State ex rel. Schneider v. Kennedy
| Decision Date | 05 December 1978 |
| Docket Number | No. 50263,50263 |
| Citation | 587 P.2d 844,225 Kan. 13 |
| Parties | STATE of Kansas ex rel. Curt T. SCHNEIDER, Attorney General, Petitioner, v. Thomas J. KENNEDY, Director, Alcoholic Beverage Control, Respondent, The Kansas Hotel and Motel Ass'n, Inc., Intervenor. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The 1978 Kansas legislature amended the Private Club Act, K.S.A. 41-2601 Et seq., to authorize the issuance of liquor licenses for class B clubs which are licensed food service establishments as defined in K.S.A. 1977 Supp. 36-501, and permitted the sale of alcoholic liquor by the drink for consumption on the licensed premises, but only in the same room where food is sold and served with the sale and consumption of such alcoholic liquor, provided that not less than fifty per cent (50%) of the gross receipts in each calendar year are from the sale of food for consumption on the premises. Upon constitutional attack it is held the legislature has attempted to authorize the establishment of an "open saloon" in violation of article 15, section 10 of the Kansas constitution.
2. Article 15, section 10 of the Kansas constitution provides: Article 15, section 10 of the Kansas constitution does not authorize the legislature to define the term "open saloon."
3. It is entirely within the power of the people who establish and adopt the constitution to make any of its provisions self-executing. Prohibitory provisions in a constitution are self-executing to the extent that anything done in violation of them is void.
4. Absent specific authorization in the constitution giving the legislature authority to define constitutional provisions, it is the function and duty of the Supreme Court to define constitutional provisions.
5. It is the nature of the judicial process that the construction of a constitutional provision by the Supreme Court becomes equally as controlling upon the legislature of the state as the provisions of the constitution itself.
6. Rules applied by the Supreme Court in determining the constitutionality of a statute are stated in the opinion.
7. The term "open saloon" as used in article 15, section 10 of the Kansas constitution is construed to be any establishment open to the public, without discrimination, where alcoholic beverages are dispensed or sold and served for consumption on the premises.
8. A food service establishment which is open to the public and dispensing or selling alcoholic beverages for consumption on the premises is an open saloon, and the comparative revenue derived from food or alcoholic liquor is immaterial.
9. In an original action in quo warranto brought by the attorney general challenging the constitutional validity of 1978 legislative amendments to K.S.A. 41-2601 Et seq., and K.S.A. 41-803, as authorizing the maintenance of an "open saloon" in violation of Article 15, Section 10 of the Kansas constitution, it is Held : The petitioner's writ of quo warranto shall be granted and the respondent is prohibited from the issuance of any class B club licenses as designated in subsection (B )(3)(B) of L.1978, ch. 186, § 3.
John R. Martin, First Deputy Atty. Gen., argued the cause and Curt T. Schneider, Atty. Gen., Topeka, was with him on the brief for petitioner.
Benjamin J. Neill, of Dept. of Revenue, Topeka, argued the cause, and Thomas J. Kennedy, director of alcoholic beverage control, and Alan F. Alderson, of Dept. of Revenue, Topeka, were with him on the brief for respondent.
Charles N. Henson, of Eidson, Lewis, Porter & Haynes, Topeka, argued the cause and Richard F. Hayse, Topeka, was with him on the brief for intervenor.
Paul Arabia, Wichita, was on the brief amici curiae, for The Portobello Club, Inc., and Down Home, Inc.
This is an original action in quo warranto brought by the attorney general challenging the authority of the Director of the Alcoholic Beverage Control Board to issue licenses to class B clubs where liquor may be sold and served in conjunction with the sale and consumption of food.
The issue in this case is whether the 1978 legislative amendments to K.S.A. 41-2601 Et seq., and K.S.A. 41-803, authorize the maintenance of an "open saloon" in violation of article 15, section 10 of the Kansas constitution.
