(dissenting).
Instead of proceeding as in ordinary cases and charging a violation of the criminal law, the parties stipulated the facts, as authorized in civil cases by section 4286, R. L. 1905. The proceeding, then, can be sustained only on the theory that the club is charged with maintaining an unlicensed drinking place, which may be abated as a nuisance by injunction or other legal proceedings. It follows that the judgment about to be entered determines that the Minnesota Club is conducting an unlicensed drinking place which is a public nuisance. The statute *527provides that every person who directly or indirectly, by himself or by combining with others, shall keep an unlicensed drinking place, is guilty of a misdemeanor, and shall be punished by a fine of no# less than $50, or imprisonment in the county jail for not less than thirty days. The Minnesota Club was authorized under the authority of the state for the purpose stated in its charter, and for twenty four years it, like other social clubs of the same character, has existed without any one discovering that it was a public nuisance and all its members criminals. I feel very certain that the liquor license laws were never intended to apply to such a club. If the practical construction, which for more than a generation has been placed on the statute, is wrong, it is a very easy matter for the legislature so to declare.
The opinion of the court rests on a very narrow and literal construction of the language of a single section of a statute, which itself constitutes but a part of a body of legislation designed to regulate the retail liquor business. The United States government, for the purpose of raising revenue, levies a tax on all sales, and leaves the matter of the regulation thereof to the state. Minnesota has not made the drinking of liquor a crime. It does not even require a license from those who desire to sell intoxicating liquor at wholesale. Now, the sale of a pint of whiskey can be no more inherently contrary to public policy than is the sale of five gallons of the same article. The reasons which justify freedom in one case and stringent regulation in the other are found in the different conditions under which the sales are made. Experience has shown that the unregulated sale of liquor at retail leads to the development of undesirable places, which become the resorts of evil-doers and centers of disorder. The state may, by virtue of its general police power, prohibit the traffic entirely, or attempt to control the evil by merely restricting and regulating it. In view of the divided sentiment of the community as to the extent of the evils which result from the traffic, it has been the policy of this state to allow the business to be carried on under carefully defined restrictions as to persons, places, times, and facilities for inspection and control.
Without proper police supervision, the retail liquor traffic would be intolerable. To be endurable, it must be conducted under the eyes of the authorities, and such supervision necessitates extra expense and *528trouble, the burden of which should be borne by the traffic instead of the general public. In order to cover this expense, those who engage in the business are required to secure a license and pay for the privilege an amount which will fairly reimburse the public for the extra expense and trouble incident to the regulation. From the concessions made in the record presented in this case it is apparent that- what the state is here seeking is revenue, and not regulation. But the Minnesota statute requiring a license for certain kinds of sales is a police and not a tax measure. Its purpose is regulation, not revenue. Claussen v. City of Luverne, 103 Minn. 491, 115 N. W. 643, 15 L. R. A. (N. S.) 698; Leavitt v. City of Morris, 105 Minn. 170, 117 N. W. 393; City of Rochester v. Upman, 19 Minn. 78 (108); State v. Cassidy, 22 Minn. 312, 21 Am. 765; State v. Deusting, 33 Minn. 102, 22 N. W. 442, 53 Am. 12; State v. Funk, 27 Minn. 318, 7 N. W. 359; State v. Robinson, 101 Minn. 277, 112 N. W. 269. The license fee is imposed, not as a tax, but as an incident of the police power. City of Rochester v. Upman, supra. The justification of the exercise of the police power is found in the necessity for the regulation of the retail liquor business —not in the mere fact that A. sells to B. a gill, instead of five gallons, of whiskey.
A study of the Minnesota legislation upon this matter makes it perfectly clear that the purpose was to frame a body of laws which should control and regulate the retail liquor traffic when conducted with a view to.profit. That idea has always been in the mind of the court. As said in State v. Orth, 38 Minn. 150, 36 N. W. 103: “All the provisions of the laws in regard to procuring the license, the contents of the license, and the regulating of the business, point unequivocally to the retail trade, * * * and, taking the laws as a whole, we conclude the legislature did not intend to depart from the former policy of the state, and require licenses from any but the retail trade.” Similar language was used in State v. Jones, 88 Minn. 27, 92 N. W. 468, and State v. Bates, 96 Minn. 110, 104 N. W. 709, 113 Am. St. 612. Chapter 16, R. R. 1905, when read as a whole, cannot be con'sidered in any other light. It contemplates that there are certain persons who desire to engage in the business of selling intoxicating liquors at retail. It opens with the general statement that “any person who shall sell any intoxicating liquor in quantities less than five gallons, or *529in any quantity to be drunk on the premises, except as hereinafter provided, is guilty of a misdemeanor.” The words “sell” and “sale” are declared to include all barters, gifts, and- all means of furnishing liquor in violation or evasion of the law. The general prohibition must be read in the light of what follows in the same statute. A pharmacist may sell intoxicants on the prescription of a physician, and any other person who is duly licensed may sell at certain times and places to certain persons only. Certain persons only may be licensed. The conditions show that the legislature had in mind the selling of liquor at retail. Otherwise, why so carefully provide for an investigation into ■the character of the licensee? Why limit the right of the licensee to sell at any place other than that referred to in the license?
