The opinion
Clark, C. J.,
dissenting: When the 180 members of this club made each his deposit for the purchase of liquor it went into the general fund of the club, and the money became the property of the club. In just the same way, when 'the depositors make general deposits in a bank, the money becomes the property of the bank, and the depositors become merely creditors of the bank to the amount of their deposits, for which they may draw. So when the defendant club received the liquors, purchased with the money of the depositors, and placed it, not on special deposit, but mingled together, such liquor became the property of the club. It is true, the lager-beer was not mingled with the champagne and the Avine Avas not mixed with the Avhiskey, but all the liquors of each kind were mingled together. That is, each was received on general deposit, not on special deposit. When an order for beer was filled, it is agreed that it *190 was not filled by delivering to a member the identical beer which he had ordered, but it was filled out of the general stock of that particular brand or drink.
It is found as a fact that “When an order is given by a member of the club, the money for the order is given to the manager of the club, and the manager turns the money over to the treasurer of the club. The treasurer of the club has a banking account, in which he banks the money received by him and sends the order on the liquor house, with the check of the club for the amount received from the member.” It is true, it is further found that “The liquor is sent to the member in care of the club.” But the true nature of the transaction is found by the next paragraph: “At the time the beer was received by the club (if the order was for beer), the manager would give the member a book, with the same number on it as was on the order blank and on the stub, and if the order was for 12 dozen bottles, the book would contain 12 dozen separate coupons. The manager of the club kept and keeps a system of refrigerators, in which all the beers are mixed with the beer of other members of the chub. If the club member wants a bottle of beer for himself and a friend, he hands the book to the steward of the club, who would tear out as many coupons as bottles of beer ordered, and deliver to such member the number of such bottles of beer ordered, getting them out of the refrigerators where it was mixed with the other beer of the other members of the club.”
Looking through all disguises, as the law must do in all cases, the true nature of this transaction is simply this: the members of this club pay in (besides the $10 initiation fee and $24 yearly dues) whatever sum each thinks proper to furnish funds with which to buy beer. Such fund becomes the property of the club, just as in case of general deposits in the bank. The club then sends its check for the amount of beer each member orders.' It is true, the beer is sent in the name of each member, but to the care of the club. It is received by the club, and not segregated and placed on special deposit for each member, but it is all mingled together. The beer thereupon becomes the property of the club, just as general deposits in the bank. Thereupon, *191 each member can check on the club from time to time and receive, not his own particular beer, but the quantity of beer he desires, for which he pays with his coupons, just exactly as a depositor checks money out of a bank. The bank owes the depositor so much money, and when it pays his check it does so with its own money. So, here, each member of the club has a general deposit entitling him to so many dollars’ worth of beer. He has paid for it beforehand with the money he has deposited, and when he orders beer he cashes in his “coupons” exactly as a gambler cashes in his “chips.” It cannot be said that he does not pay the club for the beer because he pays for it with a coupon. The coupons represent the cash he has on deposit, and when he pays for the beer with a coupon the' coupon delivered up for that amount diminishes the cash credit which he has. The beer which he receives belongs to the club. It is true that a certain quantity of beer was shipped in his name, but it was shipped in the care of the club, received by it, and mixed with its other goods, and became the club’s property, subject to draft. The use of the member’s name as consignee was merely colora-ble, not changing the nature of the transaction, and at most it was like a check payable to a depositor, which he indorses and deposits in a bank. The bank places the proceeds to the credit of the depositor, but it becomes the property of the bank, which simply owes the depositor a debt payable in money, as here the club owes the member so many dollars’ worth of beer, evidenced by coupons with which he can buy so much beer from time to time or, if he chooses, get the difference in money.
This is not the case of four farmers depositing four pigs. That is a special deposit, or bailment, and each man gets back his identical pig. Here, the member gets so many dollars’ worth of coupons which he pays for beer from time to time, as he calls for it. He does not get his identical beer. He has none there. He gets the beer of the club. If the beer is stolen, it must be charged in a bill of indictment as the property of the club, just as when money is stolen from a bank it must be charged as the property of the bank, and not of the depositors. If an execution were issued against the club, it could be levied upon the *192 beer, as its property. It would make no difference that there were outstanding coupons of the club wbicb it had promised to receive when tendered in payment for beer.
Looking at the transaction as it really is, this is simply a Cooperative Bar-room. Instead of the barkeeper getting his pay out of the profits of his sales, he is paid a salary by the club. Instead of the members going up to the bar and laying down their cash and receiving liquor in exchange, they simply raise the sum necessary to keep up a stock of liquors, each man paying in advance what amount he thinks proper, the liquor being shipped in his name, but received by the club and mingled with the common stock. Instead of each customer paying cash at the time, he has simply paid in advance, receiving therefor coupons which “he cashes in” for liquor. It is not necessary that to make a sale .there shall be any profit. Many sales are made at a loss. The sale is made when the club delivers the quantity of liquor ordered and receives in exchange its coupons which represent that amount of the indebtedness it owes to the member by reason of his cash deposit. The coupons represent an indebtedness of tho club, and therefore are of value. This strongly resembles the laundry “system,” in which one buys a book of coupons and pays for his washing (instead of his drinks) by tearing coupons out of the book. ■
There is every element of a sale. The defendant is therefore guilty on the second count for retailing spirituous liquors. It is also guilty on the third count, for it has “kept on hand for sale more than 2% gallons of spirituous liquors contrary to law.” It is even guilty on the first count, for its whole system, with its sumptuous quarters and its refrigerating system of keeping liquors on ice, is a standing bid or solicitation to those who have the requisite means and gentility to apply for liquors which cannot otherwise be obtained elsewhere, always cool and enticing, without risk. That the liquor belongs to the club is further shown by the fact that the icing, the refrigerating, the service, and the manager are all paid for out of the general funds of the club, that stores, ices, and dispenses the liquor.
