Bishopp v. Lane

Per Curiam.

The sole question presented by this application is whether a druggist who has filed his bond as required by the statute, and who violates the restrictions imposed by law in selling intoxicating liquors, in a county in which the provisions of the “ Local Option Law,” so called, are in force, is to be prosecuted under such local *462 option law or the general statute (Act No. 313, Laws of 1887).

The second section of the local option law (Act No. 207, Laws of 1889) provides that— “ On and after the first day of May next following after the adoption by the board of supervisors ” and the vote of the people required by the statute, the general laws of the State relating to the regulation of the business of selling intoxicating liquors “ shall be, and the same are hereby declared, suspended and superseded so far as relates to the territory and municipalities within the limits of any such county: Provided, however, that all sales of liquors by* druggists or registered pharmacists in such counties shall be under the restrictions and requirements imposed upon them by the general laws of this State.” ,

Section 1 of the act provides—

“ That it shall be unlawful for any person, directly or indirectly, * * * to sell * * * any vinous, malt, brewed, fermented, spirituous, or intoxicating liquors, * * * or to keep a saloon or any other place where any such liquors are manufactured, sold, stored for sale, given away, or furnished, in any county of this State, on and after the first day of May next following after the adoption by the board of supervisors of such county of a resolution prohibiting- the same, as provided in section thirteen of this act, so long as such resolution remains unrepealed: Provided, however, that the provisions of this section shall not apply to druggists or registered pharmacists in selling any such liquors under and in compliance with the restrictions and requirements imposed upon them by the general laws of this State.”

These provisions refer to the general laws of the State as fixing the restrictions and requirements imposed upon druggists; but section 1 does not in terms exempt druggists from the provisions of the act, but only druggists who sell under and in compliance with the restrictions and requirements imposed upon them by the general laws of the State. To hold that druggists are not punishable *463 under Act No. 207, it is necessary to enlarge the proviso which exempts them. There could be no doubt, if the restrictions were embodied in the proviso itself, that a prosecution would lie if compliance with such restrictions were negatived in the information; nor do we think the fact that such restrictions and requirements are imposed by another general law of the State changes the rule of ■construction. We hold, therefore, that the prosecution should have been under Act No. 207, Laws of 1889. See People v. Murphy, 93 Mich. 41 .

As the learned circuit judge reached the same conclusion, it follows that the writ of mandamus, asking for the vacation of his order, should be denied, without costs.