
    STEWART v. CALHOUN CIRCUIT JUDGE.
    1. Intoxicating Liquors — Statutes—License.
    A druggist may not lawfully sell intoxicating liquors to be drunk on the premises without paying the tax and obtaining the license required of retail dealers. 3 Comp. Laws, § 5379.
    2. Same — Illegality of Sales — Information.
    A charge in an information that the defendant, a druggist, and person engaged in part in the sale of drugs and medicines, sold intoxicating liquors to be used as a beverage and drunk on the premises, sufficiently negatives the lawfulness of the sales.
    Mandamus by Louis E. Stewart, prosecuting attorney of Calhoun county, to compel Walter H. North, circuit judge of Calhoun county, to set aside an order quashing an information: On motion for rehearing on the issuance of the writ.
    Submitted November 19, 1909.
    (Calendar No. 23,132.)
    Motion denied December 30, 1909.
    
      D. C. Salisbury, for the motion.
    
      Louis IS. Stewart, contra.
    
   Hooker, J.

This is a motion for rehearing in the case of Stewart v. Calhoun Circuit Judge, 156 Mich. 642 (121 N. W. 279). We held that the information filed in that case was a good information. It is now said that in so doing we have overruled the cases of People v. Haas, 79 Mich. 449 (44 N. W. 928); People v. Decarie, 80 Mich. 578. (45 N. W. 491), and People v. Telford, 56 Mich. 541 (23 N. W. 213). Had this defendant been charged with an act which a druggist might lawfully have done these cases would have some application. In the Case of Telford, an information based on a sale of liquor, accompanied by a failure to post a receipt for the liquor tax imposed on saloon keepers, was held bad for the very substantial reason that if he were a druggist he might have lawfully sold the liquors, no payment of tax being necessary by druggists selling in compliance with law. In People v. Haas, the defendant was charged with the selling and keeping for sale at retail intoxicating liquors without having posted the receipt and notice required by Act No. 313, Pub. Acts 1887. The Telford Case was followed, the case being similar. In the Case of Decarie, the conviction was for a failure to pay the tax required by the section of the statute last cited. As a druggist selling lawfully was not required to pay the tax, it was held necessary to show defendant’s transgression by negativing the exception made by the statute.

In this case the defendant is charged with an act that could not have been lawful by a druggist or anybody else, viz., selling liquor to be drunk upon the premises as a beverage. Hence, under our decisions, it made no difference whether he was a druggist or not. Moreover the information did negative the possibility of his selling lawfully as a druggist by the following language:

“ Being a druggist and a person engaged in a business in said city of Battle Creek consisting in part of the sale of drugs and medicines did then and there sell at retail, furnish and deliver to William Brant and W. B. Harkins a certain mixed liquor, to wit, ‘ high balls,’ a part of which said mixed liquor was spirituous and intoxicating liquor, to wit, whisky, which said mixed liquor, a part of which was then and there spirituous and intoxicating liquor, was not so sold, furnished and delivered to the said William Brant and W. B. Harkins for medicinal, chemical, scientific, mechanical or sacramental purposes, but was so sold, furnished and delivered by the said William Peet to the said William Brant and W. B. Harkins to be used as a beverage and drunk on the premises and said spirituous and intoxicating liquor,” etc.

The motion is denied.

Ostrander, Moore, McAlvay, and Brooke, JJ., concurred.  