People v. Utley

Hooker, C. J.

The defendant was convicted under the provisions of the liquor law. It is claimed that he was a druggist, and that he sold liquor as such without having given a druggist’s bond. His counsel contends, in substance, that the law does not provide for the punishment of a druggist who, sells without having first given a druggist’s bond.

The general liquor law is not aimed at the two classes of persons usually supposed to sell liquors, viz., saloon keepers and druggists, alone. It applies to any one who sells liquor in contravention of its provisions. It contains a requirement that all persons who wish to engage in the sale shall file a bond of a prescribed form, and excepts from this provision druggists who see fit to file a bond of different form, also prescribed. Until a druggist files the latter bond, he is within the former provision, and is a retailor if he sells liquor in quantities of three gallons or less. 2 Comp. Laws, § 5380. If he has proved that he was a druggist, and has given the prescribed druggist’s bond, he is not liable for sales made as a druggist, under the complaint j but, if he has not given a druggist’s bond, he is liable under the law as any other man would be. The law does not purport to give immunity from its *630 penalties to all druggists, but only to such druggists as. “sell liquors for chemical, scientific, medicinal, mechanical, or sacramental purposes only, and in strict compliance with law. ” Id. § 5381. No druggist sells liquor in compliance with law until he gives a bond. Such are not druggists within the contemplation of the law.

But the information is insufficient to sustain this conviction. It charges the defendant with selling liquor without giving the bond prescribed by section 5381, — i. e., the druggist’s bond, — but it does not allege that he has sold liquor unlawfully, because it does not state that he has not given the retailer’s bond prescribed by section 5386. The law does not prohibit a druggist from being a retailer of liquor, provided he is willing to pay the tax and give the retailer’s bond; but it does permit him to sell for certain purposes, and in certain methods, without giving the retailer’s bond, if he gives another bond, and not otherwise.

Inasmuch as this information will not support the conviction, we have no alternative but to set aside the verdict and discharge the respondent. It is so ordered.

Moore, Grant, and Montgomery, JJ., concurred. Long, J., did not sit.