State Ex Rel. Schneider v. Kennedy

Holmes, J.,

dissenting. I cannot concur in the decision of the majority and therefore must respectfully register my dissent. I have no quarrel with the scholarly presentation of the history of liquor regulation in Kansas or the principles of statutory construction under our constitutional form of government as set forth in the majority opinion. It is the application of these principles to the issues in this case where we disagree. I would also agree that our prior cases of State v. Larkin, 173 Kan. 112, 244 P.2d 686 (1952) and Tri-State Hotel Co. v. Londerholm, 195 Kan. 748, 408 P.2d 877 (1965), which are cited and relied upon by various counsel, while informative, are not determinative of this case. As stated by the majority, the issue in this case is whether the 1978 legislative amendments to K.S.A. 41-2601 et seq., and K.S.A. *3041-803, authorize the maintenance of an “open saloon” in violation of article 15, section 10 of the Kansas constitution. A determination of this issue requires this court to define the term “open saloon” at least to the extent of whether the so-called new type of “restaurant-club” contemplated by the legislative amendments is an open saloon banned by the constitution.

The majority equates the term “open saloon” as used in the constitution with the “sale of liquor by the drink.” On the other hand, I equate the “open saloon” provision with the type of establishment or premises that attempts to provide liquor to the public. The sale of liquor by the drink is not the determining or controlling factor in the definition of the term “open saloon.”

Without unduly repeating the background material so adequately set forth in the majority opinion, there are a few additional factors which appear relevant to a determination of the issues. In 1948, after sixty-eight years of bone-dry provisions in our constitution, article 15, section 10 was changed by a vote of the people to provide:

“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 first two sentences of the amendment do nothing more than state what would be the power of the legislature absent any liquor provision at all. “It is well settled that the state, through its legislature, may exercise any governmental powers not granted to federal government and not prohibited by our constitution.” State, ex rel., v. State Commission of Revenue and Taxation, 163 Kan. 240, 247, 181 P.2d 532 (1947). It is therefore only the final sentence which is operative and provides any limitation on the power of the legislature. While the permissive portions of section 10 do no more than repeat certain powers which would otherwise be held by the legislature, it is interesting to note that the language does specifically include the power to “. . . regulate, license and tax the . . . sale of intoxicating liquors.” Nowhere does the constitution attempt to prevent the sale of liquor by the drink. The only prohibition is against the “open saloon” which the constitution does not attempt to define and not having done so, it must be presumed that the term was considered one of common knowledge at the time.

*31In 1947, the legislature determined to submit to the people an amendment to the constitution which would do away with the bone-dry law. Several proposed amendments were considered by both houses of the legislature before the language that ultimately became section 10 of article 15 was adopted. As a part of the attempt to draft a proposed amendment the research department of the legislative council submitted to the legislature a report summarizing constitutional and statutory regulations of the manufacture and sale of alcoholic liquor in each state. (State Regulation of Alcoholic Beverages, Kansas Legislative Research Department [1947].) Included on page 1 of the report was a list of five (5) states in which the open saloon was prohibited in one form or another. This report also contained an explanation of the various options available to the legislature. The options ranged from a South Carolina provision prohibiting the sale of alcoholic beverages “. . . to be drunk on the premises . . .” (art. 8, § 11, South Carolina constitution), to the Texas approach directing the legislature to define the term “open saloon” (art. 16, § 20, Texas constitution). The Kansas Legislature chose a middle road much the same as Colorado had done when it provided “. . . no such laws shall ever authorize the establishment or maintenance of any saloon” (art. XXII, § 1, Colorado constitution).

On January 22, 1947, prior to the amendment adopted by the 1947 Legislature, Senate Concurrent Resolution 3 was introduced and provided:

“The legislature may regulate, license and tax the manufacture and sale of intoxicating liquors but the sale of intoxicating liquors other than in unopened containers containing one-half pint, or more, shall be forever prohibited in this state.”

This proposed amendment was tantamount to a specific prohibition of the sale of liquor by the drink and was not acceptable to the legislature. Thus it is clear that the 1947 Legislature, after considering the banning of liquor by the drink, chose to ban the much less restrictive “open saloon” instead. The legislature recognized the two terms did not have the same meaning or it would undoubtedly have selected the more definite and concise language. The logical conclusion from this selection of language is that the legislature, speaking on behalf of the people, did not choose to ban all sales of liquor by the drink.

