State ex inf. v. Missouri Athletic and St. Louis Clubs. enact laws of this character is a construction of the dramshop law by the State, represented by its officials, authorizing sales of liquor without license by such clubs. Whereupon, respondents plead that such failure or refusal on the part of the lawmaking power operates as an estoppel upon relator from claiming that the dramshop law applies to bona-fide social clubs; that respondents, relying upon the fact that they have never heretofore been molested in the sale of liquors without license, or in the violation of section 7226, supra, have expended large sums of money in furnishing and equipping their club houses, and that relator, by reason of the nonaction of the Legislature and the failure of the law officers to proceed against them for years after respondents had organized and were in operation as social clubs, should not be heard to complain against them. Relator's reply in each case is a general denial, and in addition in one it is alleged that the suit pleaded in abatement by respondents (State ex rel. Bell v. St. Louis Club, supra) was brought by an unauthorized person and the proceedings therein were void, and that the facts in that and the instant cases are not identical, and that section 7226, supra, had not been enacted when the Bell case was determined. Agreed statements of facts detail the character of each club as a social organization, the nature and amount of its expenditures, including the expenditures for intoxicating liquors; the nature and amount of income, including that charged to members and their nonresident guests for intoxicating liquors; the manner in which the club is governed, and numerous other matters not necessary to be set out here. As to the dispensing of liquors, practically the same plan is pursued in each club. If a member desires liquor he orders same and it is served to him in the club; on receiving it he signs a card acknowledging the receipt of same and stating the price; he makes payment for State ex inf. v. Missouri Athletic and St. Louis Clubs. same within a stated time thereafter. Stress is laid in each statement upon the member receiving the liquor and not paying for it at the time, and that he is not permitted, under the rules, to pay for the liquor when received, but subsequently when he pays for his supplies for the month, and as a part of such supplies; that the same prices are charged members for liquors as are required to be paid at licensed cafes and dramshops for like goods; that the money received by respondents for liquors is mingled with the other funds and used in replenishing the stock of liquors and in purchasing other supplies; that no profit has ever been made by these clubs or paid to members. A complete statement of each club's entire accounts for the preceding year accompanies the recital of the agreed facts. The questions confronting us are so interrelated that their discussion, with probably some prolixity, becomes necessary to a determination of the issues involved. Sale: I. It is scarcely worth while at this day and time to consume space discussing the character of the liquor traffic, except to say that early in our judicial history Judge NAPTON, who may well be styled the Story of our jurisprudence, said, in Austin v. State, 10 Mo. 591, that "the sale of intoxicating liquors is by law illegal and is not a privilege of a citizen of this or any other State, and that the right to sell same can only be acquired by complying with the law." Thirty-five years later, with no adverse intimation in the interim, this court reiterated the doctrine announced in the Austin case, supra, and in a per curiam opinion in State ex rel. v. Hudson, 78 Mo. 302, said, in addition, that "the license fee exacted of dramshop keepers is not a tax, but a price paid for the privilege of carrying on a business detrimental to public morals, and which the Legislature in the exer State ex inf. v. Missouri Athletic and St. Louis Clubs. cise of its police power has the right to prohibit altogether." And BURGESS, J., in State v. Seebold, 192 Mo. 1. c. 727, said: "It is fundamental that no one has a natural right to sell intoxicating liquor, because the tendency of its use is to deprave public morals, and to do so without a license from proper authority is unlawful." (Citing cases.) So it was held in Higgins v. Talty, 157 Mo. 280, that a dramshop license was a mere permit, not a contract, between the State and the licensee, in which the latter has no vested rights, but is subject at all times to the police power and is revocable at any time the State may see proper to do so for any violation of the dramshop law, whether the license so provides or not. Other opinions of this court and the courts of appeals add such force to the doctrine announced as repetition and unvarying adherence give to any judicial declaration. The last word on the subject has been so aptly said by WOODSON, J., speaking for this court, in State v. Parker Dist. Co., 236 Mo. 1. c. 255, that