The opinion of the court was delivered by
Schroeder, C.J.:
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 etseq., to authorize the issuance of liquor licenses for class B clubs which are licensed food service establishments as defined in K.S.A. 1977Supp. 36-501. New section 11 of chapter 186, laws of 1978, provides:
“(a) A club license for a class B club specified in subsection (b)(3)(B) of K.S.A. [15]*151977 Supp. 41-2601 and amendments thereto shall allow the licensee to sell and offer for sale alcoholic liquor 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.
“(b) This section shall be part of and supplemental to K.S.A. 41-2601 to 41-2635, inclusive, and amendments thereto.”
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.”
[16]*16Thereafter 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:
“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 [17]*17and transportation of intoxicating liquors. The open saloon shall be and is hereby forever prohibited.” L. 1947, ch. 248, § 1. (Emphasis added.)
Unlike the 1933 proposal, this amendment, which was approved by the voters of 1948 and remains the law in Kansas today, prohibits the open saloon.
Shortly thereafter in 1949, the legislature passed a comprehensive liquor control scheme known as the Kansas Liquor Control Act, now codified at K.S.A. 41-101 et seq. For purposes of this section the legislature defined “open saloon” in K.S.A. 41-803 as “any place, public or private, where alcoholic liquor is sold or offered for sale or kept for sale by the drink ... or sold, offered for sale, or kept for sale for consumption on the premises where sold.”
During the years that followed the enactment of the Kansas Liquor Control Act various private clubs were conceived to dispense alcoholic liquor. In State v. Larkin, 173 Kan. 112, 244 P.2d 686 (1952), our court overturned one such arrangement as a subterfuge of the Act.
The legislature subsequently responded to the severe law enforcement problem by enacting “The Private Club Act” of 1965. K.S.A. 41-2601 et seq. It provided that on and after July 31, 1965, the consumption of alcoholic liquor at any place other than that provided in the act “shall be deemed to be the consumption of alcoholic liquor in a place to which the general public has access.” K.S.A. 41-2603. (Emphasis added.) Under the terms of that Act the Director of the Alcoholic Beverage Control can issue licenses to class A clubs (those which are not operated for profit) and class B clubs (those which are operated for profit). The consumption of alcoholic liquor on the premises of such clubs is deemed to be consumption in a place to which the general public has no access. The consumption of. liquor by the drink is authorized by the Act (K.S.A. 41-2602) in four places which are defined: (1) Upon private property by those occupying the private property as owner or as the lessee of the owner and by their guests where no charge is made by the owner or lessee for the alcoholic liquor served; (2) at a class A or class B club licensed by the Alcoholic Beverage Control Director; (3) in a lodging room of any hotel, motel or boarding house where the alcoholic liquor is consumed by the occupant or his guests, provided the occupant is not engaged in the sale of liquor; and (4) in a private dining room [18]*18of a hotel, motel or restaurant rented for a special occasion for a private party, where there is no sale of the alcoholic liquor.
The Private. Club Act of 1965 was upheld in Tri-State Hotel Co. v. Londerholm, 195 Kan. 748, 408 P.2d 877 (1965).
Then, in 1970 the people of Kansas were given the opportunity to amend article 15, section 10 of the constitution to exclude the open saloon prohibition. SeeL. 1970, ch. 189, § 1. The proposition was rejected on Novembers, 1970, by a narrow margin of 346,423 votes against the amendment to 335,094 for it.
For an exhaustive article on the history of intoxicating liquor in Kansas, complete with authoritative citation, see Clark, Wyatt Earp and the Winelist: Is a Restaurant an “Open Saloon?”, 47 J.R.A.K. 63 (1978).
While the liquor issue remained a topic of heated debate in subsequent years, no significant changes occurred in the law until 1978 when the legislature amended both the Private Club Act, K.S.A. 41-2601 et seq., and K.S.A. 41-803 to authorize the sale of liquor in conjunction with the serving of food by a licensed “food service establishment, as defined by K.S.A. 1977 Supp. 36-501 and amendments thereto.”
