I concur in the judgment, but not with that assured conviction of the validity of my conclusion which in a matter so important I should wish to feel. If the cause were to be decided with sole reference to the terms of the ordinance, unaffected by any extrinsic circumstance, it would be impossible for me to say, in view of the admitted facts, that the defendant is not carrying on the business of a retail liquor dealer. The numerous decisions cited by its counsel in support of the opposite view are either distinguishable on what appear to me substantial grounds, or, where strictly in point, rest upon reasoning which, to my mind, is not satisfactory. If we had been called upon, shortly after its adoption, to give a construction to the ordinance of 1903 (of which the existing ordinance is in every material particular a mere re-enactment), I should not have entertained a doubt that the California Club was clearly within its terms.
But it is conceded that during the whole period of five years between the adoption of the ordinance of 1903 and its re-enactment in 1908, no demand was ever made upon the club for the payment of a license-tax, and it seems to be an unavoidable inference from this circumstance that it was the common understanding of the municipal authorities that the course of dealing between the club and its members and guests was not the carrying on of the business of retailing liquors. It was, in other words, a contemporaneous construction of the ordinance by those who enacted it, and the fact that it was re-enacted in the same terms seems to justify the conclusion that the intention of its framers was that it should have no wider operation than that to which it had been so long restricted. *Page 318