Appellant was convicted of engaging in the sale of intoxicating liquors in a subdivision of Hamilton County without first having obtained a license for that purpose under Acts 25th Legislature, pages 223, 224. This information is the same as that in the Snearly case, 40 Texas Criminal Reports, 507, and also as that passed upon in Williamson v. State, 41 Texas Criminal Reports, 661. The section in question provides: "And there shall be collected from every person, firm, corporation or association of persons, for every separate establishment selling such liquors and medicated bitters within this State; within a county, subdivision of a county, justice precinct, town or city in which local option is in force under the laws, the sum of $200; provided the same shall not be sold in such localities except upon prescription and in compliance with the laws governing the sale in such localities; provided further, that nothing in this article shall be so construed as to exempt druggists who sell spirituous, vinous, or malt liquors, or medicated bitters capable of producing intoxication, on the prescription of a physician or otherwise, in either localities as above set forth, from the payment of the tax herein imposed: provided further, that this article shall not apply to the sale by druggists of tinctures and drug compounds in the preparation of which such liquors or medicated bitters are used and sold on the prescription of a physician, or otherwise, and which tinctures and compounds are not intoxicating beverages prepared in the evasion of the provisions of this chapter nor of the local option law." This is an excerpt from the article above cited, and is article 5060a, Revised Civil Statutes, as amended by said Twenty-fifth Legislature.
The writer undertook to state in the dissenting opinion in the Snearly case, and in the opinion in Williamson v. State, supra, his views as to what were sufficient averments charging a violation of said law. In order to properly charge an offense under this statute, it will be necessary, after setting out the fact that local option was in existence, to aver that the accused was engaged in the business of selling *Page 15 intoxicants in the local option territory named, without first having obtained a license for the purpose of selling such intoxicants on prescription. Of course, the exception in favor of druggists selling drug compounds must be negatived in the indictment. An inspection of the article shows, with the exception of drug compounds, excepted out of the provisions of the law, that other intoxicants can be sold in such territory only on the prescription of a regular, practicing physician, and in conformity with the local option law. By referring to the local option law, it will be found that intoxicants can not be sold in that territory except on the prescription of a regular, practicing physician, certifying on honor, etc., that such intoxicants are for medical purposes. Now, under the local option law, intoxicants can not be sold except as stated. If this statement is correct, it would follow that the Legislature was requiring a license of the party selling in such territory. It further prohibits any person or association of persons from engaging in the sale of intoxicants in said territory until he has obtained a license to sell on prescription. Therefore a party can not sell intoxicants in such territory, unless drug compounds, except on prescription, without first having obtained a license, even for that purpose. Thus it will be seen that the license to sell on prescription is a sine qua non to selling in such territory under any circumstances. In other words, no person or association of persons can sell liquor or intoxicants under the act in question in a local option territory, with or without prescription, until he has first obtained a license to sell on prescription. He could no more sell in that territory on prescription than he could without prescription until the license had been first obtained. In other words, this law intended to prohibit, was passed for that purpose, and expressly does prohibit the sale of intoxicants in a local option territory in any manner whatever, whether on prescription or without prescription, until the license to sell on prescription has been obtained; and whether he sold with or without prescription would not be a defense, unless the license had been obtained; and if he sold with or without prescription, he would be amenable to punishment under this article, unless he first obtained a license, and not only obtained a license, but the peculiar license herein specified, to wit, to sell on the prescription of a regular, practicing physician. This law limits absolutely both the sale and the license to sell on prescription. The accused can not justify any sale or defeat the cause of action by proving that he was selling otherwise than on prescription. No other than the statutory license would avail, and without this peculiar character of license he can not sell in any manner whatever. He can not answer and say that the selling was not on prescription, for the law replies that the license to sell on prescription is a prerequisite to selling at all. On the trial the proof must correspond with the allegations. If the prosecution should prove that the party selling had no license at all this might be sufficient to justify the jury in concluding that he had not the license to sell on *Page 16 prescription, because, if he had no license, he certainly would not have the required license; but if he had a license to sell at retail, or on any other terms than on prescription, this would be no answer to the indictment. He must have the license provided by the Legislature. Of course, if the State should prove that the accused had not obtained the license to sell on prescription, this would be sufficient on this branch of the case. But, in any event, before the party can sell in local option territory, he must have the required license to sell on prescription.
By referring to a subsequent statute of said acts of the Twenty-fifth Legislature, it will be observed that this law limits, under the license, the amount of intoxicants to be sold on prescription to one quart or less. In no event can the prescription justify the party selling in the local option territory, even when the license is obtained, in quantities in excess of one quart; and, to enforce this provision of the law, the Legislature required a bond in a heavy sum, and makes it forfeitable for every infraction of the terms of the license.
The information upon which this conviction is predicated is insufficient, and fails to charge an offense against the law; and because thereof the judgment is reversed, and the prosecution ordered dismissed.
Reversed and dismissed.