(dissenting). The sole question in this case is whether a certain incorporated club, organized “in good faith, for social and literary purposes, and not for profit, and not with any intent to circumvent or violate any of the laws of the district of Alaska,” and owning and maintaining a clubhouse in the city of Nome, of that territory, and “furnished as a reading room, dining room, billiard and pool room, also' a kitchen and buffet or bar, of the value of about fifteen thousand dollars, and known as the ‘Log Cabin,’ ” the monthly expenses of which are about $1,000, and the receipts of which, from all sources, which are derived from its members, do not materially exceed the expenses, is required to procure a license as authority to dispose of wines and liquors to its members.
The status of such clubs in respect to that question, under the statutes and ordinances of the various states, has been the subject of consideration by the Supreme Court of many of the states, the decisions of which are irreconcilable, and which conflict has been often referred to by text-writers. It is fair to presume, therefore, that Congress was well aware of the conflicting state decisions. And such presumption is strengthened into practical certainty by the fact that in passing, on the 3d day of March, 1893 (27 Stat. 563, c. 204), the act entitled “An act regulating the sale of intoxicating liquors in the District of Columbia,” prohibiting, among other things (except as provided in the act), the sale within the District of Columbia of any intoxicating liquor,therein declared “to include whisky, brandy, rum, gin, wine, ale, porter, beer, and” all other fermented and distilled liquors,” and creating an excise board to which all applications for license to sell such intoxicating liquors should be presented Congress expressly provided that: “The said excise board may in its discretion Issue.a license to any duly incorporated club on the petition of the officers of the club, and that the said excise board may in its discretion grant a permit to such club to sell intoxicating liquors to members and guests between such hours as the board aforesaid may designate in such permit.”
*313By section 5 of that act Congress made various provisions respecting applications “for a barroom license,” and, among other things, defined as constituting a barroom “every place where intoxicating liquors are sold to be drunk on the premises shall, for the purpose of this act be regarded and considered a barroom, and the possession of intoxicating liquors and the selling or disposing of the same to be drunk on the premises shall constitute and make the place a barroom,” with certain provisos not important to be mentioned.
It is thus seen that Congress, in its enactment of March 3, 1893, supra, did not leave any uncertainty as to whether in the District of Columbia a duly incorporated club is required to secure a license for the sale of intoxicating liquors. In the light of that enactment we are to consider its legislation for the district of Alaska upon the subject in question, in none of which has there ever been any express provision for a license to an incorporated club. By section 14 of the act of May 17, 1884, providing a civil government for Alaska (23 Stat. 24, 28, c. S3), it was enacted that: “The importation manufacture and sale of intoxicating liquors in said district [of Alaska] except for medicinal, mechanical, and scientific purposes is hereby prohibited under the penalties which are provided in section nineteen hundred and fifty-five of the Revised Statutes for the wrongful importation of distilled spirits. And the President of the United States shall make such regulations as are necessary to carry out the provisions of this section.”
By section 1955 of the Revised Statutes the President is given — “power to restrict and regulate or to prohibit the importation and use * * * of distilled spirits into and within the territory of Alaska. * * * And any person willfully violating such regulations shall be fined not more than $500, or imprisoned not more than six months.”
By the executive order of May 4, 1887, the landing of intoxicating liquors at any port or place in the territory of Alaska is prohibited, except upon a permit of the chief officer of the customs at such port or place, to be issued upon evidence satisfactory to such officer that the liquors are imported and are to be used solely for sacramental, medicinal, mechanical, and scientific purposes. By the executive order of March 12, 1892, the sale of intoxicating liquors for me*314dicinal, mechanical, and scientific purposes can be made only by such persons in the territory as shall have obtained a; special permit from the governor of the territory to sell' intoxicating liquors therein upon certain specified conditions. Endleman v. United States, 86 F. 457, 30 C.C.A. 186.
By the Penal Code of Alaska of March 3, 1899, as amended and now embraced in the Compiled Statutes of that territory, the above-mentioned statutes and orders were repealed, and the following provisions enacted: “Sec. 2569. That any person or persons, corporation, or company prosecuting or attempting to prosecute any of the following lines of business within the district of Alaska shall first apply for and obtain license so to do from a District Court or a subdivision thereof in said district, and pay for said license for the respective lines of business and trades as follows, to wit: [Enumerating various classes of business and the amounts to be paid per annum].”
The next section provides a penalty for doing business in violation of the provisions of section 2569. Section 2571 is' as follows: “That no person, corporation, or company shall sell, offer for sale, or keep for sale, traffic in, barter, or exchange for goods in said district of Alaska any intoxicating liquors, except as hereinafter provided; but this shall not apply to sales made by a person under provisions of law requiring him to sell personal property. Wherever the term ‘intoxicating liquors’ is used in this act, it shall be deemed to include whisky, brandy, rum, gin, wine, ale, porter, beer, hoochinoo, and all spirituous, vinous, malt, or other fermented or distilled liquors.”
Subsequent sections provide for the issuing of licenses and the proceedings to be taken therefor. Section 2577, so far as pertinent, is as follows:
“That the liquor licenses authorized and provided for by this act shall be of two classes, namely, wholesale and barroom. * * * That the fee for a wholesale license shall be two thousand dollars per annum, and for a barroom or retail .license one thousand dollars per annum: Provided, that the fee for a retail license for road-houses on regular post-roads or trails where the population within two miles of the place where the business is to be conducted does not *315exceed fifty people, or for a steamboat or steamer operating on the inland rivers of Alaska during the season of open navigation, shall be five hundred dollars per annum: Provided, that said steamboat or steamer shall not be authorized to sell intoxicating liquor while in port or dock: And provided, that the words towns, camps, or settlements, as used in this act shall be construed to embrace the population within a radius of two miles of the place wherein the business is to be conducted under the license.
