ThorntoN, J;
— Plaintiff seeks a declaration of tbe legality of its operation of its ballroom under tbe Iowa Liquor Control Act as amended by tbe Sixtieth General Assembly, effective July 4, 1963. Plaintiff is not á permit bolder. Due to tbe zoning ordinance it cannot obtain a Class “B” beer permit and cannot qualify as a liquor license bolder under tbe Liquor Control Act.
[310]*310The statutes involved are section 123.42, Code of Iowa, 1962, as amended by the Sixtieth General Assembly, and section 30, chapter 114, Sixtieth General Assembly, now section 123.96.
Section 123.42, as amended is, in part:
“Consumption in public places — intoxication. It is hereby made unlawful for any person to use or consume any alcoholic liquors upon the public streets or highways, or in any public place except premises covered by a liquor control license, and no person shall be intoxicated nor simulate intoxication in a public place; * *
Section 30 of chapter 114 of the Sixtieth General Assembly added the following to chapter 123, Code of Iowa, 1962:
“It is unlawful for any person, firm, corporation, partnership, or association to allow the dispensing or consumption of intoxicating liquor or intoxicating beverages except sacramental wines and beer, in any establishment unless such establishments are licensed under this title.
“Provided, however, the provisions of this section shall not apply to bona fide conventions or meetings where mixed drinks are served to delegates or guests without cost. All other provisions of this chapter shall be applicable to such rooms. The provisions of this section shall have no application to occasional private social gatherings of friends or relatives in a private home or place.”
Plaintiff’s contention is it comes within the exception, that the operation of its ballroom is an occasional private social gathering of friends in a private place. The trial court so held and we agree.
Plaintiff operates an apartment building. In the building is a 50- by 90-foot ballroom. The rental of the ballroom is a substantial part of plaintiff’s regular business. Its manager testified the income therefrom was 12% percent of its net receipts. The ballroom is rented to various clubs and associations. The rental charge is $335 per night from 9 p.m. to 1 a.m.
Those who bring intoxicating liquor on the premises are members of dancing clubs. The dancing clubs were organized many years ago and have a well established membership. There is no question of subterfuge in this regard. See State v. Perry, [311]*311246 Iowa 861, 69 N.W.2d 412. Members bring their own liquor, The dance club, not plaintiff, arranges for mix and ice from a supplier. The mix and ice are served from a room included in the ballroom by a bartender employed by the dance club, not plaintiff. The usual charge made by the dance club to its members for mix and ice is 15‡ a setup to defray the cost. The club members mix their own drinks. Neither the dance club nor plaintiff serves mixed drinks or in anyway handles the liquor. The dance club arranges for the orchestra and makes its charge or determines the share of expense to its members. The dance club officers attend the door. There is no evidence anyone besides club members and their guests attend the dances or are admitted to the ballroom. All plaintiff furnishes is the ballroom, tables, chairs and glasses. Some eight to ten dance clubs each rent the ballroom six to eight times during the fall and winter months on irregular dates.
Defendants urge for reversal the exception should be strictly construed so as not to unduly encroach on the general statutory prohibition and contend the evidence falls short of showing plaintiff’s operation comes within the exception within the meaning of the words “occasional”, “friends” and “private place.”
I. Of course the exception should not be so broadly construed as to nullify the general prohibition. Dingman v. City of Council Bluffs, 249 Iowa 1121, 1132, 90 N.W.2d 742; and Wood Brothers Thresher Co. v. Eicher, 231 Iowa 550, 562, 1 N.W.2d 655. In construing statutes the legislative intent is determined by what the legislature said, rather than what it should have said or might have said. See rule 344(f) 13, Rules of Civil Procedure. Courts may not, under the guise of construction, extend, enlarge or otherwise change the terms of a statute. Bergeson v. Pesch, 254 Iowa 223, 227, 117 N.W.2d 431. The words in the statutes under consideration are in common use and should be given their commonly understood meaning. In re Trust of Highland Perpetual Maintenance Society, Inc., 254 Iowa 164, 169, 117 N.W.2d 57.
Consumption of liquor is prohibited in a public place except on premises covered by a liquor control license. Section 123.42, [312]*312Code of Iowa, 1962, as amended by the Sixtieth General Assembly.