*32The legislative history of a constitutional enactment may be considered by the court in ascertaining the proper construction of a phrase of doubtful meaning. 16 Am.Jur.2d, Constitutional Law §§ 64,88; State, ex rel., v. Anderson, 180 Kan. 120, 299 P.2d 1078 (1956). The intent of the framers is to be considered as well as that of the people. Hunt v. Eddy, 150 Kan. 1, 90 P.2d 747 (1939).

The majority quotes extensively from several dictionaries and opinions of other states defining the term saloon, open saloon or public saloon and then chooses to ignore these authorities with the bald statement:

“As our history indicates, Kansas was primarily a ‘dry’ state and any argument the open saloon was intended merely to prohibit the sale of liquor in a particular environment ignores the constitution.”

While it is undoubtedly true that this court has the final duty and obligation to define constitutional provisions not defined in the constitution itself, the legislature has the power and the duty to adopt legislation to carry out the provisions of the constitution to the extent such legislation does not conflict therewith. State, ex rel., v. Board of Education, 212 Kan. 482, 511 P.2d 705 (1973).

“This court is by the Constitution not made the critic of the legislature, but rather, the guardian of the Constitution; and every legislative act comes before this court surrounded with the presumption of constitutionality. That presumption continues until the Act under review clearly appears to contravene some provision of the Constitution. All doubts of invalidity must be resolved in favor of the law. It is not in our province to weigh the desirability of social or economic policy underlying the statute or to question its wisdom; those are purely legislative matters.” Tri-State Hotel Co. v. Londerholm, 195 Kan. at 760.

Can it be said the legislature in 1947 and the electorate in 1948 clearly intended the term “sale of liquor by the drink” to be synonymous with the term “open saloon” as used in the constitution? I think not. While we may like to think so, the people of Kansas in 1948, as at any other time, were not much different from people in Colorado, Texas, California, New York or any other state. The majority’s decision that the “sale” of liquor by the drink is determinative of what is an “open saloon” appears to be based upon the statutory definitions adopted by the legislature for the purpose of the liquor control and private club acts although it is conceded those definitions and the cases resulting therefrom are not controlling in a determination of the meaning of the provision in the constitution. It is more realistic to assume that *33the term “open saloon” referred to the type of premises and business establishment wherein liquor is sold to the public. The legislature having specifically selected the term “open saloon” rather than sale by the drink, impels us to turn to other authority in determining the general understanding of the term.

45 Am.Jur.2d, Intoxicating Liquors § 20, p. 498, defines saloon in the following terms:

“The words ‘bar,’ ‘barroom,’ and ‘saloon,’ as used in liquor laws, mean rooms or places where intoxicating liquors are sold and drunk, commonly without meals.”

The California constitution, in effect in 1947, provided in part:

“Intoxicating liquors, other than beers, shall not be consumed, bought, sold, or otherwise disposed of for consumption on the premises, in any public saloon, public bar or public barroom within the State; provided, however, that subject to the aforesaid restriction, all intoxicating liquors may be kept and may be bought, sold, served, consumed, and otherwise disposed of in any bona fide hotel, restaurant, cafe, cafeteria, railroad dining or club car, passenger ship, or other public eating place, or in any bona fide club after such club has been lawfully operated for not less than one year.” Art. 20, § 22. (Emphasis added.)

The majority would distinguish the California constitution as specifically providing for sales in bona fide restaurants, but while the proviso in the California constitution does allow sales in hotels, restaurants, etc., they are always subject to the restriction that there shall be no such sales in any public saloon. Covert v. State Board of Equalization, 29 Cal. 2d 125, 135, 173 P.2d 545 (1946). Therefore, the definition placed upon the term “public saloon” by the California courts is relevant in our attempt to define the term. In Hammond v. McDonald, 49 Cal. App. 2d 671, 122 P.2d 332 (1942), the court states:

