following is the material part: "Fred H. Emery on the 31st day of August, 1907, at the city of Charlotte, in said county, did sell, furnish, and deliver to Ira Ball, certain spirituous, malt, brewed, fermented, vinous and intoxicating liquors, to wit, one bottle of beer to be used as a beverage. He, the said Fred H. Emery, being then and there a person whose business consists in part in the sale of drugs and medicines, and said liquors not being then and there sold for chemical, scientific, medicinal, mechanical, or sacramental purposes only, and in strict compliance with law, contrary to the statute in such case made and provided, and against the peace and dignity of the people of the state of Michigan." The respondent quashed said information upon the ground that the information charged no crime. Relator seeks a mandamus compelling the vacation of said order.

Argued before GRANT, C. J., and BLAIR, MONTGOMERY, OSTRANDER, HOOKER, MOORE, CARPENTER, and MCALVAY, JJ. Elmer N. Peters, in pro. per. Garry C. Fox and Lyman H. McCall, for respondent.

CARPENTER, J. (after stating the facts as above). Under the laws of this state, every person who sells liquor "in quantities of three gallons or less or one dozen quart bottles or less at any one time" is a retail liquor dealer, unless he has given the druggist's bond prescribed by section 5381, authorizing him to sell liquor for medicinal purposes. People v. Utley, 129 Mich. 629, 89 N. W. 349; People v. Wilcox (Mich.) 115 N. W. 973. Emery, the respondent named in the information before us, is not charged with the offense of selling as a retail liquor dealer, nor could he be convicted of that offense, because there is no averment in the information "that he has not given the retailer's bond prescribed by section 5386." People v. Utley, supra. No offense, then, is charged against respondent Emery as a retail dealer of liquors.

Is he charged with the offense of making a sale as a druggist contrary to the provisions of section 5381, Comp. Laws 1897? To bring his case under that section, the logic of People v. Utley requires the information to show by some proper averment that he had given the bond prescribed therein authorizing him to sell liquor for medicinal purposes. It is quite clear that the information contains no such averment. It merely avers that his business "consists in part in the sale of drugs and medicines." Surely no one would infer from this that he had given a bond authorizing him to sell liquor for medicinal purposes. We are therefore of the opinion that the information charged no offense, and that it was properly quashed by respondent.

This reasoning is not in our judgment opposed to People v. Curtis, 95 Mich. 212, 54

* * *

N. W. 767, relied upon by relator. There the information charged that respondent therein named "being then and there a druggist did then and there sell, furnish, and deliver a quantity of spirituous liquor, called 'brandy,' to wit, three drinks of brandy, to one Clinton D. Shoemaker, to be used as a beverage, which said brandy was then and there drank on the premises of said Orrin Curtis. * The sufficiency of this information was assailed because (I quote from the brief filed by appellant's counsel in that case) "there is no charge in the information or other papers that the respondent was not then and there and at the time a saloon keeper with a license and right under the laws of the state to sell the liquor mentioned in said information." We overruled this contention, and that decision is authority for the proposition that it was unnecessary for the information to contain the averment insisted upon. It is true that the opinion in People v. Curtis states that "the information was sufficient." This means, of course, merely this: That it was not open to any of the objections made by counsel. It is not to be taken as authority for the proposition that it was open to no other objection. That case may not be regarded, then, as authority for the proposition that to charge an offense under section 5381 it is sufficient to aver that the person charged with the crime was a druggist. It would certainly be better and safer practice to charge that he had given the bond permitting him to sell as a druggist liquor for medicinal purposes. Even if People v. Curtis is authority for the proposition that, to charge an offense under section 5381, it is sufficient to aver in the information that the offender is a druggist, it would not govern this case, for there is a manifest distinction between a druggist and one whose business "consists in part in the sale of drugs and medicines."

It seems to be thought by some of the counsel in this case that the Utley Case decides contrary to the holding in the Curtis Case that an information charging a druggist with making an unlawful sale must negative his having given a bond as a retail liquor dealer. It does not so decide. It does decide, to repeat, that, as Utley had failed to give the druggist's bond, he was a retail dealer of liquors, and that the information charged no offense "because it does not state that he has not given the retailer's bond."

Since this opinion was prepared, relator has filed a brief calling our attention to Peo ple v. Hinchman, 75 Mich. 587, 42 N. W. 1006, 4 L. R. A. 707. There respondent, Hinchman, under an information substantially like that before us, was convicted for making a sale of liquor as a druggist, contrary to the provisions of section 5381, Comp. Laws 1897. We sustained that conviction. The only objection that was made to the information was this: "It does not show or allege that the

said liquors were sold to be used as a beverage." The point that it failed to aver that Hinchman was a druggist was not made, and that question was not therefore considered. For that reason the case has no bearing.