Plaintiff is prohibited by section 30, chapter 114, Sixtieth General Assembly, from allowing the dispensing or consumption of intoxicating liquor in its establishment; the exception in section 30, contended for here, is “occasional social gatherings of friends in a private place.”
II. Defendants contend the rule of ejusdem generis should be applied in construing the word “place” as it appears in section 30. The use is, “in a private home or place.” Defendants urge “place” must not be construed broader than the word “home.” The rule is inapplicable. As pointed out by the trial court, “private” should be applied to both “home” and “place.” No one could read the exception and get the intention that “private” does not modify both “home” and “place.” When so read we have “a private home or a private place.” Both have similar and dissimilar qualities. If only the similar qualities were intended, the word “place” is surplusage.
The proper application of the rule of ejusdem generis is demonstrated and explained in State v. Wignall, 150 Iowa 650, 128 N.W. 935, 34 L. R. A., N. S., 507, cited by defendants and in Hewitt v. Whattoff, 251 Iowa 171, 100 N.W.2d 24. In the Wig-nall case the rule was applied to a statute making it a crime for “any express or railway company, or any common carrier, or person” to deliver liquor without a certificate. It was there held the meaning of the general word, “person,” in that series should be limited to persons acting’ as private or common carriers, activities similar or like those specifically stated.
In Hewitt (page 175) we quote from 28 C. J. S., Ejusdem Generis, pages 1049, 1050:.
“Where an enumeration of specific things is followed by some more general word or phrase, such general word or phrase is to be held to refer to things of the same kind, as in the case of a ‘clean-up’ phrase, such as the term ‘otherwise’ with respect to a classification which immediately precedes it.”
“Place” as here used is not a general or clean-up word.
Free access — add to your briefcase to read the full text and ask questions with AI
ThorntoN, J;
— Plaintiff seeks a declaration of tbe legality of its operation of its ballroom under tbe Iowa Liquor Control Act as amended by tbe Sixtieth General Assembly, effective July 4, 1963. Plaintiff is not á permit bolder. Due to tbe zoning ordinance it cannot obtain a Class “B” beer permit and cannot qualify as a liquor license bolder under tbe Liquor Control Act.
[310]*310The statutes involved are section 123.42, Code of Iowa, 1962, as amended by the Sixtieth General Assembly, and section 30, chapter 114, Sixtieth General Assembly, now section 123.96.
Section 123.42, as amended is, in part:
“Consumption in public places — intoxication. It is hereby made unlawful for any person to use or consume any alcoholic liquors upon the public streets or highways, or in any public place except premises covered by a liquor control license, and no person shall be intoxicated nor simulate intoxication in a public place; * *
Section 30 of chapter 114 of the Sixtieth General Assembly added the following to chapter 123, Code of Iowa, 1962:
“It is unlawful for any person, firm, corporation, partnership, or association to allow the dispensing or consumption of intoxicating liquor or intoxicating beverages except sacramental wines and beer, in any establishment unless such establishments are licensed under this title.
“Provided, however, the provisions of this section shall not apply to bona fide conventions or meetings where mixed drinks are served to delegates or guests without cost. All other provisions of this chapter shall be applicable to such rooms. The provisions of this section shall have no application to occasional private social gatherings of friends or relatives in a private home or place.”
Plaintiff’s contention is it comes within the exception, that the operation of its ballroom is an occasional private social gathering of friends in a private place. The trial court so held and we agree.
Plaintiff operates an apartment building. In the building is a 50- by 90-foot ballroom. The rental of the ballroom is a substantial part of plaintiff’s regular business. Its manager testified the income therefrom was 12% percent of its net receipts. The ballroom is rented to various clubs and associations. The rental charge is $335 per night from 9 p.m. to 1 a.m.