“That a retail or barroom license shall be required for every hotel, tavern, boat, barroom, or other place in which intoxicating liquors are sold at retail. * * *
“That every place where distilled, malt, or fermented wines, liquors, or cordials are sold in quantities as prescribed for retail dealers by section thirty-two hundred and forty-four of the Revised Statutes of the United States, to be drunk upon the premises, shall be regarded as a barroom; and the possession of malt, distilled, fermented, or any other intoxicating liquors, with the means and appliances for carrying on the business of dispensing the same to be drunk where sold, shall be prima facie evidence of a barroom within the meaning of this act, and the license therefor shall be known as a barroom license: Provided, that no license shall be granted for the sale of liquors at either wholesale or retail in any other than a substantial building which shall have cost for construction not less than five hundred dollars.
“Sec. 2578. That every person receiving a license to sell under this act shall frame it under glass and place it in a conspicuous place in his chief place of sale of such liquor, so that any one entering such place of sale may easily read such license.
“Sec. 2579. That all applicants for license and persons holding licenses shall allow the clerk of the court, or any United States marshal or deputy United States marshal, or any United States commissioner, full opportunity and every facility to examine at any time during business hours the premises where intoxicating liquor is sold, and for which a license has been asked or has been granted.”
“Sec. 2581. That any one engaging in the sale of intoxicating liquors, as specified in this act, in the district of *316Alaska, who is required by it to have a license as herein specified, without first having obtained a license to do so as herein provided, or any person who shall engage in such sale in any portion of the district where the sale thereof is prohibited, upon conviction thereof shall be fined not less than one hundred dollars nor more than two thousand dollars, or be imprisoned for not less than one month nor moire than one year; and upon every subsequent conviction of a like offense shall, in addition to the penalty above named, be imprisoned not less than two months nor more than one year.”
Section 2582, among other things, provides:
“That no minor under sixteen years of age shall be-allowed to enter any place where liquors are sold, other than a hotel, without the consent of the parent or guardian of such minor.”
“Sec. 2584. That license for any of the purposes specified shall not be granted to any person to conduct such business within four hundred feet of a public schoolhouse, private school, or house of religious worship, except in such places of business as may have been located previous to the erection or occupation of such schoolhouse, private school, or house of religious worship owned or occupied in the district of Alaska, measured between the nearest entrance to each by the shortest course of travel between such place of business- and the schoolhouse, private school, or house of religious worship.”
I am of the opinion that the foregoing existing legislation of Congress for the territory of Alaska does not apply to a duly incorporated club for purely social and literary purposes, first, because it is reasonable to think that as Congress, in order to avoid the conflict and consequent uncertainty that exists in the laws of the various states upon the subject, expressly declared in its legislation for the District of Columbia that that liquor legislation should apply to such clubs in that District, it would have made like specific reference to such clubs in its similar legislation for the territory of Alaska had it been its intention to include them therein;., and, secondly, because the very language of the enactment for the district of Alaska clearly indicates to my mind that it was not intended to apply to such clubs. This I think ap*317parent from each section of the statutes in which reference is made to the licensing of the liquor traffic. Throughout it is spoken of as a business; but to guard against any evasion of its requirements it specifically provided, as has been seen in section 2577: “That every place where distilled, malt, or fermented wines, liquors, or cordials are sold in quantities as prescribed for retail dealers by section thirty-two hundred and forty-four of the Revised Statutes of the United States, to be drunk upon the premises, shall be regarded as a barroom; and the possession of malt, distilled, fermented, or any other intoxicating liquors, with the means and appliances for carrying on the business of dispensing the same to be drunk where sold, shall be prima facie evidence of a barroom within the meaning of this act, and the license therefor shall be known as a barroom license: Provided, that no license shall be granted for the sale of liquors at either wholesale or retail in any other than a substantial building which shall have cost for construction not less than five hundred dollars.”
In other words, whatever the place, means, or appliances resorted to for carrying on the business of dispensing the wines, liquors, etc., “to be drunk where sold, shall be prima facie evidence of a barroom within the meaning of this act, and a license therefor shall be known as a barroom license.” The next section — 2578 — also clearly indicates that the act was not intended to apply to incorporated clubs for purely social and literary purposes, for it expressly declares, as has been seen: “That every person receiving a license to sell under this act shall frame it under glass and place it in a conspicuous place in his chief place of sale of such liquor, so that any one .entering such place of sale [italics mine] may easily read such license.”
The inapplicability of the act is further manifested by the next section — 2579 — which reads, as has been seen: “That all applicants for license and persons holding licenses shall allow the clerk of the court, or any United States marshal or deputy United States marshal, or any United States commissioner, full opportunity and every facility to examine at any time during business hours the premises [italics mine] where intoxicating liquor is sold, and for which a license has been asked or has been granted”
*318—and by section 2581, which provides: “That any one engaging in the sale of intoxicating liquors as specified in this, act [italics mine] in the district of Alaska, who is required by it to have a license as herein specified, without * * * having obtained a license to do so as herein provided”
—shall be punished' in a prescribed way upon conviction thereof, and is further manifested by the provisions of section 2584, which declares: “That license for any of the purposes specified .shall not be granted to any person to conduct such business [italics mine] within four hundred feet of a public school-house, private school, or house of religious worship”
—with certain exceptions not necessary to be stated.
A club organized for purely social and literary purposes has no “business hours,” and is rarely, if ever, open to the public, but, on the contrary, is designed solely for the use, comfort, benefit, and enjoyment of its members and guests;, and such an establishment “within four hundred feet of a public schoolhouse, private school, or house of religious' worship” was not, I think, intended to be prohibited by Congress.