The mandamus is denied.

OSTRANDER, HOOKER, and MCALVAY, JJ., concurred with CARPENTER, J.

MONTGOMERY, J. (dissenting). This is an application for a mandamus to require the eircuit judge to vacate an order quashing an Information filed in his court, the material part of which was as follows: "Fred H. Emery on the 31st day of August, 1907, at the city of Charlotte, in said county, did sell, furnish and deliver to Ira Ball, certain spirituous, malt, brewed, fermented, vinous and intoxicating liquors, to wit, one bottle of beer to be used as a beverage. He, the said Fred H. Emery, being then and there a person whose business consists in part in the sale of drugs and medicines, and said liquors not being then and there sold for chemical, scientific, medicinal, mechanical or sacramental purposes only, and in strict compliance with law, contrary to the statute in such case made and provided, and against the peace and dignity of the people of the state of Michigan." The question is whether this information charges an offense. It is to be noted that the information is in form such as has been employed in the different circuits of the state for at least 20 years. See People v. Hinchman, 75 Mich. 587, 42 N. W. 1006, 4 L. R. A. 707; People v. Curtis, 95 Mich. 212, 54 N. W. 767. While this is not of controlling force, it is a circumstance that challenges careful consideration of the question. The statute (section 5381 of the Compiled Laws), being a portion of "An act to provide for the taxation and regulation of the business of manufacturing, selling, keeping for sale, furnishing, giving or delivering spirituous and intoxicating liquors," etc., provides in terms that: "It shall not be lawful for any druggist nor for any person whose business consists in whole or in part of the sale of drugs and medicines, directly or indirectly, by himself, his clerk, agent or servant, at any time, to sell, furnish, give, or deliver, any spirituous, malt, brewed, fermented or vinous liquor, or any mixed liquor, a part of which is spirituous, malt, brewed, fermented or vinous, nor to any other person to be used as a beverage." It is obvious from a casual reading of this information that it charges all the essential ingredients of the offense as defined. by the statute quoted. That statute makes it an offense for any druggist or for any person whose business consists in whole or in part of the sale of drugs and medicines to sell liquor to be used as a beverage. In the case of People v. Curtis, supra, one of the errors assigned was that the information, which was in all material re

spects like the one under consideration, set forth no offense known to the laws of the state. In dealing with that question, the court, in its opinion, stated that one of the grounds of error was that the information was insufficient. The holding was that the information was sufficient, and upon the ground that all the statutory conditions which by section 5381, Comp. Laws, are declared to constitute the offense, are set out. It was said: "It is claimed that the information should show negatively that the respondent was not licensed to keep a saloon under other sections of the statute." The answer to this was: "The rule of pleading, however, in either civil or criminal cases does not require this. (Citing cases.) The rule is that in pleading a statute which contains an exception in the enacting clause the party pleading must show that his adversary is not within the exception; but, if there be an exception in a subsequent clause or subsequent statute, that is matter of defense, and is to be shown by the other party."

The case of People v. Utley, 129 Mich. 629, 89 N. W. 349, is relied upon. It will be noted that the charge in that case was that he was a druggist and had sold liquors without giving a druggist's bond. It was said that the liquor law "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 retailer if he sells liquor in quantities of three gallons or less." It was further said: "No druggist sells liquor in compliance with law until he gives a bond." And it is further stated that: "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." The question presented in that case is markedly different from the one which we are considering. The question is not presented on this record as to whether the respondent on the trial might or might not be able to aver and prove that he comes within an exception to the terms of this statute by showing that under a later provision of the statute he has given a bond to engage in the business of selling liquor generally. The point is, as is held in People v. Curtis, that, when the pleader has set out all the essential ingredients of the offense as defined by the statute, no exception ingrafted upon that statute by a subsequent section-if by implication it be held that such an exception is ingrafted upon the statute is a matter of defense, and need not be negatived in the information.

Section 5381 contains other provisions regulating the selling of liquor by druggists. It authorizes the sale of liquor by druggists for

certain purposes upon complying with certain restrictions and conditions, among which are the giving of a bond in a prescribed form. The question is whether in a prosecution where the people prove that the respondent is a druggist, and that he has sold liquor as a beverage, it is essential, in order to make out the case, to show that he has violated other provisions of the same section. I think not. The language of the section quoted in this opinion very clearly defines the offense and makes the offense to consist of any druggist or any person whose business consists in whole or in part in the sale of drugs and medicines, selling liquor to any person to be used as a beverage. If the fact is proven that the respondent is a druggist, and that lie has violated this provision of the statute, it would seem that it would be but an aggravation of the offense that he had also failed to comply with other provisions of the statute relating to druggists.