Those who bring intoxicating liquor on the premises are members of dancing clubs. The dancing clubs were organized many years ago and have a well established membership. There is no question of subterfuge in this regard. See State v. Perry, [311]*311246 Iowa 861, 69 N.W.2d 412. Members bring their own liquor, The dance club, not plaintiff, arranges for mix and ice from a supplier. The mix and ice are served from a room included in the ballroom by a bartender employed by the dance club, not plaintiff. The usual charge made by the dance club to its members for mix and ice is 15‡ a setup to defray the cost. The club members mix their own drinks. Neither the dance club nor plaintiff serves mixed drinks or in anyway handles the liquor. The dance club arranges for the orchestra and makes its charge or determines the share of expense to its members. The dance club officers attend the door. There is no evidence anyone besides club members and their guests attend the dances or are admitted to the ballroom. All plaintiff furnishes is the ballroom, tables, chairs and glasses. Some eight to ten dance clubs each rent the ballroom six to eight times during the fall and winter months on irregular dates.
Defendants urge for reversal the exception should be strictly construed so as not to unduly encroach on the general statutory prohibition and contend the evidence falls short of showing plaintiff’s operation comes within the exception within the meaning of the words “occasional”, “friends” and “private place.”
I. Of course the exception should not be so broadly construed as to nullify the general prohibition. Dingman v. City of Council Bluffs, 249 Iowa 1121, 1132, 90 N.W.2d 742; and Wood Brothers Thresher Co. v. Eicher, 231 Iowa 550, 562, 1 N.W.2d 655. In construing statutes the legislative intent is determined by what the legislature said, rather than what it should have said or might have said. See rule 344(f) 13, Rules of Civil Procedure. Courts may not, under the guise of construction, extend, enlarge or otherwise change the terms of a statute. Bergeson v. Pesch, 254 Iowa 223, 227, 117 N.W.2d 431. The words in the statutes under consideration are in common use and should be given their commonly understood meaning. In re Trust of Highland Perpetual Maintenance Society, Inc., 254 Iowa 164, 169, 117 N.W.2d 57.
Consumption of liquor is prohibited in a public place except on premises covered by a liquor control license. Section 123.42, [312]*312Code of Iowa, 1962, as amended by the Sixtieth General Assembly.
Plaintiff is prohibited by section 30, chapter 114, Sixtieth General Assembly, from allowing the dispensing or consumption of intoxicating liquor in its establishment; the exception in section 30, contended for here, is “occasional social gatherings of friends in a private place.”
II. Defendants contend the rule of ejusdem generis should be applied in construing the word “place” as it appears in section 30. The use is, “in a private home or place.” Defendants urge “place” must not be construed broader than the word “home.” The rule is inapplicable. As pointed out by the trial court, “private” should be applied to both “home” and “place.” No one could read the exception and get the intention that “private” does not modify both “home” and “place.” When so read we have “a private home or a private place.” Both have similar and dissimilar qualities. If only the similar qualities were intended, the word “place” is surplusage.
The proper application of the rule of ejusdem generis is demonstrated and explained in State v. Wignall, 150 Iowa 650, 128 N.W. 935, 34 L. R. A., N. S., 507, cited by defendants and in Hewitt v. Whattoff, 251 Iowa 171, 100 N.W.2d 24. In the Wig-nall case the rule was applied to a statute making it a crime for “any express or railway company, or any common carrier, or person” to deliver liquor without a certificate. It was there held the meaning of the general word, “person,” in that series should be limited to persons acting’ as private or common carriers, activities similar or like those specifically stated.
In Hewitt (page 175) we quote from 28 C. J. S., Ejusdem Generis, pages 1049, 1050:.
“Where an enumeration of specific things is followed by some more general word or phrase, such general word or phrase is to be held to refer to things of the same kind, as in the case of a ‘clean-up’ phrase, such as the term ‘otherwise’ with respect to a classification which immediately precedes it.”
“Place” as here used is not a general or clean-up word. It is modified by “private” and refers to a “private place” as distinguished from a “private home.”
[313]*313III. Whether the ballroom as here used was a private place is determined by the type of use it was put to on the occasions in question. Certainly a public dance could be held there.
In Securities and Exchange Commission v. Sunbeam Gold Mines Co. (9 Cir.), 95 F.2d 699, 701, is this pertinent statement:
“To determine the distinction between ‘public’ and ‘private’ in any particular context, it is essential to examine the circumstances under which the distinction is sought to- be established and to consider the purposes sought to be achieved by such distinction.”
Section 123.5(19) of the Liquor Control Act defines “public place” as follows: “ ‘Public place’ includes any place, building or conveyance to which the public has or is permitted to have access and any place of public resort.”
