Mason v. State

This conviction was had under the penal provision of section 8, art. 2, c. 69, p. 600, Sess. Laws 1908. The judgment in this case cannot be permitted to stand. The information is insufficient. It fails to allege that the defendant had complied with the provision of said section 8 that requires each apothecary or pharmacist doing business in the state to execute a bond in the sum of not less than $1,000, to be approved by the superintendent of the state agency, conditioned that none of the liquors furnished by said superintendent shall be used or disposed of for any purpose other than in compounding or preserving medicines, etc.

The question presented is identical with that presented in the case of Titsworth v. State, ante, p. 268, 101 P. 288, decided at the last term, wherein this court held:

"Section 8 must be construed as a whole. Each portion must be considered in the light of the other portions, and subject to the purpose to be accomplished by the entire section. Those only could be sued upon bonds who had given bonds. Only those who desire to use intoxicating liquors to compound medicines for sale give bonds. Therefore only this class is subject to the pains and penalties prescribed in section 8 — are inseparable. They stand or fall together. This alone is enough to make it clear that the Legislature intended to confine section 8 and its penalties to those druggists who desired to keep and use liquors in their places of business, not for their personal use, but to be used exclusively for compounding medicines for sale. This construction of the enforcement act harmonizes it with all of its other provisions, and frees it from even the appearance of being unconstitutional. It is not special legislation, because it confers upon all druggists, who shall comply with its provisions, the right to use intoxicating liquors in compounding medicines for sale. Having consented to and complied with these conditions, to our minds it is clear that, before the defendant could be held liable under section 8, he must have voluntarily brought himself under its provisions, or must have attempted to do so. This must be alleged in the information, and proven upon the trial, before he could be legally convicted."

Upon the authority of Titsworth v. State, supra, and for the reasons stated in that opinion, the judgment of the county court of Pontotoc county in this cause is hereby reversed, and the case remanded to that court, with directions to sustain the demurrer to the information.