delivered the opinion of the court:
Plaintiffs in error, defendants in the court below, were convicted of keeping open on Sunday a place in which spirituous, vinous, malt and other liquors were kept, sold, bartered, exchanged or given away, and of therein selling intoxicating liquors on said day, contrary to the provisions of Section 1805, R. S. 1908. They were sentenced to pay a fine, and bring the cause here for review.
The case was tried upon an agreed statement ol facts. Defendants were the officers and directors, and had actual charge and management of the Cafe Mozart, a “regular restaurant” conducted in the City and County of Denver, serving meals to its patrons, day and night, and furnishing with such meals, for an additional price, intoxicating liquors in quantities less than a quart, to patrons, desiring the same. The defendants admit the sale of liquor in small quantities after midnight and apon Sunday in the restaurant, and the drinking of the same therein, but claim that because such sales were made in connection with meals, the law was not violated.
The statute requires, inter alia, that “every saloon, bar or other place where” liquors are sold or kept be closed at midnight, and on Sunday, and prohibits, during such time, the.sale of liquor therein. The defendants claim that as the word “restaurant” is'not specifically mentioned in the statute, it is necessarily excluded from its operation under the rule of construction known as “ejusdem generis.”
The contention is not sound for the simple reason *469that in its generic sense the word “saloon” includes restaurant or eating room, as well as a bar-room or grog-shop. Indeed, in such sense the word does not necessarily indicate a place where intoxicating liquors or even liquid refreshments are sold. It may mean a spacious and elegant apartment for the reception of company or for works of art; a hall of reception; a large room or parlor; a hall for public entertainment or amusement; also,, a public room for specific uses, as the saloon of a steamer, (i. e., the main cabin), or it may mean an eating saloon.—Webster’s New International Dictionary, Cardillo v. The People, 26 Colo. 355, 58 Pac. 678.
The word is not so used, however, in this statute. This was determined in Cardillo v. The People, supra, where we held that it is here used “in the sense of a barroom or grog-shop or drinking saloon kept for supplying intoxicating liquors.” We ascribed that meaning to the word, because the title of the act necessarily so limited its sense, and, for the further reason, that a statute in pari materia defines a saloon as “any place where spirituous or vinous liquors are sold in quantities less than one quart. ’ ’
A restaurant that is used solely as an eating saloon, therefore, does not come within the terms of the statute.—City of Denver v. Domedian, 15 Colo. App. 36, 60 Pac. 1107. It is equally certain, however, that a restaurant where intoxicating liquors are kept and habitually sold to the public in small quantities, does come within its terms, for it is then a “saloon or other drinking place” within the meaning of the law.
In Scanlon v. City of Denver, 38 Colo. 401, 88 Pac. 156, a conviction had under an ordinance entitled, “An ordinance concerning the licensing and regulating of dram shops and tippling houses” was under review. We there said: “It is defendant’s contention that this section of the ordinance was not intended to include bona fide keepers of restaurants, as evidenced by the title, *470which, relates solely to dram shops and tippling houses. He says that a restaurant is not a dram shop or tippling house. This, however, depends upon the character of the business that is carried on therein. That business may be so conducted in a restaurant as to constitute 'it a tippling honse under the meaning of that term as defined in the authorities, is beyond doubt.”—Harris v. The People, 21 Colo. 95, 98, 39 Pac. 1084, involved a conviction under this statute. The facts were the defendant kept a grocery store in -which he likewise kept and sold bottled goods and beer in small quantities to any person who called for it. We there said: “The sale of liquor was made in small quantities, and the invitation and the opportunity for drinking the same were furnished by the defendant to purchasers; and these facts, tog-ether with the fact that the house was kept open on the Sabbath day, were sufficient to convict. It is undoubtedly true that if one keeps open on the Sabbath day a public house where intoxicating liquors are sold in small quantities and drunk on the premises, he violates the statute. * * '* The evil intended to be prohibited by this statute consists in keeping open a public house where liquor is sold in small quantities, and the opportunity is given to purchasers to drink it on the premises.”
The name by which a place is called does not, in law, fix its status. The character of a place, what it really is, is fixed and determined by that which habitually takes place therein. If the place be open to the public to whom meals are regularly served, it is an eating saloon; but if intoxicating liquors are likewise so ■ -habitually served therein, it is also a drinking-saloop. Nor can this be affected by the comparative number of sales of food and sales of liquor, or the comparative revenue derived from one or the other. The test of the character of the place can not be: What is its principal business, but what business is there habitually carried on? If it consists, in whole or in part, of habitually selling intoxicating liquors *471in quantities less than one quart, to the public generally, it is a saloon or other drinking place within the meaning of the law.
As said in Hussey v. State, 69 Ga. 54, 58: “It makes no difference in law whether the place be called a barroom, or a glee-club resort, or a parlor, or a restaurant, if it be a place where liquor is retailed and tippled on the Sabbath day, with a door to get into it, so kept that anybody can push it open and go in and drink, the proprietor of it is guilty of keeping- open a tippling house on Sunday. It makes no difference if the drinking be done standing or sitting — at a bar or around a table — it is tippling, and the place where it is done is a tippling house; and if anybody wishing to drink can have access thereto — if ingress and egress be free to all comers — it is a tippling house, kept open on Sunday.”
The several legislative acts requiring licenses for the sale of intoxicating liquors in less than a designated quantity, the places where, and the time when the same may be sold, are parts of one system, governed by one spirit and policy and must be construed so as to be consistent and harmonious, one with the other and in their several parts.—The People v. Gibson, 53 Colo. 231, 237, 125 Pac. 531. When so construed it is certain that the place described in the stipulation herein constitutes a saloon or other drinking place within the meaning of the law. To sell) exchange or-dispose of intoxicating liquors for gain, or knowingly permit the same to be done on his premises, in less quantities than one gallon, it is provided that every person — (except those enumerated in §§5521, 5522, E. S. 1908, to which class defendants do not belong) —must have a legal license therefor, §§ 1798, 1799, 4005, E. S. 1908; and a license granted for such purpose shall not authorize the person obtaining the same to sell such liquors in more than one place or house, and every license shall describe the house and place intended to be occupied. — § 3995, E. S. 1908. It is then declared that all *472places where spirituous or vinous liquors are sold by quantities less than one quart shall be deemed to be a saloon, § 3996, E. S. 1908; and by § 1805, E. S. 1908, that every saloon or other place where intoxicating liquors are kept or sold shall be closed on Sunday and after midnight, etc. It is admitted that defendants had a license to sell liquors in less quantities than one quart in the Mozart Cafe, and habitually made such sales therein. The legislative pronouncement is, that such places are saloons, and that they be closed during certain hours. Moreover, the evil of permitting people to congregate in places of public resort and indulge in drinking of intoxicating liquors upon Sunday or after midnight is not lessened by the fact that in restaurants patrons are able to obtain food as well as liquor and may be seated while they drink. No reason is apparent for stopping the sales of liquors over bars at midnight and on Sunday that is not equally applicable to such sales at such times in restaurants or other public drinking places. However, as to the wisdom of such laws we have no concern. The law being clearly an exercise of the police power of the state must be upheld, whatever may be our individual views as to its wisdom. 'Whether patrons of such restaurants could be supplied therein with intoxicating liquors from adjoining or nearby saloons during the time such places are authorized to keep open and sell liquors, and such transactions not make of such restaurants, saloons within the meaning of the law, should not be determined herein. That question is not involved under the stipulation of facts upon which this case is determined.
The judgment is affirmed.
iJudgment Affirmed.
Decision en banc.