The writ should issue as prayed.

GRANT, C. J., and BLAIR and MOORE, JJ., concurred with MONTGOMERY, J.

HANEY V. MILLER et al.* (Supreme Court of Michigan. July 1, 1908.) 1. TAXATION-DELINQUENT LANDS-PURCHASE BY STATE.

Where land was returned delinquent for valid taxes, and the state bid in the land at the annual sale in 1893, the state under the tax law then in force, obtained a valid absolute title in fee.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 45, Taxation, § 1463.]

2. SAME-TAX DEEDS-TITLE.

A tax deed from the state conveying delinquent state tax lands conveys the absolute title of the state, subject to the statutory right of the owner to redeem on compliance by him and the grantee with the prescribed conditions.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 45, Taxation, § 1550.] 3. SAME.

A tax deed from the state conveying delinquent state tax land can receive no other construction than a deed between private persons, and the grantee therein is entitled to the performance of the conditions therein according to their exact terms.

[Ed. Note. For cases in point, see Cent. Dig. vol. 45, Taxation, § 1540.] 4. SAME

REDEMPTION-STATUTES.

*

*

Gen. Tax Law, Laws 1893, pp. 388, 393, 394, No. 206, $$ 70, 78, 80, 84, amended by adding §§ 140, 141 (Laws 1897, pp. 294, 295, No. 229), provide for the sale of delinquent lands and the sale of state tax lands, declare that any person may purchase state tax lands by paying "the amount for which the same was bid off to the state with interest," together with other taxes which have been "returned * and remain" a lien, and authorize the redemption by the owner paying the amount paid by the purchaser together with a specified penalty and costs. Land was returned delinquent for taxes, including alleged illegal drain taxes for specified years, and was bid in by the state in 1887. The land was subsequently returned delinquent for valid taxes, and was bid in by the state in 1893. The state sold the land to the *See, also, 117 N. W. 745.

purchaser who paid the amount of all the taxes. Held, that the owner to redeem must pay to the purchaser the amount so paid, and he could not claim a reduction on the ground that the drain taxes were illegal.

McAlvay, Blair, and Ostrander, JJ., dissenting.

Appeal from Circuit Court, Allegan County, in Chancery; Philip Padgham, Judge.

Suit by Elijah Haney against Archie T. Miller and others. From a decree for defendants, complainant appeals. Affirmed.

Argued before GRANT, C. J., and BLAIR, MONTGOMERY, OSTRANDER, HOOKER, MOORE, CARPENTER, and McALVAY, JJ.

Taggart, Denison & Wilson, for appellant. Brown & Farley, for appellee Miller. John E. Bird, Atty. Gen. (Charles W. McGill and George L. Hauser, of counsel), for appellee the Auditor General.

HOOKER, J. The land regarding which this cause arose is the northeast quarter of section 26, T. 4 N., R. 11 W. The west half of this quarter section was returned delinquent for a full line of taxes, assessed thereon for the year 1885, together with reassessed drain taxes for 1881, 1882, 1883, and 1884. None of these were paid, and the land was bid in to the state in 1887. The entire quarter section was returned delinquent for a full line of taxes assessed thereon in the year 1891, and was bid in to the state at the annual sale in 1893. They were held as state tax lands without redemption until June 21, 1904, when they were sold as such to Archie Miller, who received the usual Auditor General's deed, dated August 16, 1904. Notice under Act No. 229, p. 294, Pub. Acts 1897, was duly served, when complainant, who owned the original title and was in possession, tendered the amount of the tax of 1891 with interest, costs, and penalties thereon, and demanded a reconveyance, claiming that prior taxes were void, and refusing to pay them. In short, of $845.40 beside sheriff fees claimed to be due by the terms of the statute, complainant tendered about $90 and a reconveyance being refused, he filed this bill to redeem and remove a cloud upon his title.