it may be appropriately incorporated here as follows: "The authorities also establish the fact that the liquor traffic is not a lawful business, except as authorized by express legislation of the State; that no person has the natural or inherent right to engage therein; that the liquor business does not stand upon the same plane, in the eyes of the law, with other commercial occupations. It is placed under the ban of the law, and it is thereby differentiated from all other occupations, and is thereby separated or removed from the natural rights, privileges and immunities of the citizen. "The foregoing enunciations of the courts are based upon the well known fact that intoxicating liquors and the traffic therein, have brought intemperance, poverty and misery upon many of our citizens, and have been a fruitful source of crime on every hand." State ex inf. v. Missouri Athletic and St. Louis Clubs. These observations and conclusions are quoted, not as the great Cham of literature said, "to point a moral," but to throw light upon the view askance which has been taken by our courts of the traffic in intoxicants, and as a guide in determining what constitutes a sale of liquor within the meaning of the law. The statute relative thereto reads that: "No person shall, directly or indirectly, sell intoxicating liquors in any quantity less than three gallons, either at retail or in the original package, without taking out a license as a dramshop keeper." [Sec. 7188, R. S. 1909.] Incidentally it may be said in this connection, that while the statute, of which this section is a part, prescribes a penalty for its violation, and that penal statutes are, as a general rule, strictly construed, it has been held here and elsewhere that laws in regard to the sale of intoxicating liquors ought to be so construed as to carry out the true purpose of their enactment (State v. Walker, 221 Mo. 1. c. 516, affirming 129 Mo. App. 1. c. 374); and in accomplishing this purpose they should be liberally construed. [Seattle v. Foster, 47 Wash. 172; Cox v. Burnham, 120 Iowa, 43; People ex rel. v. Craig, 112 N. Y. Supp. 1142.] Probably the rule in regard to the construction of this class of statutes is best stated in a New York case, Mead v. Stratton, 87 N. Y. 493, in which it is said: "While a statute of this character should not be enlarged, it should be interpreted, where the language is clear and explicit, according to its true intent and meaning, having in view the evil to be remedied and the object to be attained." In addition to the rule in this regard here and elsewhere, section 7222, Revised Statutes 1909, gives us a definite guide as to the construction to be given our dramshop law. Aided by this rule of interpretation, the solution of the question as to what constitutes a sale of intoxicating liquors ought not be a difficult matter. However, at the threshold of a consideration of this case, we are confronted with the ruling of this State ex inf. v. Missouri Athletic and St. Louis Clubs. court in State ex rel. v. St. Louis Club, 125 Mo. 308, in which it was held by Division Number Two that the sale of liquor by a bona-fide social club not incorporated for profit, to a member, is not a sale within the inhibition of the dramshop law. Of this seeming lion in the path, more anon. Irrespective of this ruling for the nonce, what is a sale within the meaning of the statute? Our own courts have defined a sale of personal property to be a transfer of the absolute or general property in a thing for a price in money. [State v. Wingfield, 115 Mo. 1. c. 436; Barrie v. United Rys. Co., 138 Mo. App. 1. c. 653.] In acts prohibiting the sale of intoxicating liquors elsewhere. the word "sale" has been construed in a comprehensive sense to include what is known as barter and exchange. [James v. State, 124 Ga. 72; Howell v. State, 124 Ga. 698; Coulter v. Portland Trust Co., 20 Ore. 469.] Justice GRAY of the United States Supreme Court, in Iowa v. McFarland, 110 U. S. 471, 28 Fed. 198, said that "A sale, in the ordinary sense of the word, is a transfer of property for a fixed price in money or its equivalent;" and Benjamin in his admirable treatise has defined a sale by pointing out its prime essentials; to constitute a valid sale, there must, he says, be a concurrence of the following elements, viz: (1) parties competent to contract; (2) mutual assent; (3) a thing, the absolute or general property in which is transferred from the seller to the buyer; and (4) a price in money paid or promised therefor. [Benjamin on Sales, secs. 1, 2.] Without unduly extending this discussion, what elements necessary to a sale do we find in the instant case? First, there is present the parties, a seller and a buyer-the one an artificial entity, it is true, but having a legal existence, and capable of contracting; the other, a natural person, and although he is buying from the artificial person and is enabled to buy by reason of his membership or as a shareholder, he has no such individualized ownership in the con |