concurring: Think of the word “saloon” and the image that comes to mind is of swinging doors, swaggering gunfighters, and painted women with hearts of gold. This is the picture that Hollywood has painted for us of the Old West. A modern restaurant serving drinks to its customers just does not fit our mental picture of a saloon.
If this case involved what a saloon was in 1865 or 1870, perhaps the Hollywood image could be considered on the basis of whether it was historically accurate. But that question is not before us. What this Court has to decide is what “open saloon” meant in 1948 when article 15, section 10 of the Kansas constitution was amended. The provision, prior to amendment, stated:
“The manufacture and sale of intoxicating liquors shall be forever prohibited in this state, except for medical, scientific and mechanical purposes.”
The amendment of 1948 stated:
“The legislature may provide for the prohibition of intoxicating liquors in certain areas. Subject to the foregoing, the legislature may regulate, license and tax the manufacture and sale of intoxicating liquors, and may regulate the possession and transportation of intoxicating liquors. The open saloon shall be and is hereby forever prohibited.”
The question then is precisely what did the people of Kansas intend to forever prohibit when they voted that “the open saloon shall be and is hereby forever prohibited”?
Strangely enough the word “saloon” had not, prior to 1948, been defined by either the legislature or the courts of Kansas. The best evidence of what the term “open saloon” was intended to encompass is found in the definition enacted by the 1949 Kansas Legislature as found in K.S.A. 41-803 as follows:
“It shall be unlawful for any person to own, maintain, operate or conduct either directly or indirectly, an open saloon. For the purposes of this section, the words ‘open saloon’ mean any place, public or private, where alcoholic liquor is sold or offered for sale or kept for sale by the drink or in any quantity of less than one-half pint, or sold, offered for sale, or kept for sale for consumption on the premises where sold. Any person violating the provisions of this section shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not more than five hundred dollars ($500) and by imprisonment for not more than ninety (90) days.”
Just four months after “open saloon” was amended into our constitution, we see that the term was defined as any place where *28liquor by the drink is sold. This definition is clearly contrary to the present amended definition in question, which was enacted almost 30 years after the constitutional prohibition. Was the 1949 definition unreasonable and not in accord with other legal definitions of saloon? Let us look at how some other jurisdictions have defined the term:
Alabama — The “saloon,” in common parlance, is a place where intoxicating liquors are sold. Fourment v. State, 155 Ala. 109, 113, 46 So. 266 (1908).
Minnesota — A “saloon” is a place where liquors are kept for sale to the retail trade. Kelly v. Theo. Hamm Brewing Co., 140 Minn. 371, 374, 168 N.W. 131 (1918).
Nebraska — The word “saloon,” which originally meant a large public room or parlor, has now acquired a more restricted meaning, and is usually applied to a place where intoxicating liquors are sold. McDougall v. Giacomini, 13 Neb. 431, 434, 14 N.W. 150 (1882).
New Jersey — A “saloon” is a place where intoxicating liquors are sold or consumed. Proprietors’ Realty Co. v. Wohltmann, 95 N.J.L. 303, 112 A. 410 (1921).
Texas — A “saloon” is a place of refreshment. In common parlance, the word “saloon” is used to designate a place where intoxicating liquors are sold. Hinton v. State, 137 Tex. Crim. 352 356, 129 S.W.2d 670 (1939).
United States case law on the subject is summarized in the legal encyclopedia, Corpus Juris Secundum, in volume 48 at pages 149-150, wherein it is stated:
“As a word of modern origin, the term ‘saloon’ has a very definite general meaning, which is well-known, and generally understood as a place where intoxicating liquors are sold at retail, and consumed or drunk; a building or place where liquors are kept for sale at retail . . . .”
Some dictionary definitions of “saloon” are as follows:
Random House Dictionary of the English Language (unabridged ed. 1970): “1. U.S. a place for the sale and consumption of alcoholic drinks.”
Webster’s New Collegiate Dictionary (1977): “3c. a room or establishment in which alcoholic beverages are sold and consumed.”
Webster’s Third New International Dictionary (1961): “d: a room or public establishment in which alcoholic beverages are sold and consumed: barroom, taproom.”
Black’s Law Dictionary (4th ed. rev. 1968): “A place of refreshment. An apartment for a specified public use. In common parlance, a place where intoxicating liquors are sold and consumed.” (Citations omitted.)
The common thread that runs throughout these various definitions including the 1949 Kansas definition is the selling of liquor by the drink — the sale of liquor for consumption on the premises.
*29The consumption of alcoholic beverages in private clubs is easily distinguished as the clubs are not “open” to the public and are not “saloons” because they do not sell liquor.
We have a constitutional form of government. The constitution provides the basic framework for government. It is difficult to change a constitutional provision, and rightly so. Members of legislatures come and go. The basic framework on which our government rests should not be subject to change by caprice, whim, or shrewd political maneuvering. The constitution cannot be changed in a “smoke-filled room” by a handful of politicians in the middle of the night. Change comes in the light of day with the vote of the people after ample opportunity for all sides to be heard. If the open saloon prohibition is to be changed, it must be done in the same manner that it was put into the constitution. That is, by the majority of all the voters of Kansas.
If the term “open saloon” can be defined and redefined by legislative act, thereby changing the Kansas constitution without amendment, then why not yet another redefinition in a year or two limiting an open saloon to a drinking establishment with swinging doors and a portrait of a reclining plump female nude behind the bar?
I must therefore concur that “open saloon” encompasses any place open to the public where liquor by the drink is sold and join in the majority opinion.
Owsley, J., joins in the foregoing concurring opinion.