“No definitions of the terms used appear in the Constitution. In absence of such definitions, the words, having no technical meaning, will be taken in the ordinary and generally accepted sense. [Citations omitted.] The words ‘saloon’ and ‘barroom,’ as used in connection with the sale of intoxicating liquor, import a place where such liquors are sold for consumption on the premises [citations omitted]; to which Webster’s New International Dictionary, 2d ed., first published in 1934, adds, in case of a saloon, that such sales are ‘commonly without meáis.’ . . . It is a matter of common knowledge of which we may take judicial notice, that the saloons and barrooms existing before the enactment of prohibition, which undoubtedly it was the intent of this constitutional amendment to prohibit, were not devoted to the furnishing of meals. They did, in some cases, furnish ‘free lunches,’ usually of rather minor character; but the business for which they were established was the selling of intoxicating liquor for consumption on the premises, and any furnishing of food or meals was purely incidental to that business. Persons whose main object was the obtaining of meals, *34even if they desired drinks of intoxicants with them, went to restaurants and cafés, whose principal business was the serving of meals, not of intoxicants.” pp. 684-85. See also Covert v. State Board of Equalization, 29 Cal. 2d 125, 173 P.2d 545 (1946).

Colorado’s constitutional provision is strikingly similar to ours.

“On the thirtieth day of June, 1933, all statutory laws of the state of Colorado heretofore enacted concerning or relating to intoxicating liquors shall become void and of no effect; and from and after July 1st, 1933, the manufacture, sale and distribution of all intoxicating liquors, wholly within the State of Colorado, shall, subject to the Constitution and laws of the United States, be performed exclusively by or through such agencies and under such regulations as may hereafter be provided by statutory laws of the State of Colorado; but no such laws shall ever authorize the establishment or maintenance of any saloon. ” Colorado constitution, art. XXII, § 1. (Emphasis added).

In the case of Denver v. Gushurst, 120 Colo. 465, 210 P.2d 616 (1949), the court stated:

“We are persuaded . . . that the aim, intent, and primary purpose of the people in the adoption of article XXII of the Constitution, and of the general assembly in the passage of the liquor code . . . was to completely outlaw and eradicate the old-time public saloon or barroom with its well-known obnoxious characteristics, vices and effects, and at the same time to authorize, under proper regulations and safeguards, the sale and consumption of intoxicating liquors in bona fide restaurants and hotels.” p. 469-470.

The majority would dispose of the Colorado approach to the problem with a one-line statement declaring Kansas history differs from Colorado history.

In National Railroad Passenger Corporation v. Harris, 354 F. Supp. 887 (1972), (judgment vacated on other grounds, 490 F.2d 572 [10th Cir. 1974]), Judge Chandler comments on a place that may be reasonably considered an open saloon under the Oklahoma constitution:

“Although Webster’s Seventh New Collegiate Dictionary defines ‘saloon as ‘a room or establishment in which alcoholic beverages are sold and consumed’ (Barroom - Taproom), this definition is not the meaning of ‘open saloon’ as commonly used and understood.
“The 1930 edition of Webster’s New International Unabridged Dictionary of the English Language defines ‘saloon’ as
‘A place where intoxicating liquors are sold and drunk; a grogshop; - used commonly of a place where there are no lodgings or regular service of meals as in a hotel.’
“Webster’s New International Unabridged Dictionary, Second Edition 1944 defines ‘saloon’ as
'5.a U.S. A shop where intoxicating liquors are sold and drunk, commonly without meals.’
*35“The Court is of an age that he can and does take judicial notice that prior to the adoption of the Eighteenth Amendment there were many respectable places where liquor was sold by the drink - hotel bars, cocktail lounges, private clubs, restaurants, etc., which were not in any sense considered ‘open saloons’ although all except the private clubs were open to the public. They were considered respectable ‘places’ while the ‘open saloon’ as commonly understood was considered quite the opposite. ‘Open saloon’ had a much narrower, very graphic meaning: it connoted a sordid, evil place. To quote Milton: ‘Through the gate wide open and unguarded, Satan passed.’ And there is reason to suspect the Oklahoma voters had such a ‘place’ in mind when they adopted Article 27, § 4 of the Oklahoma Constitution and that they were misled and deceived.” pp. 893-94.