It goes without saying a private place is the opposite — one to which the public does not have and is not permitted to have access and is not a place of public resort.
What this court said in State v. Perry, 246 Iowa 861, 867, 69 N.W.2d 412, 416, points up the situation:
“To admit perfect strangers to a clubroom upon the payment of a one-dollar fee and no other requirement, qualification or identification, clearly falls short of proof, even inferentially, that such a place was private.”
So long as the clubs renting plaintiff’s ballroom restricted the attendance to their members and their guests as shown here the ballroom is a private place. Likewise the gathering is private when the attendance is so restricted.
IV. Defendants urge plaintiff’s operation is not an occasional gathering of friends or relatives, but a regular and continuous operation and not within the exception. If this construction of the statute is accepted the exception provided could not be effective in a private place outside of a private home. It could hardly be assumed the group holding the gathering would own or have available a “private place” for any gathering for a group large enough to have outside of a private home. Some clubs, of course do, and such are often available to others for either private or public use. “Occasional” as used here is an adjective modifying “private social gatherings.” It does not refer to plain[314]*314tiff. Plaintiff is the one referred to in the first paragraph of section 30 who is prohibited from allowing the dispensing or consumption of liquor in any establishment. Under this record it has no part in the gathering except furnishing the ballroom. There is nothing in section 30, in either the prohibition or the exception, that fairly leads to the conclusion that under these facts the legislature intended the word “occasional” to constitute a restriction on the landlord. If this ballroom was rented for successive wedding receptions or birthday parties, each event would be occasional for the tenant but a regular part of the landlord’s business.
In the New American Webster Handy College Dictionary it is briefly defined, “1, occurring now and then; 2, incidental.” “Occasion” as a noun is there defined, “1, a special event, ceremony, * * *; 5, a particular time; the time of a special happening.”
In Webster’s Third New International Dictionary, unabridged, “occasional” as an adjective is defined, “1: occurring or operating on a particular occasion * * * 4: met with, appearing, or occurring irregularly and according to no fixed or certain scheme.”
Surely any special event, e.g., a wedding reception, is an occasional event. Likewise an anniversary party, though it occurs regularly each year, though usually not part of a plan or scheme.
Court definitions differ widely. In Biermann v. Guaranty Mutual Life Ins. Co., 142 Iowa 341, 346, 120 N.W. 963, 965, this court at an earlier date said of the statement, “a glass of beer occasionally” in an application for insurance: “* * * an ‘occasional’ glass of beer may mean anything from a glass once a month to one every fifteen minutes, according to the capacity of the individual, or, perhaps, according to the ‘liberality’ of his views.”
Defendants cite authority holding five sales in a year operated to exclude a business from the occasional sales exceptions in California sales tax law. Pacific Pipeline Construction Co. v. State Board of Equalization, 49 Cal.2d 729, 321 P.2d 729. A reading of this case points out the business character of these [315]*315sales. Numerous definitions of “occasional” and “occasion” are found in Volume 29, Words and Phrases, and. pocket parts. They do not differ materially from the dictionary definitions.
The gatherings here are irregular. No set pattern or plan is followed. They occur on the occasion of the club having a dance. They could as well be any event. There is nothing in this record-to suggest a subterfuge to violate the liquor laws either by plaintiff or the dance clubs. Simply, the gatherings are occasional. ’
V. The evidence shows those attending the dances are all members of the club holding the dance or the guests of such members. “Friend” is defined in Webster’s Third New International Dictionary as, “la: one that seeks the society or welfare-of another whom he holds in affection] respect or esteem or whose companionship and personality are pleasurable.” Synonyms' are “acquaintance”, “intimate” and “confidant.” The mémbers of the clubs are friends, even though club officers check them at the door.
VI. This action is in equity. Plaintiff' sought and was granted a temporary injunction. On final hearing the trial court properly refused to permanently enjoin defendants. The operation of plaintiff, confined to the facts in evidence, is not illegal, and comes within the exception. — Affirmed.,
. LáRSON, Peterson, Snell, Moore and Stuart, JJ., concur.
Thompson, J., and G-areield, C. J., dissent.
HAVSj J., takes no part,