State v. Rubenstein

• Court: Oregon Supreme Court
• Writing for the Court: BROWN, J.
• Citation: State v. Rubenstein, 112 Or. 179, 228 P. 918 (Or. 1924)
• Decision Date: 16 September 1924
• Parties: STATE v. RUBENSTEIN.

228 P. 918

112 Or. 179

STATE v. RUBENSTEIN.

Supreme Court of Oregon

September 16, 1924

Department 2.

Appeal from Circuit Court, Lane County; G. F. Skipworth, Judge.

Elia Rubenstein was convicted of purchasing pelts of fur-bearing animals without license, in violation of statute, and he appeals. Affirmed.

The defendant was charged in the justice court with, and convicted of, the violation of section 75 (a) of chapter 153, General Laws of Oregon 1921. He appealed to the circuit court of the state of Oregon for Lane county, where he was again convicted and sentenced to pay a fine of $25. From that judgment he appeals to this court.

E. O Immel, of Eugene (Potter, Foster & Immel, of Eugene, on the brief), for appellant.

Clyde N. Johnston, Dist. Atty., of Eugene, for the State.

BROWN J.

Section 75 (a) of chapter 153, General Laws of Oregon 1921 regulating and protecting fur-bearing animals, provides among other things:

"Hereafter it shall be unlawful for any person or persons, firm or corporation to engage in the business of buying otter, mink, fisher, marten, muskrat or the skins or pelts of any other fur-bearing animals unless such person or persons, firm or corporation shall have first obtained a license from the state game commission."

Upon trial sufficient evidence was adduced upon which to base the finding of the trial jury that the defendant was guilty of engaging in the business of buying the pelts of fur-bearing animals, without first having obtained a license therefor.

"Business," as used in the statute, has a well-defined meaning.

" 'Business,' where made subject to a tax, ordinarily means business in the trade or commercial sense, carried on for profit." 4 Cooley, Taxation (4th Ed.) § 1695.

The court did not err in overruling the defendant's motion for a directed verdict.

The defendant contends that, because he made the purchase of the pelts for R. M. Miller and Esy Rubenstein, partners engaged in business under the firm name of Willamette Hide & Junk Company, he is not guilty of the crime charged in the complaint. The defendant offered to show "that the only occasions on which he (defendant) handled furs were occasions on which he was sent out by Miller and Rubenstein * * * to make purchases for Miller and Rubenstein," and that the defendant "was acting as their agent and employee * * * to buy * * * furs." It is not contended that Miller and Rubenstein were authorized to engage in the business of buying furs. Upon the other hand, the record proves that they were without license to engage in that business.

It appears, then, that the question of real consequence in this case is, Can the defendant shield himself from the penalty prescribed by law, by showing that, while engaged in the commission of the overt act constituting the offense charged, he was the agent of, and was then and there acting under the direction of, an unlicensed principal? We think that question must be answered in the negative.

"It is settled law that an agent may be prosecuted for engaging in a business for which his principal has not taken out a license. And this rule has been held to apply even though such agent had no pecuniary interest in the business." 25 Cyc. 636, 637.

In this jurisdiction, when a statute requires a license as a prerequisite to engaging in the business of buying furs, an agent who commits the forbidden act is personally liable for the penalties provided by statute for persons engaging in such business without first having obtained a license. State v. Chastain, 19 Or. 176 23 P. 963; State v. Weiss, 63 Or. 462, 128 P. 448; State v. Gear, 72 Or. 501, 143 P. 890; State v. Brown, 73 Or. 325, 144 P. 444;...