The plaintiff in error, Frank Sprekelsen, was convicted in the district court of the crime of selling whisky without a license. From that judgment he brings error.
The question to be decided is fairly and accurately stated by counsel for plaintiff in error in his brief, and is as- follows : “Whether the Cheyenne Lodge No. 660 of the Benevolent and Protective Order of Files, whose objects are to inculcate the principles of charity, justice, brotherly love and fidelity; to promote the welfare and enhance the happiness of its members; quicken the spirit of American patriot*424ism; to cultivate good fellowship; to perpetuate itself as a fraternal organization, and to promote for its government, the Benevolent and Protective Order of Elks of the United States of America, can dispense liquor to its members, receiving either cash or a check for the same, in accordance with the regulations of the governing.board of said order, and dispense such liquor hy and through its steward, who was an employee of said organization, and who, in the case at bar, was the above named Frank Sprekelsen, plaintiff in error; and whether the said organization, for the dispensing of such liquor, had to have a retail liquor license under the laws of the State of Wyoming?”
There is no dispute as to the facts. The organization is a bona fide lodge of Elks, incorporated under the laws of Wyoming, owning its building, consisting of its lodge rooms, reading room, card rooms, billiard room, and a room used as a buffet, in which are kept intoxicating liquors, which are dispensed to its members only, each paying for what he orders and receives. That the furnishing of such liquors is not the principal business of the organization, but merely incidental to its objects and purposes. There is no dispute as to the sale of a drink of whisky to one of the members for fifteen cents by the steward, Sprekelsen, if such a transaction constituted-a “sale” within the meaning of the statute. The statute under which the conviction was had is as follows :
“Every person who shall sell, barter, or give away any spirituous, malt, fermented or intoxicating liquor or wine by the glass, or to be drunk on the premises, or by bottle, or in less quantity than by the case of five gallons at any time, shall be known as a retail liquor dealer. Any person who shall sell or give away any such liquor or liquors, wine or wines by the case or in quantities more than five gallons at a time, shall be known as a wholesale liquor dealer. Each retail liquor dealer shall pay for a license hereunder, the sum of one thousand dollars, payable annually in advance. Each wholesale dealer shall pay for his license the sum of three hundred dollars, payable annually in advance. A re- *425‘ tail license granted under the provisions hereof shall a-lso' authorize a person to sell by wholesale. No person or persons within the state, directly or indirectly, in person or by agent or employee, shall vend, sell, barter or dispose of for any pecuniary advantage,. any spirituous, malt, fermented or intoxicating liquors or wine without first obtaining a license therefor as provided in this chapter. Every person who shall violate any provisions of this section shall be fined in the sum of one hundred and fifty dollars, together with the costs of suit, for each and every offense, and shall be confined in the county jail until such fine is paid, or until otherwise discharged according to law. In case of any violation hereof by any corporation, every officer, agent or employee making, or in any way countenancing or conniving at any sale or sales in violation hereof shall be deemed and held a person making such sale or sales liable to the pains and penalties herein imposed.” (Section 2832, Comp. Stats. 1910.)
The main contentions of counsel for plaintiff in error are: (1) that the transaction did not constitute a sale; and (2) that, if it be held to have been a sale, the Elks Lodge was not a retail liquor dealer and was not engaged in business as a retail dealer, and was not therefore required to procure a license. There-is some conflict in the decided cases as to whether or not such transaction constitutes a sale. The cases holding that it does not, generally .put it on the ground that it is an equitable distribution of property among the owners in common of the property; but that doctrine has no application to the case at bar. Here the lodge, a corporation — a distinct legal entity having power and authority to own, control and sell property— was the absolute and unqualified' owner of the property and had it in its possession. It parted with its title, possession and right to possession to another for a valuable consideration. Not a single-element of a valid sale is wanting in the transaction. That the transaction constituted a sale is supported by abundant authority, and we deem it necessary to cite only a few of the many cases so holding. (Martin’s *426case, 59 Ala. 34; Beauvoir Club v. State, 148 Ala. 643, 42 So. 1040, 121 Am. St. Rep. 82; The Manassas Club v. The City of Mobile, 121 Ala. 561, 25 So. 628; Manning v. Canon City, 45 Colo. 571, 101 Pac. 978, 23 L. R. A. N. S. 192; Lloyd v. Canon City, 46 Colo. 195, 103 Pac. 288; Canon City Labor Club v. People, 21 Colo. App. 37, 121 Pac. 120; Ada County v. Boise Commercial Club, 20 Idaho, 421, 118 Pac. 1086, 38 L. R. A. N. S. 101; People v. Law & Order Club, 203 Ill. 127, 67 N. E. 855, 62 L. R. A. 884; South Shore Club v. The People, 228 Ill. 75, 81 N. E. 805, 12 L. R. A. N. S. 519, 119 A. S. Rep. 417, 10 Ann. Cas. 383; State v Shumate, 44 W. Va. 490, 29 S. E. 1001; Army & Navy Club v. Dist. of Columbia, 8 App. D. C. 544; People v. Soule, 74 Mich. 250, 2 L. R. A. 494, 41 N. W. 908; State v. Minnesota Club, 106 Minn. 515, 20 L. R. A. N. S. 1101, 119 N. W. 494.) Many more decisions holding such transactions by clubs to be a sale are to be found in the reports. We can see no good reason for holding that a transaction by an incorporated social club, which if it had to do with other property owned by it would unquestionably be held to be a sale, should not likewise be held to be a sale when the subject is intoxicating liquors. The case of Russell v. State, 19 Wyo. 270, 116 Pac. 451, is cited by counsel for plaintiff in error as decisive of this case. But the question here presented was not in that case. The trial court in that case submitted to the jury the question of the purpose for which the club was formed, and the jury found against the. defendant, and all that this court said was that the instruction was as favorable to defendant as he could ask. But on the question now being presented we hold that the instruction in the Russell case was more favorable to the defendant than he was entitled to.