The validity of this new law was soon challenged in a quo warranto action filed by the attorney general on July 6, 1978, in the Supreme Court of Kansas. Thereafter, a motion by the Kansas Hotel and Motel Association to intervene was filed on July 21, 1978, and subsequently granted on August 2, 1978, and application to file a brief as amici curiae was granted to The Portobello Club, Inc., and Down Home, Inc., on August 28, 1978. The attorney general was ordered to file his brief on or before September 28, 1978, and the respondent, intervenor and amici were ordered to file briefs by October 12, 1978. The clerk was ordered on the court’s own motion to advance the case for hearing. The case was advanced and given a preferential setting on the Supreme Court’s docket to be heard on October 27, 1978. Motions by amici curiae and the intervenor, both proponents of the liquor legislation, for an extension of time to file their briefs out of time were denied in order to prevent further delay.
At no time did the petitioner, the respondent, the intervenor or amici suggest to the court or request by motion expedited consideration or decision in this case prior to the general election on November 7, 1978.
[19]*19On this state of the record oral arguments were heard on October 27, 1978. Counsel for the respondent in oral argument to the court on that date requested the court to announce its decision prior to certification of the county referendum by the secretary of state. See L. 1978, ch. 186, § 10.
Notwithstanding validity of the legislation was under constitutional attack by the attorney general, at the time of oral argument 45 counties in Kansas were submitting the question concerning the licensing of class B clubs specified in subsection (h)(3)(B) of L. 1978, ch. 186, § 3, to the qualified voters of their respective counties at the general election pursuant to L. 1978, ch. 186, § 10.
After duly considering the briefs and oral arguments of the respective parties, the intervenor and amici curiae this court entered judgment for the petitioner in State ex rel. Schneider v. Kennedy, 225 Kan. 1, 586 P.2d 276 (1978) as follows:
“After examining the record and giving the matter due consideration we hold, by a divided court, the petitioner’s writ of quo warranto shall be granted. The court finds 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.
“This brief opinion announcing the decision of the court will be supplemented by a formal opinion to be filed when it is prepared.”
With this brief historical background we now consider petitioner’s claim that 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 constitution.
A brief review of the function of the Supreme Court in determining a constitutional question within the spectrum of our constitutional form of government is in order at this point.
Statements made in State, ex rel, v. City of Topeka, 31 Kan. 452, 2 Pac. 593 (1884), that the various branches or departments of the government are simply the instruments of sovereignty, and not the sovereignty itself, are explained in State v. Durein, 70 Kan. 1, 78 Pac. 152 (1904), aff’d on rehearing 70 Kan. 13, 80 Pac. 987 (1905), aff’d 208 U.S. 613, 52 L.Ed. 645, 28 S.Ct. 567 (1908), where the court said:
“But the people have set the constitution over themselves as a limitation upon their own sovereignty, and it is their duty to obey it precisely the same as officials [20]*20who are given authority under it. By that instrument a government has been established, and its powers defined and distributed. Among the powers granted are such as are designated legislative, executive, and judicial. These are sovereign powers, and the people, having delegated them to instruments of their own creation, cannot interfere with their exercise. They may meet in their organized political capacity and change the fundamental law, but so long as the constitution stands they cannot legislate, or execute laws, or adjudicate controversies. The recognition of any other doctrine would sound the death-knell of constitutional government.
“It is elementary law that grants of power by state constitutions to state legislatures include all legislative power that is not expressly withheld.” (pp. 36,37.)
It is fundamental that our state constitution limits rather than confers powers. Where the constitutionality of a statute is involved, the question presented is, therefore, not whether the act is authorized by the constitution, but whether it is prohibited thereby. Hunt v. Eddy, 150 Kan. 1, 90 P.2d 747 (1939); see also Leek v. Theis, 217 Kan. 784, 539 P.2d 304 (1975); Schumacher v. Rausch, 190 Kan. 239, 372 P.2d 1005 (1962); State, ex rel., v. Anderson, 180 Kan. 120, 125, 299 P.2d 1078 (1956).
The constitutionality of a statute is presumed, all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the constitution. Leek v. Theis, 217 Kan. at 784, Syl. ¶ 2; see also Rogers v. Shanahan, 221 Kan. 221, 223, 565 P.2d 1384 (1976); State, ex rel., v. Bennett, 219 Kan. 285, 289, 547 P.2d 786 (1976); Brown v. Wichita State University, 219 Kan. 2, 9-10, 547 P.2d 1015 (1976).