As we understand complainant's claim it is that the taxes assessed in 1885 were illegally assessed, unlawfully returned, and unlawfully sold that the Auditor General was not authorized to require their payment, and that if defendant saw fit to pay them he did so at his peril, and must permit the sum so paid by him to be eliminated in the computation of the amount to be paid by him for a reconveyance, under the statute. It appears to be admitted that the drain tax for 1880 was reassessed in the years 1881, 1882, 1883, and 1884. The land was returned delinquent for the regular taxes of 1885 together with the reassessed drain taxes mentioned, when they were bid in to the state at the sale in 1887. The drain proceedings were not produced. it being shown that the files and records were lost. A witness testified to his examination

of the matter, and that the proceedings were void, and that he so informed complainant. He stated certain irregularities on which he based his opinion. It was also shown by oral testimony that contracts were never let and that the drain was never constructed. Upon this is was claimed that the assessment was void and was an unsubstantial foundation for subsequent proceedings. It was also claimed, we understand, that the law did not authorize the reassessment or the return of drain taxes, as it is claimed that the policy of the law then in force did not impose the duty of col lection upon the Auditor General, though it did require a return of delinquent drain taxes to him for the information of nonresident owners. It is contended, therefore, that the purchaser of the state's title paid at his peril the item of the drain tax upon the grounds: First, that the proceedings were irregular and void; second, that the Auditor General had no right to include such a tax-i. e., a drain tax in the price required under section 84 of the tax law. Laws 1893, p. 394, Act. No. 206.

In our opinion this contention is answered by the statutes. It is not denied that these lands were bid in to the state in 1887 and 1893. Whatever may be thought of the validity of the purchase in 1887, that in 1893 resulted in the state obtaining a valid absolute title in fee as we have often held. See Griffin v. Kennedy, 148 Mich. 583, 112 N. W. 756. At the time the state took its title in 1893, sections 140 and 141, Laws 1897, pp. 294, 295, No. 229, under which the complainant makes claim to any standing in this case, were not a part of the tax law, and he was as completely divested of title as though he had conveyed to the state by deed. The state sold the land in 1904. As the law then stood the state parted with the absolute title, but it was subject to a condition, and this condition inured to the benefit of this complainant, for it gave him a right to repurchase his lost land (or to redeem it from the purchaser, as has been sometimes said, and it is unimportant which term is used, for the substance is that the state sold its land subject to a condition to reconvey, not to it, but to its grantor, the original purchaser), when both the grantee and such grantor should severally perform the prescribed condition. As has been recently said, this deed is to receive no other construction than a deed between private persons, the grantee is entitled to the performance of the condition according to its exact terms, the state has no power to impose other conditions, and so far as the injustice of the thing is concerned, there is no difference between the imposition of additional conditions against one or the other of the parties, by legislation, and the same thing by judicial construction, if such is clearly the effect. That is what we are asked to do. We are asked to say that while the statute plainly limits the obligations of the state's grantee to convey, to cases where the adverse party has become entitled to a reconveyance, has paid

or tendered to him the purchase price with certain definitely specified costs, penalties, etc., he may be compelled to take less, and this upon the theory that if the Auditor General has exceeded the requirements of the law, as to the amounts charged, such excess may be disregarded, and the tax title purchaser must lose such excess unless he can prevail upon the state to make him good, and itself lose such excess, which may be a morally just claim against him who would redeem even though not legally enforceable by reason of technical objections, and notwithstanding the fact that sections 140 and 141 were not intended to relieve the original owner from such obligations or to deprive the state of the opportunity to collect all taxes standing against him which it had (in this case) acquired by its purchase, which purchase had resulted in its obtaining the land in fee simple absolute, a legitimate thing for the state to attempt.

In its desire to relieve owners of land from oppression the state has given this opportunity as a shield. It is now sought to use it as a sword, to wring from the state something that it had secured, and in my opinion intended to preserve. Such a right cannot rest upon the language of section 141 which requires from one who would repurchase, payment "to the owner of such tax deed or to the register in chancery of the county in which the lands are located of the amount paid upon such purchase, together with one hundred per cent. in addition thereto and the lawful fees or costs for such personal service, or substituted service, which fee shall be the same as provided by law for service of subpoenas or for orders of publication, or the cost of such service by registered mail, and the further sum of five dollars for each description, without additional cost or charge.” In the fact of this unambiguous condition (without which the original owner would have no rights whatever), it is contended that the condition stated does not mean what it says, but means that a reconveyance must be made upon tender of what the purchaser ought to have paid, instead of what he did pay. The Legislature might have made such a condition, but did not.

