being held in solution thereby. Witch hazel, bay rum and other commonly used toilet preparations likewise contain a high percentage while it is doubtless true that in exceptional cases extracts designed for culinary purposes only are indulged in to such an extent that intoxication is produced, and also that the toilet preparations mentioned have been used for the same purpose with the same result, yet it has never been supposed that the statutes relative to the sale of intoxicating liquors have application. Great numbers of compounds containing a high percentage of alcohol have been manufactured without reference to the legislative enactments regulating intoxicating liquors and have been sold freely by merchants everywhere who have no license for the sale of intoxicants either under the State or Federal government, and without reference to the statutes in question.

The principal question involved in a situation of the character sug gested by you is as to whether or not the compound or mixture sold is of such a nature as to be adapted for use as a beverage. It does not occur to me that the fact that an individual with a morbid and depraved appetite may occasionally use a preparation in such a manner, becoming intoxicated thereon, could be deemed to prove such preparation within the inhibition of the local option law. Upon this proposition, the opinion. of the Supreme Court of this State in the comparatively early case of People v. Hawley, 3 Mich. 330, is of interest. The court, referring to the statutes of the State regulating the sale of intoxicants, said:

"The broad term 'intoxicating liquors' was used, which embraced all liquors used as a beverage and which when so used would or might intoxicate.”

The question has arisen frequently in other states and the practically unanimous holding seems to be in favor of the principles suggested by the Michigan Court. In Walker v. Dailey, 101 Ill. Appeals 575, an action was brought under the Illinois statute to recover for damages sustained by reason of the death of plaintiff's husband from chronic alcoholism. It was shown that the defendant, who appears to have been engaged in business as a retail grocer, sold lemon extract to the deceased. The latter drank the same in excessive quantities with the result indicated. It was shown that said extract contained approximately 95% alcohol and that the oil or lemon therein did not so radically change the same as to make it wholly unfit for drinking. The evidence indicated that some individuals so indulged. The case was submitted to the jury by the trial court upon the theory that if the extract contained such an amount of alcohol that it remained as a distinctive and controlling principal of the mixture, the intoxicating power not being counteracted by the oil of lemon, and if it might fairly be presumed that it might be and was liable to be used as an intoxicating drink, plaintiff was entitled to recovery. The appellate court reversed this decision, saying in part:

"Under these instructions no merchant can sell any article put up for toilet or culinary purposes, which contains alcohol in sufficient quantity to intoxicate if used as a drink, without a license to keep a dram-shop, unless the other ingredients render the article undesirable for use as a beverage. We can not concur in

this view. The entire dram-shop act, including Section 9 under which this suit is brought, is aimed at dram-shops, and those who are engaged, either lawfully or unlawfully, directly or indirectly, in the liquor traffic. If defendant kept and sold lemon extract for culinary purposes only, and if this sale was made without knowledge by defendant or his clerk that it was bought for the purpose of using it as an intoxicating beverage, defendant should not be held liable for the use of the article made by Dailey after he left the store. If, on the other hand, defendant was keeping and selling lemon extract as a mere shift or device to evade the provisions of the dram-shop act, or if defendant or his clerk knew when he sold it that this particular bottle was bought by Dailey for use as a drink, then defendant should be held liable

In the case of such a merchant we regard the question, whether the sale was a shift or device to evade the law of controlling importance...."

The same question arose in the case of Carl v. State, 87 Ala. 17. It was said in part:

"The purpose of prohibitory liquor laws is to promote the cause of temperance and prevent drunkenness. The mode adopted to accomplish this end is the prevention of the sale, the giving away or other disposition of intoxicating liquors. The evil to be reme died is the use of intoxicating liquors as a beverage rather than as an ingredient of medicines and articles for toilet or for culinary purposes; and the object of the law in this particular must not be lost sight of in its interpretation...

The mere presence of alcohol does not prove the article within the inhibition."