In determining constitutionality, it is the court’s duty to uphold a statute under attack rather than defeat it and if there is any reasonable way to construe the statute as constitutionally valid, that should be done. State, ex rel., v. Fadely, 180 Kan. 652, Syl. ¶ 2, 308 P.2d 537 (1957). See also Brown v. Wichita State University, 219 Kan. at 2, Syl. ¶ 3; Leek v. Theis, 217 Kan. at 792; Shelton v. Phalen, 214 Kan. 54, Syl. ¶ 5, 519 P.2d 754 (1974).
Statutes are not stricken down unless the infringement of the superior law is clear beyond substantial doubt. Hunt v. Eddy, 150 Kan. at 2, Syl. ¶ 7; see also In re Estate of Diebolt, 187 Kan. 2, 13, 353 P.2d 803 (1960); State, ex rel., v. Urban Renewal Agency of Kansas City, 179 Kan. 435, Syl. ¶ 1, 296 P.2d 656 (1956); State, ex rel., v. Board of Education, 173 Kan. 780, 790, 252 P.2d 859 (1953).
[21]*21Courts do not strike down legislative enactments on the mere ground they fail to conform with a strictly legalistic definition on technically correct interpretation of constitutional provisions. The test is rather whether the legislation conforms with the common understanding of the masses at the time they adopted such provisions and the presumption is in favor of the natural and popular meaning in which the words were understood by the adopters. Hunt v. Eddy, 150 Kan. at 2, Syl. ¶ 6; Leek v. Theis, 217 Kan. at 793; State, ex rel., v. Highwood Service, Inc., 205 Kan. 821, 825, 473 P.2d 97 (1970); Wall v. Harrison, 201 Kan. 600, 603, 443 P.2d 266 (1968); Higgins v. Cardinal Manufacturing Co., 188 Kan. 11, 360 P.2d 456 (1961).
The propriety, wisdom, necessity and expedience of legislation are exclusively matters for legislative determination and courts will not invalidate laws, otherwise constitutional, because the members of the court do not consider the statute in the public interest of the state, since, necessarily, what the views of members of the court may be upon the subject is wholly immaterial and it is not the province nor the right of courts to determine the wisdom of legislation touching the public interest as that is a legislative function with which courts cannot interfere. State, ex rel., v. Fadely, 180 Kan. at 659; see also City of Wichita v. White, 205 Kan. 408, 469 P.2d 287 (1970); Republic Natural Gas Co. v. Axe, 197 Kan. 91, 415 P.2d 406 (1966); Tri-State Hotel Co. v. Londerholm, 195 Kan. at 760.
All the parties agree the definitional content of the term “open saloon” is not prescribed by the constitution. The petitioner questions whether the legislature has the power to enact controlling definitions of constitutional prohibitions. In State v. Nelson, 210 Kan. 439, 502 P.2d 841 (1972), our court held 1971 legislative amendments to the gambling laws which exempted bingo from the statutory definition of lottery unconstitutional. We stated:
“Although a constitution is usually a declaration of principles of fundamental law, many of its provisions being only commands to the legislature to enact laws to carry out the purposes of the framers of the constitution, it is entirely within the power of those 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.
“It is the function and duty of this court to define constitutional provisions. The definition should achieve a consistency so that it shall not be taken to mean one thing at one time and another thing at another time. It is the nature of the judicial process that the construction becomes equally as controlling upon the legislature [22]*22of the state as the provisions of the constitution itself.” (p. 445.) (Emphasis added.)
It is true as the respondent argues that the legislature may enact legislation to facilitate or assist in the operation of a prohibitory provision provided the legislation adopted is in harmony with and not in derogation of the provisions of the constitution. See State, ex rel., v. Board of Education, 212 Kan. 482, Syl. ¶ 7, 511 P.2d 705 (1973). However, this does not give the legislature carte blanche to circumvent the mandates of the constitution.
Our court must necessarily determine the scope and content of the open saloon prohibition. We are unaided by the two previous decisions cited by all the parties, the Larkin opinion and the Londerholm opinion, because the construction or definitional content of the term “open saloon” as used in the Kansas constitution was not in issue.