The applicant must file with the proper officer a written application, stating the place for which a license is desired and the date from which it is to run. The officer must then give two weeks’ published notice of the application, specifying the applicant, a description of the room for which the license is desired, and a time for a hearing on the question whether the application shall be granted. Application for what? For the privilege of selling a pint of liquor? Certainly not. The applicant must file a bond in the sum of $2,000, conditioned that he will not do certain specified things and generally observe the law. This contemplates that the applicant is going into the retail liquor business, and that the public is interested in the character of the applicant, as well as the place where the business is to be carried on. The character of the applicant is supposed to be of vital importance, and this can be so only on the theory that he is to be licensed to carry on a business. Hence it is provided that “* * * no license shall be’ granted to any person of known bad character, to the keeper of any house of prostitution, or place frequented by prostitutes or other dis-^ orderly persons, to the keeper of any gambling house or place where/’ etc. The places where sales may not be made are carefully defined, and the times when sales may be made are carefully limited. Sales may not be made on Sunday, or on special or general election days, or on any day between eleven o’clock p. m. and five o’clock a. m. The persons to whom sales are not to be made are also enumerated: “Any person duly licensed by the county board, or by the proper authorities of the municipality for which such license is issued, may. sell such l'iq*530uors in the room named in the license * * * in the manner and to the persons allowed by law, but not otherwise.” The form of the license is prescribed, in order that the holder may be able to claim no rights free from the restrictions imposed by the statute. Every such, ¡license shall be for one year from its date, unless sooner annulled, shall -•specify the room in which sales are allowed, and shall state that the person named is authorized to sell such liquor only in such place and :at the time, in the manner, and to the persons allowed by law. That 'the legislature was thinking of saloons and the retail liquor business appears from the provision that in cities of the first class “not more than five such licenses for places on one side of any block within the patrol limits of such city and fronting on such limits shall be granted.”
The Minnesota Club is a corporation, and cannot secure a license in its corporate name. A corporation cannot legally take a license in the name of an agent or employee. It follows that the club cannot legally secure a license, and must cease to supply liquor to its members. I can find no authority in the statute for granting a license to sell intoxicating liquors in private.* The statute contemplated public sales at a designated place, which must at all times be open to police visitation. There can be no privacy in a saloon. The ordinance of the municipality with reference to hours of closing, arrangement of rooms, .■screens, etc., applies to all public drinking places. The very purpose ■of such legislation is to prohibit privacy and retirement. If social ■clubs are obliged to secure liquor licenses, they must comply with the statutes and ordinances enacted for the government and regulation ■of the holders of such licenses. They become public drinking places, .and subject to the laws regulating the same. All this, it is true, is of no consequence, if the legislature intended that such clubs should not ■serve liquor to members or their guests; but when seeking the legislative intention, it is proper to consider the consequences of any particular construction. The same legislature which enacted the license laws also authorized the incorporation of such clubs, and if the construction contended for by the state would produce results which are •destructive of the clubs, it is fair to conclude that such a construction ■was'not contemplated by the'legislature.
■The great weight of authority is contrary to the opinion expressed in the majority opinion. It is the established law in England that th'e *531distribution of liquors to club members does not constitute a sale within the meaning of the license laws. It is useless to try to explain the cases away by fine distinctions between the statutes. In Graff v. Evans, 8 L. R. (1882), Q. B. Div. 373, Graff, the steward of the Grosvenor Club, was indicted for selling liquor to a member of the club under a statute (Rícense Act 1872 [St. 35 & 36 Viet. c. 94] § 3) which provided that “no person shall sell or expose for sale by retail any intoxicating liquor without being duly licensed to sell the same.” In holding that the transaction was not within the statute, Mr. Justice Field says: “The section must be construed by looking at the language used, and taking á large view of the object of the legislation. The legislature has come to the conclusion that it is inadvisable that intoxicating liquor’s- should be sold anywhere without a license. The ■enactment is limited to ‘sales’ of intoxicating liquors, and only seems .aimed at sales by retail traders, because the wholesale trader is not touched.” In Newell v. Hemingway, 58 L. J. (1889) Magistrates Cases, 46, the manager of a limited company, the shareholders of which constituted the membership of the club, 'was held not liable ■criminally under the same statute for selling liquor to the members. In Davies v. Burnett, 1 K. B. 666 (1902) it was held that “where intoxicating liquor is sold by [the steward] of a bona fide workingman’s club, not licensed for the sale of intoxicating liquors, to the duly authorized agent of a member for consumption by the member off the club premises, no offense is committed against section 3 of the licensing act, 1872, and the seller cannot be convicted for selling intoxicating liquors * * * without a license.”