Another leading case upon this same proposition is reported under the title of "Intoxicating Liquor Cases," 25 Kas. 751. The opinion of the Court was rendered by Justice Brewer, who said in part, referring to the construction to be placed upon the Kansas enactment:

"The first section prohibits the manufacture or sale of any spirituous, malt, vinous, fermented, or other intoxicating liquors. Now, this language is broad and comprehensive, 'other intoxicating liquors' extends the scope so as to include every liquor which comes within the general definition of intoxicating liquor. And yet if this section stood alone, there would be little doubt as to its meaning. It would include only such liquors as are used as a beverage. No one would think of extending it to cologne, extract of lemon, or any of those many preparations, which although they contain alcohol, the intoxicating factor in all drinks are never used as beverages."

The court then discusses the construction of a subsequent provision of the act which referred in terms to all liquors or mixtures by any name "that will produce intoxication" and directed that such should be deemed to be intoxicating liquors within the meaning of the act. It was pointed out that in accordance with the strict letter of the law any liquor con

taining alcohol was within the statute. Comment is made upon the fact that many domestic preparations, and others used for medicinal pur poses, contain alcohol in different quantities and that intoxication would be produced thereby. With reference to this practice it was said:

"They are seldom used as a beverage and yet they may be. Intoxication produced by drinking bay rum has been known, yet few will drink it........ If the statute includes such articles, many of them are absolutely and wholly shut out from sale. The excepted purposes in the statute are 'medical, scientific and mechanical' but toilet and culinary purposes are not strictly included within any one of the three....

Now what was the evil sought to be remedied by this statute, and the constitutional amendment of which it was an outgrowth? It was the use of intoxicating liquors as a beverage..

The use of intoxicating liquors as a beverage was the evil and the statute must be read in the light thereof. It intended to put a stop to such use and limit the use to the necessities of medicine."

To the same effect is the decision of the Supreme Court of Massachusetts in the case of Commonwealth v. Ramsdell, 130 Mass. 68. The complaint in this case charged the offense of exposing and keeping for sale intoxicating liquors with intent to sell the same. The defendant was an apothecary and had no license to sell liquors. It was found by the jury that the liquors were kept for the sole purpose of mixing them with other ingredients to be used as medicine. The trial court practically directed a verdict of guilty. The Supreme Court, however, reversed the case, saying:

"It is not a reasonable construction to hold that the statute prohibits the sale of every medicine or article of food in the preparation of which liquor is used. In order to determine whether the statute applies to a sale the true test is to inquire whether the article sold is in reality an intoxicating liquor. If it is, the sale is illegal, although it is sold to be used as a medicine, or it is attempted to disguise it under the name of medicine, or it is a mixture of liquor and other ingredients, (citing cases) but if the article sold cannot be used as an intoxicating drink, it is not within the prohibition of the statute although it contains as one of its ingredients some spirituous liquor. The sale of such article. is not within the mischief intended to be remedied by the statute."

Based upon these decisions and others along the same line, the general rule is laid down in Cyc. Vol. 23, page 58 as follows:

"A compound which is distinctively known and used as a drug, medicine, or toilet preparation, and which can not practically be taken as a beverage for the sake of the alcohol which it contains; because of its repulsive taste or smell, because the effect of the alcohol is counteracted by the other ingredients or because of its systematic effects if taken in excessive doses, is not within the statutes relating to intoxicating liquors no matter how much a proportion of alcohol it may contain; and on the other hand, a medicinal preparation which is capable of being used as a bev

erage and which contains such a percentage of alcohol that it will produce intoxication if drunk to excess is within the meaning of such statutes, although it may contain other constituents which either separately or in conjunction with alcohol possess useful medicinal properties. Although this is the generally accepted rule, some decisions have made the determination of the question depend upon the intention of the buyer as to the use to be made of the compound, or upon the knowledge and intention of the seller."