The petitioner argues the term “open saloon” is synonymous with liquor by the drink, while the respondent contends a licensed food service establishment, as defined by K.S.A. 1977 Supp. 36-501 and amendments thereto, which derives 50% or more of its gross receipts from the sale of food is not an open saloon. The respondent cites Hammond v. McDonald, 49 Cal. App. 2d 671, 122 P.2d 332 (1942) and Denver v. Gushurst, 120 Colo. 465, 210 P.2d 616 (1949) as authority.
The Hammond case, later followed in Covert v. State Board of Equalization, 29 Cal. 2d 125, 173 P.2d 545 (1946), relied upon a definition of “saloon” from Webster’s New International Dictionary (2d ed. 1934) to mean a place where liquor is sold for consumption on the premises “commonly without meals.”
This definition is not controlling for purposes of our determination. In fact, the evolution of the term “saloon” suggests a broader definition is in order. In the 1930 edition of Webster’s New International Unabridged Dictionary the term was defined as:
“A place where intoxicating liquors1 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.”
This definition was subsequently modified to that found in the Covert opinion. Today, Webster’s Third International Dictionary (1961) simply defines saloon as “a room or public establishment in which alcoholic beverages are sold and consumed.” See also [23]*23Black’s Law Dictionary 1506 (4th ed. rev. 1968); Marshall v. Smith, 86 Ohio Abs. 302, 306, 174 N.E.2d 558 (1960).
The California cases, Hammond and Covert, have no persuasive significance on the issue presently confronting this court. The California constitution in effect when these two cases were decided, after vesting in the state the exclusive power to regulate dealings with intoxicating liquors, further provided:
“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.” Hammond v. McDonald, 49 Cal. App. 2d at 675.
Clearly, the people of Kansas have not granted authority to the legislature in article 15, section 10 of the Kansas constitution as the people of California have done in their state. In California the people have given express authority in their constitution to dispense liquor for consumption on the premises in any bona fide hotel, restaurant, etc. The prohibition in the Kansas constitution is, “The open saloon shall be and is hereby forever prohibited.”
Moreover, the Gushurst opinion cited by the respondent is easily distinguishable from the case at bar. There, in referring to a prohibition against the establishment or maintenance of a “saloon” contained in article XXII of the Colorado constitution the court stated:
“We are persuaded, as all parties hereto seem to agree, 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.” (pp. 469-70.)
Kansas history differs significantly from the history of the State of Colorado.
The Colorado Supreme Court previously held in Lendholm v. People, 55 Colo. 467, 136 Pac. 70 (1913), the legislative definition of a “saloon” to be controlling, where it had defined the term as “any place where spirituous or vinous liquors are sold in quanti[24]*24ties of less than one quart.” There a restaurant which served any intoxicating liquors was held to be within the prohibition of the statute. The court specifically stated the comparative number of such sales of food and of liquor, or the comparative revenue derived from one or the other was not important. Thereafter the court in Gushurst approved a legislative change in the definition of a “saloon.”
As our history indicates, Kansas was primarily a “dry” state and any argument the open saloon prohibition was intended merely to prohibit the sale of liquor in a particular environment ignores the constitution.
Our court is faced with the construction of the term “open” as well as that of “saloon.” Foreign authority aids us little. Oklahoma has a constitutional prohibition regarding the open saloon, but the term is defined in the constitution.
Prior to November 3,1970, article 16, section 20(a) of the Texas constitution provided:
“The open saloon shall be and is hereby prohibited. The Legislature shall have the power, and it shall be its duty to define the term ‘open saloon’ and enact laws against such.
“Subject to the foregoing, the Legislature shall have the power to regulate the manufacture, sale, possession and transportation of intoxicating liquors, including the power to establish a State Monopoly on the sale of distilled liquors.” Williams v. State, 476 S.W.2d 307, 308 (Tex. Crim. 1972).
Under specific provisions of the Texas constitution as quoted, the Texas legislature was free to formulate its own definition of an “open saloon.”