The same conclusion was reached by the supreme judicial court of Massachusetts. The statute (Pub. St. Mass. 1882, c. 100) contained the usual provision that “no person shall sell, or expose or keep for sale spirituous or intoxicating liquors, except as authorized by this statute.” In Com. v. Pomphret, 137 Mass. 564, 50 Am. 340, it was held that the steward of a bona fide social club could not be convicted for selling liquors without a license. Mr. Justice Field said:' “It is well known that clubs exist which limit the number of the members and select them with great care, which own considerable property in common, and in which the furnishing of food and drink to the members for money is but one of the many conveniences which the mem*532bers enjoy. * * * One inquiry always is whether the organization is bona fide a club with limited membership, into which admission cannot be obtained by any person at his pleasure, and in which the property is actually owned in common, with the mutual rights and obligations which belong to such common ownership, under the constitution and' rules of the club, or whether, either the form of the club has.been adopted for other purpose, with the intention and understanding that the mutual rights and obligations of the members shall not be such as the organization purports to create, or a mere name has been assumed without any real organization behind it.” Com. v. Ewig, 145 Mass. 119, 13 N. E. 365, was determined upon the question whether the club was a bona fide club, and not a mere devise to cheat the government of a license fee.
In People v. Adelphi Club, 149 N. Y. 5, 43 N. E. 410, 31 L. R. A. 510, 52 Am. St. 700, it was held that the furnishing of liquor to its members upon their written orders, at a price designed to cover the purchase price and disbursements of service, by a bona fide social club regularly organized under the statute for a legitimate purpose to which the furnishing of liquor to its members is merely incidental, and having a limited and selected membership, does not constitute a sale within the meaning of the liquor license law. So in Klein v. Livingston Club, 177 Pa. St. 224, 35 Atl. 606, 34 L. R. A. 94, 55 Am. St. 717, it was held that an incorporated club, organized and conducted in good faith with a limited and selected membership, owning its property in common, formed for social purposes, to which the furnishing of liquor is merely incidental, may furnish liquor to its members without first procuring a license. The court quotes with approval the following statement from Black, Intox. Liq., § 142: “Upon the whole, therefore, notwithstanding some conflicting rulings, the rational conclusion is that the intent must govern. On the one hand, if the object of the organization is merely to provide members with a convenient method of obtaining a drink whenever they desire it, or if the form of membership is no more than a pretense, so that any person, without discrimination, can procure liquor by signing his name in a book,or buying a ticket or chip, thus enabling the buyer to conduct an illicit traffic, then it falls within the terms of the law. But on the other hand, if the club is organized and conducted in good faith, with *533.a limited and selected membership, really owning its property in common, and formed for social, literary, or other purposes, to which the furnishing of liquor to its members would be merely incidental, in the same way and to the same extent that the supplying of dinners or daily papers might be, then it cannot be considered as within either the purpose or letter of the law.”
The cases are reviewed in State v. St. Louis Club, 125 Mo. 308, 28 S. W. 604, 26 L. R. A. 573, where it was held that a corporate club is not a “person,” within the meaning of the statute regulating the sale of intoxicating liquors, and that the sale of liquor by a bona fide social club not incorporated for profit is not a sale within the meaning of the law. “It seems to us,” said Gantt, P. J., “that inasmuch as this club has been organized since 1878, it is not created for profit, and that the legislature must have been cognizant that many similar organizations had been created under the same statute, and if it had been the intention to require them to take out a liquor license it would have made some provision for it, or provided a license tax suitable to the case, as they cannot, under the dramshop act, exercise their other corporate rights. The club has pursued this method of providing refreshments for some fifteen years. Its right seems never to have been challenged before, although the dramshop act has remained substantially the same all these years.”
Further discussion of the authorities is not possible with reasonable limitations of time and space. The views expressed in the cases cited from courts of the very highest standing are sustained in the following cases: Piedmont Club v. Com., 87 Va. 541, 12 S. E. 963; Seim v. State, 55 Md. 566, 39 Am. 419; State v. McMaster, 35 S. C. 1, 14 S. E. 290, 28 Am. St. 826; Barden v. Montana Club, 10 Mont. 330, 25 Pac. 1042, 11 L. R. A. 593, 24 Am. St. 27; Koenig v. State, 33 Tex. Crim. 367, 26 S. W. 835, 47 Am. St. 35; State v. Austin, 89 Tex. 20, 33 S. W. 113, 30 L. R. A. 500; and, in effect, State v. Boston Club, 45 La. An. 585, 12 South. 895, 20 L. R. A. 185. The courts of Illinois, Michigan, New Jersey, and North Carolina have reached a contrary conclusion. The law as declared in England, Massachusetts, New York, Pennsylvania, and other states has prevailed in Minnesota since social clubs were known. The statutes have always, so far as my knowledge extends, been held not to apply to such 'organiza*534tions. This certainly has been the construction placed on them by the executive department. It is true that the exact question has not before been presented to this court; but the trial courts have generally, if not universally, held that the question is always as to the good faith of the club. I am not aware that it has been found particularly difficult to apply the law upon this theory. Judge Kelly’s decision leaves the law as it has always been in this state. It seems to me that the change, if desirable, should be made by the legislature, and not by the court.
I therefore respectfully dissent.
JAGGARD, J. (dissenting).I concur with the reasoning and result of the dissenting opinion.