt. It is here that the social interest such sanctions renders the use of general well-being security of the unjust sanctions in vicarious cases populace outweigh has been held ifiable. ... Id. particular interest of the defen- individual penalty imposed despite The is dant. Similarly, commentators LaFave and Scott defendant’s lack of criminal intent or opposition criminal sanc- have written in mens rea. liability: tions based on vicarious recognized that the must be [I]t magistrate’s imposition of a faultless conduct is of criminal regulatory consistent with the nature of Anglo-American contrary to the basic state offenses and did not offend Vee’s justice premise that crime re- process rights. and federal constitutional due part quires personal fault on the Perhaps should accused. the answer be Affirmed. proposed answer as the the same stricfc-liabihty proper crimes: is
case spe- single out some legislature
for the activity of human
cial areas employers liability on who fault, matter should not be but the
without ‘crime’.... As the law now
called however,
stands, jurisdictions all in almost ‘criminal’ and the word
imprisonment employ- upon perfectly innocent visited
be employees. the sins of their
ers for Scott, on & Handbook Criminal
Law, § 32 at 228. liability/respondent
Adopting this vicarious theory corporation/em- to brand
superior criminal, comport does not
ployer as jurisprudence that of criminal precept individual.
guilt personal and Whеther branded, should not rest be so not one should a mistake commits
on whether court, which found judgment. Even the guilty, understood the fact that em-
Hy Vee mistakes and will inten- can make
ployees notwithstanding the
tionally the law violate *6 training handling mistak- policy on and
store persons. underage sale of alcohol
en others, ease, appro- as in there are
In this liquor- civilly deal with
priate mechanisms if a license holder violates the violations
law; namely, regulatory revocation or sus- license under SDCL 35-10-9
pension of the
and 35-2-10. conviction.
I reverse this would Dakota, Plaintiff of South
STATE Appellee, TUCKER, Defendant
Ronald Gene Appellant.
No. 18831.
Supreme Court of South Dakota. Love, Barnett, Gen., Atty. Todd A. Mark 23, 1995. on Briefs March Considered Gen., Pierre, Atty. plaintiff Asst. Decided June appellee. Timothy Bjorkman, Bridgewater, W. appellant. defendant