The membership of this club is doubtless exclusive. They are gentlemen of means and position. They wish to obtain “a *193 cold bottle and a bot bird” without the vulgarity of violating the law through the medium of a blind tiger. Besides, blind tigers are not furnished with refrigerators. It would give too much publicity. Among the members of this club are many gentlemen, doubtless, who are personal friends of each and every member of this Court. It seems a hardship to interfere with their pleasant arrangement to obtain cool drinks, on tap. There are many other features of the club than this, and to them no objections are raised; but their “cooperative bar-room Annex” is illegal. These gentlemen, however, are not on trial. What is on trial is the “system” which some ingenious and brilliant member of the bar (legal) has devised to “get by the judge.” Somewhat similar “systems” were held invalid in S. v. Neis, 108 N. C., 787 , and S. v. Lockyear, 95 N. C., 633 . The author of this system has endeavored to avoid the features which were pointed out as most flagrant in those cases. But no device, however ingenious, can conceal the true nature of the transaction, which makes the manager of a social club a barkeeper on wages and which exchanges drinks or bottles against coupons which have been issued to members as evidence of a cash deposit.
Much has been said against prohibition as an unwarranted interference with the personal liberty of the citizen. And much has-been said in favor of the duty of the State to repress the sale of liquor as a fruitful cause of drunkenness and crime. If so, it is none the less dangerous that the appetite for liquor is acquired, or maintained, in sumptuous club-houses and among respectable and wealthy men, who obtain their liquor duly cooled and handsomely served. Indeed, many young men will acquire the habit there who would not enter the purlieus of a corner groggery. Whatever the arguments for or against prohibition, the Court has no concern with them. The prohibition law was passed by'the Legislature, representing the people. Having some doubt, possibly, as to their having truly expressed the will of their constituents, they sent the matter to the ballot box, by a Referendum, which, perhaps, should always be done in case of doubt, if the matter is of sufficient importance. ■ On such ref *194 erendum tbe people of this State settled tbe matter by a vote of 44,000 majority. Tbe public policy thus declared should be enforced against all alike, without discrimination of exemption. If tbe “system” here invoked is valid, any number of men can, chip in and buy a stock of liquors, issue coupons receivable as cash, in payment of drinks, and appoint one of their number “dealer,” and settle up every now and then by comparing cash paid in and liquor consumed by each. The case is stronger against this defendant, for it is incorporated — a distinct entity.
The French have a maxim, "noblesse oblige ” which means that those in comfortable circumstances and possessed of means should set the example of obedience to the laws.
Devices to evade the law have been numerous and many of them ingenious. In S. v. Winner, 153 N. C., 602 , at this term, from Wilmington, the defendant bought some small article at a store, and as he went out an unseen hand from behind a curtain handed him a drink. The jury and judge below properly held that this “scheme” would not avail. The counsel for this eminently respectable club, whose members merely seek to get their iced drinks without being termed lawbreakers, style this plan a “system.” With the advent of prohibition numerous “systems” for the benefit of social clubs have been from time to time presented to the courts in different States. In one of the most recent of these, Manning v. Canon City, from Colorado, 23 L. R. A. (N. S.), 192, it was held: “The distribution of liquors kept by an unincorporated club to members who pay therefor sums which are used to replenish the supply of liquor, or to defray the expenses of the club, is a sale within the meaning of the prohibition law.” In that case the Court, holding invalid a “system” very similar to that used here, called attention to the fact that when Prohibition was new the decisions of the courts, rendered by judges brought up under the old system, went very far towards exempting clubs of social respectability, the courts being often astute to find reasons therefor; but that now there has been a steady trend of the courts in the other direction, and the disposition is to enforce the law without discrimination or excuse. Hence many of the older cases are not authority. The cases cited by the Court, and the annotations to that ease, sus *195 tain this observation. To the same purport is Maine v. Kapickso, 23 L. R. A. (N. S.), 737. In S. v. Minn. Club, 20 L. R. A. (N. S.), 1102, tbe Supreme Court of Minnesota beld: “Tbe distribution of intoxicating liquors in less quantities tban 5 gallons by a soeial club to its members, for a consideration, tbougb without profit, constitutes a ‘sale,’ and is prohibited.” In this State we need only refer to S. v. Neis, 108 N. C., 787 , and S. v. Lockyear, 95 N. C., 635 , for instances bolding invalid other “systems” offered by social clubs.
A law ought to be construed in its spirit. No one can doubt that if, when tbe prohibition law was framed, it bad been proposed to exempt social clubs, who could hire their barkeeper on wages, and pay cash in advance for their liquor, to be retailed to their members and friends, as is tbe case here, tbe proposition would have been voted down. A leading prohibitionist, who was found imbibing at a soeial club, was asked if be did not favor prohibition. He replied that be did — “for poor white folks and niggers.” Tbis is exactly what our Prohibition law amounts to, if it permits such acts as tbe defendant has been convicted of.
It must be remembered that tbe last General Assembly, Laws 1909, cb. 438, sec. 64, provided: “No social club for tbe dispensing of liquors shall hereafter be permitted or chartered.” Tbe presentment by tbe grand jury charged that tbe defendant had a United States liquor license; but that feature is not referred to in tbe “facts agreed.”
Tbe well-known expression, “equal rights to all and special privileges to none,” is not a figure of rhetoric, but tbe truest expression of tbe American sentiment. If tbe law exempt liquor selling by social clubs, however respectable, by devices, however ingenious, it should permit it as to all others and without device. If a bole has been dug under tbe fence, tbe bole should be stopped or tbe fence torn down.