The next question to be determined is whether the Elks Lodge was a retail liquor dealer within the meaning of the statute. Oh that question the authorities are also conflicting, and in the cases holding such clubs are not required to pay a license the decisions have been based largely on the particular language of the statute or ordinance. The statute, *427for the violation of which the plaintiff in error was convicted, in clear and unambiguous language declares who shall be known as a “retail liquor dealer” and includes “every person who shall sell,” etc. No exceptions whatever are to be found in the definition placed on the term by the Legislature. The Legislature having thus clearly defined who “shall be known as a retail liquor dealer,” that definition must be accepted by the courts and they are not at liberty to give to the term a different meaning as they might be called upo.n to do had the term not been defined in the statute. Under the United States statute which reads: “Every person who sells, or offers for sale, malt liquors, in less quantities than five gallons at one time, but who does not deal in spirituous' liquors, shall be regarded as a retail dealer in malt liquors,” the federal courts have Held that such clubs or organizations as the lodge in this case are retail dealers as defined by that statute and are' required' to pay a revenue tax. (United States v. Gilder, 54 Fed. 656; United States v. Wittig, 28 Fed. Cases, 744, case number 16748; United States v. Alexis Club, 98 Fed. 725.) A number of the cases cited in the former'paragraph of this 'opinion also apply to the point'now being considered. In addition to those we also refer to City of Spokane v. Baughman, 54 Wash. 315, 103 Pac. 14: Mohrman v. State, 105 Ga. 709, 32 S. E. 143, 43 L. R. A. 398, 70 Am. St. Rep. 74; Marmont v. State, 48 Ind. 21; State v. Boston Club, 45 La. Ann. 585, 20 L. R. A. 185, 12 So. 895; Kentucky Club v. City of Louisville, 92 Ky. 309, 17 S. W. 743; Newark v. Essex Club, 53 N. J. L. 99, 20 Atl. 769; State v. Lockyear, 95 N. C. 633, 59 A. Rep. 287. We have not attempted a review of the decisions. To dó so'would'fill a volume.' We are, however,' convinced that the better reasoning and weight of authority sustains our conclusions. We do not think that it can be fairly deduced from the plain language of the statute that the Legislature intended to exempt from the operation of the statute every bona fide fraternal society, social or other club, or union in the state which might see fit to establish a “buffet”' in its meeting place and to sell to *428its members intoxicating liquors without restriction and without contributing to the revenues of the city or state.
It is suggested that our construction of the statute would require every one who serves a guest with wine at dinner in one’s own home would be required to have a license or be subject to a fine, and that such was not the intention of the Legislature. But the statute does not so provide. That is criminal only which the statute declares to be so, and it does not prescribe any penalty for the giving away of liquor. The language is: “N0 person or persons within this state, directly or indirectly, in person or by agent or employee shall vend, sell, barter or dispose of for any pecuniary advantage, any spirituous, malt, fermented or intoxicating liquors or wine without first obtaining a license therefor as provided in this chapter.” Thus it will be seen that the giving away of liquor without consideration is not made a crime, nor is any penalty prescribed for so doing.
The court sustained an objection to the' following question: “What is the fact, Judge Matson, does a member lose his particular property right in the whisky by having it distributed to him by the drink ?” The ruling is assigned as error. The ruling was clearly right. The question called for the conclusion of the witness on a question of law.
Two instructions given to the jury are complained of. The first correctly stated the. substance of the statute under which the prosecution was had; and by the other the jury was told that if it found from the evidence beyond a reasonable doubt that defendant had violated the provisions of the statute he should be found to be guilty; otherwise he should be acquitted. The instructions were applicable to the issues and evidence in the case and contained nothing of which the defendant could rightfully complain.
The court refused to instruct the jurjq as requested by the defendant, to the effect that the distribution of intoxicating liquors to members of bona fide clubs, such as the Elks Lodge in this case is admitted to be, does not constitute a sale within the meaning of the statute, and that such clubs are not required to pay a license. We have already *429in the former part of this opinion held otherwise, and nothing further need be said on that subject. As we construe the statute those instructions were properly refused.
Upon the facts in the' case as they are conceded to be, and the law as we understand it, the defendant below, Frank Sprekelsen, was rightfully and legally convicted, and no error being made to appear by the record, the judgment of the district court is affirmed. Affirmed.
Scott, J., concurs. Potter, C. J., dissents.