The 1978 Kansas legislature amended the Private Club Act, K.S.A. 41-2601 Et seq., to authorize the issuance of liquor licenses for class B clubs which are Licensed food service establishments as defined in K.S.A. 1977 Supp. 36-501. New section 11 of chapter 186, laws of 1978, provides:
The legislature, by amending K.S.A. 41-2601, authorized a new type of class B restaurant-club and defined it as follows:
"(B) A premises which is a licensed food service establishment, as defined by K.S.A. 1977 Supp. 36-501 and amendments thereto, of which not less than fifty percent (50%) of the gross receipts in each calendar year are from the sale of food for consumption on the premises." L. 1978, ch. 186, § 3.
Furthermore, under the new law, class B restaurant-clubs are licensed without membership cards, membership lists, dues, waiting periods, carry-in bottle or liquor pool requirements.
The 1978 legislature also amended the statutory definition of "open saloon." K.S.A. 41-803 of the Liquor Control Act as amended now provides in pertinent part:
"(A ) It shall be unlawful for any person to own, maintain, operate or conduct either directly or indirectly, an open saloon.
"(B ) As used in section 10 of article 15 of the constitution of the state of Kansas and this section, 'open saloon' means any place, public or private, where alcoholic liquor is sold or offered or kept for sale by the drink or in any quantity of less than two hundred (200) milliliters (6.8 fluid ounces) or sold or offered or kept for sale for consumption on the premises where sold, But does not include any class B club licensed in accordance with K.S.A. 41-2601 to 41-2634, inclusive, and amendments thereto." L. 1978, ch. 189, § 13.
Preliminary to our discussion of the merits of this action, the background of liquor regulation in Kansas should be studied. From the very outset of our state's history, the legality of alcoholic liquor has been a subject of debate, and the state constitution has been the forum for that debate.
At the Wyandotte Constitutional Convention in 1859, a prohibitory provision stating that "the Legislature shall have the power to regulate or prohibit the sale of alcoholic liquor except for mechanical and medicinal purposes" was proposed and subsequently withdrawn. The constitution was adopted without any reference to alcoholic liquor.
In 1880, however, the voters approved the original version of article 15, section 10 of the constitution which provided:
"The manufacture and sale of intoxicating liquors shall be forever prohibited in this state, except for medical, scientific and mechanical purposes."
Thereafter the legislature defined those acts which constituted a manufacture and sale as well as described the substance which could be regarded as intoxicating liquor. It also defined what substances could not be sold for medical, scientific and mechanical purposes. See L. 1881, ch. 128, §§ 2, 10.
Suffice it to say under these laws so-called patent medicines enjoyed a steady increase in popularity. The problems which arose prompted the legislature to respond in 1909 and 1911 by amendments which removed the "medical, scientific and mechanical exception" and substituted a provision which allowed certain wholesale druggists to sell alcohol to registered pharmacists for medicinal purposes. See L. 1909, ch. 164, § 1; L. 1911, ch. 178, § 1. Our court upheld these new laws in numerous cases. Thus, the passage of the 18th amendment to the Constitution of the United States in 1919 prompted little change in an already "dry" Kansas.
In 1933, the 21st amendment to the Constitution, which repealed the 18th amendment was passed. That same year a special session of the Kansas legislature agreed to submit to the voters of 1934 a proposed amendment to the Kansas constitution which provided:
"The legislature may license and regulate the manufacture, sale, possession and transportation of all liquor having any alcoholic content, and may impose special taxes on all malt, vinous and spirituous liquors, and may provide for the prohibition of such liquors in certain areas." L. 1933, special session, ch. 128, § 1.
The provision contained no open saloon prohibition and was defeated.
Soon after, the Kansas legislature in 1937 directed that 3.2% Beer was not an intoxicating liquor and authorized its sale by licensees throughout the state. This law is now codified as K.S.A. 41-2701 Et seq. and has been consistently upheld by our court. See E.g. Johnson v. Reno County Comm'rs, 147 Kan. 211, 212, 75 P.2d 849 (1938); Linquist v. City of Lindsborg, 165 Kan. 212, 214-16, 193 P.2d 180 (1948).
In 1947, the legislature proposed the amendment of article 15, section 10 of the constitution to provide:
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