The only question is the validity of the indictment, and under the decision of this court in Williamson's case, 41 Texas Criminal Reports, 461, it was sufficient to state that the indictment in this case did not comply with the rule land down in that case, because it failed to allege that appellant was selling under prescription of a physician, as required by law; but it seems my Brother DAVIDSON was not content with his opinion rendered in the Snearly case and also in the Williamson case, but now goes a step further, and holds (without any necessity, so far as the purposes of this case are concerned) that, if a sale of intoxicating liquor is not under prescription, still the seller must have an occupation license. I quote *Page 17 from his opinion in the Williamson case, supra, as follows: "If this law is valid, — which the writer does not concede, — then it is necessary to charge a violation of the particular character of license required in that particular territory as a prerequisite for engaging in the sale of such intoxicants. As the law requires a license to selling on prescription before the party can engage in the business, in order to secure a conviction for a violation thereof the essential elements of that offense must be distinctly averred. An indictment general in its terms will not do. The only license that can be obtained in local option territory under this act is one authorizing the sale of intoxicating liquors on the prescription of a regular, practicing physician." Now, I submit that under the proposition above stated as to what the indictment should contain it would necessarily follow that the proof should meet the allegations in the indictment; that is, when one is prosecuted for selling liquor in a local option territory without a license, it being necessary to allege that he was making sales of intoxicating liquors on the prescription of a physician, that it would be required of the State to prove this. If this be not true, then I insist that an indictment general in its terms would do, because any sale of liquor in the local option territory without a license would make the party so selling amenable for a violation of the law. This is so elementary that it requires neither the support of argument nor authority. But we are now told "that the license to sell on prescription is a sine qua non to selling in such territory under any circumstances." I maintain that a person selling liquor in local option territory is only responsible for the tax if he sells such liquor according to the law which levies the tax; that is, as I understand it, the tax is levied upon the occupation of selling intoxicating liquor in the local option territory under the prescription of a physician. To hold otherwise would be to put the government in the attitude of collecting a tax upon an illegitimate transaction. This itself, if it be conceded that the tax covered it, would legitimatize the calling; and it would necessarily follow that the government could collect a tax from a person running a "blind tiger;" and if this could be done, it would legalize the sale of such liquors in the local option territory. In consonance with this view it is held that, where the statute exempts certain characters of sale from license tax, as a matter of course, it is no violation of the law to sell such liquors without a license. I apprehend it will not be seriously contended that it would be required, under our statute, for a druggist to have a license to sell tinctures and drug compounds in the preparation of which such liquors enter, and which are not intoxicating beverages, prepared in the evasion of the license law. And, if certain characters of sales of liquor are inhibited altogether in the local option territory, certainly no tax is collectible for such illegal sales, nor would a license protect against such sales. Black. on Intox. Liq., 413, and authorities there cited; Adams v. Hackett, 27 N.H., *Page 18 289, 59 Am. Dec., 376. Therefore it follows as a corollary that the government can only collect a tax on the occupation of selling under the prescription of a physician, because this is the only legal sale that can be made in the local option territory. The indictment must allege this, and the proof must correspond with the indictment. A license will be no defense against an illegal sale, such as are made punishable by provisions of the local option law.