What of plausibility there is to this claim seems to rest upon section 84, which gives authority to the Auditor General to sell the state's absolute title to the original owner or anybody else without preference, upon payment of the amount of the state bid with interest, etc., "together with the other taxes which have been returned to the Auditor General and remain a lien on such lands at the time of the purchase so made, with interest," etc. It is not said that the words "and remain a lien," etc., limit the amount that the Auditor General should charge. Of this we may say that when we consider the evident intent of the state to require payment of all previous delinquencies, the regularity of which could not usually be determined from

the records, and if they could, only by an expenditure for legal counsel of a sum exceeding the claim-and the passage of said act at a time prior to the enactment of sections 140 and 141, it seems obvious that the Legislature intended to sell these state tax lands only upon condition that its pre-existing claim for taxes against the land sold, regular or irregular, valid or invalid, could be closed out at par. We can hardly imagine an intention to unsettle the title by subjecting the purchaser to unnecessary uncertainty, loss, and expense by making him take the title subject to the unnecessary obligation of litigating such a question as this, or of making it incumbent upon the Auditor General to ascertain whether returned taxes have flaws in them, and deciding whether the state's lien has been lost or never acquired. We have an intimation that such cannot have been the intention, in the decision of Munroe v. Winegar, 128 Mich. 309, 87 N. W. 396. See, also, Hall v. Miller, 150 Mich. 300, 113 N. W. 1104.

It is contended that these drain taxes were not a valid lien on the land, and therefore the purchaser was not compelled to pay them under that portion of section 84, obligating the purchaser to pay "the other taxes which have been returned to the Auditor General and remain a lien on such land." Another answer to this contention may be suggested, viz., the language above quoted does not apply to taxes which like these drain taxes had ripened into a title held by the state. The purchaser's obligation to pay such taxes arises not from the above quoted language, but from the preceding language of section 84, reading as follows: "Any person may purchase any state tax lands or any state bids at any time except during the annual sale at the county treasurer's office, by paying therefor to the Auditor General the amount for which the same was bid off to the state with interest on the same at the rate of one per cent. per month." This language, construed as it should be in harmony with the preceding sections (note, particularly, sections 70, 78, and 80), requires the purchaser to acquire all tax titles held by the state, and to pay the amount of all bids that the state had made therefor, and in this case it prevented the Auditor General from selling to said purchaser the title acquired by the state for the nonpayment of taxes for the year 1891, unless he purchased the title acquired for the nonpayment of the tax of 1885, and the drain tax in question. Nor do we think this language authorized the Auditor General to investigate and determine that any part of the tax for which the land was sold was invalid. was required to exact "the amount for which the same was bid off to the state with interest." Again, the remedy, through cancellation, may possibly render redress to the repurchasing owner in proper cases, though we do not decide that question.

He

Recurring to section 84. We have seen that these drain taxes were returned, as re

quired by law that they should be. Section 84 requires the payment of "all other taxes which have been returned to the Auditor General, and remain a lien on such lands at the time of the purchase." Many taxes returned to the Auditor General may be paid, others may be canceled, others may be set aside by the courts, in all of which cases the Auditor General would have notice. Doubtless this statute was intended to exclude such from the computation, but it does not follow that we must ascribe an intention so improbable as that urged, thereby creating an unnecessary confusion in the policy of the state to realize upon its tax claims-a large proportion of which are open to the suspicion of irregularity-and making the deficit arising from enforced collection larger than ever. We may take judicial notice of the fact, through ignorance, carelessness, and design, many people do not pay their taxes, there is reason to believe that the expense of attempting to collect them approaches in amount the total sum collected, and the claim is often made that it exceeds such collections. It goes without saying that the deficiency must be made up by good citizens, who not only pay their own taxes, but are thus compelled to pay those of the delinquents as well. The tax department and Legislature have been persistent in their efforts to better this condition, and they have been frustrated by their inability to obtain a strict enforcement of provisions apparently plain. Courts are naturally and properly reluctant to deprive landowners of property by enforcing tax claims where there is a reasonable ground for avoiding it. The statute (sections 140 and 141) was passed to relieve the taxpayer by giving him a last chance to save his land, it apparently being thought that by requiring notice and giving an opportunity to repurchase there would be little excuse for an owner losing his land through inattention.

It was the duty of the Auditor General, under section 84 to refuse a sale to any purchaser, whether original owner or a speculator, who should refuse to pay all taxes, which had been returned, and appeared on his books as outstanding and unpaid, undischarged, uncanceled, or, in some other way, legally invalidated taxes and entries.

The decree should be affirmed, with costs.

GRANT, C. J., and MONTGOMERY, MOORE, and CARPENTER, JJ., concurred.

MCALVAY, J. (dissenting). The record shows that complainant is the owner and has been in possession of the land in dispute for more than 15 years; that said land having been sold to the state December 4, 1893, for the taxes of 1891 returned delinquent was offered for sale as state tax land May 4, 1904, but was not sold; that on August 16th following it was sold by the state to defendant Miller; he was required to pay the sum of