In the Kansas constitution the term “open” connotes public as opposed to private and restrictive. The legislative interpretation of “open saloon” in the Private Club Act of 1965 discloses, in substance, that the legislature construed the term “open” to be within the parameters of the court’s interpretation of the term in this opinion.
We hold an open saloon is any establishment open to the public, without discrimination, where alcoholic beverages are dispensed or sold and served for consumption on the premises. Thus, under this definition, 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. The comparative revenue derived from food or alcoholic liquor is immaterial. Therefore this court finds the 1978 legislative amendments to [25]*25K.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.
As petitioner suggests the real issue in this case is whether the people of the state must be permitted to delete the prohibition against the “open saloon” by constitutional amendment rather than allow the legislature to authorize the sale of liquor by the drink through appropriate legislation. Our court has consistently protected the constitution against subtle and artful attempts to evade and circumvent it. We decline to depart from this role here.
Signals given in the 1978 amendments to the intoxicating liquor statutes that clearly indicate the legislature was attempting an end run around the Kansas constitutional prohibition of the “open saloon” are briefly summarized.
For 30 years the legislature followed its definition of an “open saloon” as set forth in K.S.A. 41-803 in 1949. It distinguished prívate consumption and sale of intoxicating liquor by the drink from public consumption and sale in the Private Club Act of 1965. That definition of an “open saloon” and the enactments which followed are reasonably within the parameters of the construction given the term “open saloon” in the Kansas constitution by the Supreme Court in this opinion.
In 1970 the legislature recognized an amendment to the constitution was required, if the sale of liquor by the drink for consumption on the premises was to be permitted in public places, by submitting to a vote of the people an amendment of article 15, section 10 of the Kansas constitution, but the voters of Kansas defeated the amendment.
Then in 1978 the legislature assumed it had the full right to define the term “open saloon” in the constitution because the constitution had not defined an open saloon. See Heinemann, Legislation 1978, 47 J.B.A.K. 81, at 101 (1978), and the Governor’s message on Senate bill 952, L. 1978, p. 1803. This is emphatically illustrated by the 1978 amendment of K.S.A. 41-803(b) which reads:
“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 withK.S.A. 41-2601 to 41-2634, inclusive, and amendments thereto. ” L. 1978, ch. 189, § 13.
[26]*26By this amendment the legislature disclosed it was redefining “open saloon” as used in section 10 of article 15 of the constitution of the State of Kansas. The people of Kansas, however, did not give the legislature the right to define an “open saloon” in the Kansas constitution.
Further, by amending the Private Club Act of 1965 (K.S.A. 41-2601 et seq.), which authorized private and restrictive consumption of liquor by the drink on certain premises, the legislature, in substance, did an about face and converted private to public by authorizing new class B clubs which were open to the general public to sell liquor by the drink for consumption on the premises.
It is argued the sale of liquor by the drink in bona fide restaurants is merely incidental to the sale of food which is served in the same room where the alcoholic liquor is sold for consumption. Although it is not necessary or material to this decision where we hold the dispensing or sale of any amount of intoxicating liquor in an establishment open to the public for consumption on the premises is violative of the constitutional prohibition, the nebulous character of this argument is illustrative. Nowhere does the legislature in the 1978 amendments to the intoxicating liquor laws use the term “bona fide restaurant.” It authorized the, sale of intoxicating liquor in a “licensed food service establish- ■. ment” as defined in K.S.A. 1977 Supp. 36-501 and amendments thereto, which reads:
“(e) ‘Food service establishment’ means any place in which food is served or is . prepared for sale or service on the premises or elsewhere. Such term shall include, but not be limited to, fixed or mobile restaurant, coffee shop, cafeteria, short-order cafe, luncheonette, grill, tea room, sandwich shop, soda fountain, tavern, private club, roadside stand, industrial-feeding establishment, catering kitchen, commissary and any other private, public or nonprofit organization or institution routinely serving food and any other eating or drinking establishment or operation where food is served or provided for the public with or without charge.” (Emphasis added.)
Note in particular the public establishments emphasized where the legislature would authorize the sale of liquor by the drink for consumption on the premises. We hold the petitioner’s writ of quo warranto shall be granted.
The respondent is prohibited from the issuance of any class B club licenses as designated in subsection (h)(3)(B) of L. 1978, ch. 186, § 3.