Again with reference to the sale of alcohol in preparations sold under the name of "Bitters" it is said:

"The various infusions called 'Bitters' containing alcohol together with bitter herbs, barks, or other medicinal ingredients are subject to the laws regulating the sale of intoxicating liquors, if, notwithstanding the presence of the medicinal ingredients, they are capable of being used as beverages and containing sufficient alcohol to produce intoxication when so used; but not if they are incapable of being used as drinks and where the alcohol is merely a necessary preservative or vehicle for the other constituents."

It follows from these authorities that the question involved in a case of the character under consideration is primarily one of fact. Is a compound or mixture so constituted as to be susceptible of general use as a beverage? If so, it must be deemed to be within the scope of the local option law and the legality of its sale is to be determined accordingly. On the other hand, if the production is of such a nature as to render it practically unfit for use as a beverage, it can not be deemed to be an "intoxicating liquor" within the meaning of the statute.

decisions of the Supreme Court of this State, it would seem to be immaterial whether the vendor intended the preparation to be used for medicinal purposes if such preparation is in fact a beverage. I call your attention upon this point to the case of People v. Hatinger, 174 Mich. 333.

I am not informed as to the composition of the two so-called patent medicines mentioned in your letter, nor as to whether the same are adapted for use as beverages. As suggested, this is a question of fact and in case a criminal prosecution is instituted, the burden of proof would, of course, rest upon the people. From an examination of the authorities, it does not occur to me that the fact that individuals having depraved or morbid appetites indulge in the use of a preparation to such an extent as to become intoxicated would be decisive. Otherwise, such articles as witch hazel, bay rum and various extracts would necessarily be within the scope of the statutes relating to intoxicating liquors. It would seem rather that proof must be introduced tending to establish the possibility of use generally as a beverage. Quite likely from the investigation that you have made you have come to some conclusion along this line. If you desire to have the different mixtures examined by the State Analyst, I would suggest that you send them directly to F. L. Shannon, Lansing, Michigan, or preferably, that they be delivered to Mr. Shannon personally by some officer of your county. In this way there is less opportunity for a question to arise as to the possession of

the preparations pending the analysis and the subsequent proceedings. Accordingly we are returning to you by express the package containing the bottles referred to in your letter.

C'a-v-O

Respectfully yours,
GRANT FELLOWS,

Attorney General.

July 16, 1914.

J. C. Ball, Silverwood, Michigan:

Dear Sir-In your letter of July 1st, you request the opinion of this Department upon the following questions: 1st. As to whether a person can hold the office of school treasurer and member of the Board of Review at the same time. 2nd. Whether a person who is moderator can also hold the office of road commissioner.

In your inquiry you fail to state whether the school district is what is known as the township unit district or the ordinary school district. If the district is incorporated under the so-called township unit system, being Act 117 of the Public Acts of 1909, it would not be competent for you to hold both offices. Section 21 of this Act provides:

"The several township officers shall be ineligible to election as member of the board of education during the term for which they were elected and any votes cast for such township officers for member of the board of education shall be void."

You will therefore see that if you are organized under this Act you would be ineligible to become a member of the Board of Education. However, if your school district is not organized under this Act it is the ruling of this Department that a member of the Board of Review or a highway commissioner is not ineligible to hold any school office. Respectfully yours, GRANT FELLOWS, Attorney General.

F-pi-O

SCHOOL LAW. In a school district organized under the Township Unit System the Supervisor of such Township is ineligible to membership of the Board of Education thereof, but is not ineligible where the district is not organized under this Act.

M. A. Bates, Grayling, Michigan:

July 16, 1914.

Dear Sir-Your communication of the 1st inst. wherein you request the opinion of this Department as to whether you can legally hold the office of School Director and Supervisor of your Township at the same time, has been received.

In your inquiry you fail to state whether the school district is what is known as the township unit district or the ordinary school district. If the district is incorporated under the so-called township unit system,