Thus it is that in those states which have had an opportunity to define the term “saloon” for constitutional purposes, the determination has been based upon the type of premises involved and the business carried on therein, not upon whether a “sale” of liquor by the drink takes place. Since it is clear that the Kansas legislature did not accept the “sale” concept in its drafting of the constitutional amendment, subsequently approved by the electorate, the cases from other states defining the term on a physical premises basis combined with reasonable safeguards and regulation seem persuasive and logical. With the restrictions incorporated in the legislative amendments adopted in 1978, restaurants authorized to sell liquor by the drink to the public are, in no sense of the word, “saloons.”

In Higgins v. Cardinal Manufacturing Co., 188 Kan. 11, 360 P.2d 456 (1961), this court stated:

“A constitution must be interpreted liberally to carry into effect the principles of government it embodies. It deals broadly with general subjects, and its language should not be interpreted in any narrow, refined or subtle sense, but should be held to mean what the words imply to the common understanding of men. (State v. Sessions, 84 Kan. 856, 115 Pac. 641.) The constitution is not to be construed in a technical manner, but in ascertaining its meaning the courts consider the circumstances attending its adoption and what appears to have been the understanding of the people when they adopted it.” p. 18-19.

The limitations in the 1978 amendments placed upon the sale of liquor in restaurants which derive not less than 50% of their gross receipts from the sale of food for consumption on the premises and in which liquor is only sold and served in the same room where food is sold and served certainly results in establishments which are a far cry from the open saloon. While it is obvious from the majority opinion, the discussion of the proposed legislative amendments in both houses of the legislature, *36editorial comments, legal articles and numerous other sources, that the decision before the court has been considered a close constitutional question with appealing arguments and authorities on both sides, I cannot agree with the reasoning and results of the majority opinion. In applying the time-honored principles of statutory construction as set forth in the majority opinion, including the strong presumptions of validity, I can reach no other conclusion than that the action of the 1978 legislature did not result in the authorization of open saloons in Kansas and does not violate article 15, section 10 of the Kansas constitution.

Justice McFarland, in her concurring opinion, would have us believe that the good people of Kansas in 1948 did not know, apart from television, movies and history books, what encompassed an open saloon.

Anyone who thinks that because Kansas had experienced constitutional prohibition since 1880, the legislators of 1947 and voters of 1948 did not know the difference between the sale of liquor by the drink and an open saloon, has his or her head in the sand. In the late 1930’s and through the 1940’s, any high school senior in Sedgwick County could lead one to any number of establishments resembling the popular version of the open saloon. Although usually called clubs, some had fully equipped and staffed casinos in the style of Las Vegas, most had their row of one-armed bandits standing inside the main door (which quite often was in the back), many had dancing girls, card tables, a friendly bootlegger standing by, and all the other “finer things of life” associated with the historic version of an open saloon. True, these establishments also had liquor by the drink, but they were not the places one took his family to enjoy a good meal with a cocktail before dinner and wine with the food. And Sedgwick County was no different than many other counties and areas in Kansas. The people of Kansas in 1948 did not have to resort to the history books to know that the open saloon encompassed far more than the ability to purchase a drink of liquor in an establishment devoted primarily to the sale of food, and under rigid license, inspection and control by the State.

My learned colleague cites numerous dictionary definitions and one-sentence excerpts from numerous cases purporting to describe a “saloon.” The gist of all these authorities is that a saloon is a place which sells liquor presumably for consumption *37on the premises. I agree wholeheartedly. Certainly no one can argue with the statement that a saloon is a place that sells liquor. However, to say, as the majority does, that because a saloon sells liquor, all places that sell liquor are saloons, is tantamount to saying that because chickens have feathers, all birds with feathers are chickens. It just is not so.

To summarize, I am of the opinion the prohibition of the “open saloon” in our constitution does not prohibit the doing of an act, that is, the sale of liquor by the drink, but does prohibit a certain type of premises or business operation, that is, a public bar whose principal business is the sale of liquor for consumption on the premises. The legislature has the power to adopt reasonable classifications in the performance of its obligations under article 15, section 10 and the designation of restaurants, whose principal function is the sale of food, to sell liquor by the drink under the restrictions set forth in the 1978 amendments to the statutes is reasonable and therefore constitutional.

For the reasons indicated, I would hold that the 1978 amendments to K.S.A. 41-2601 et seq., and K.S.A. 41-803, are constitutional and the petitioner’s request for a writ of quo warranto should be denied.

PRAGERand Miller, JJ., join in the foregoing dissent.