
    No. 50,263
    (586 P.2d 276)
    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. 
    
    Opinion filed November 13, 1978.
    
      John R. Martin, first deputy attorney general, argued the cause and Curt T. Schneider, attorney general, was with him on the brief for the petitioner.
    
      Benjamin J. Neill, of department of revenue, argued the cause, and Alan F. Alderson, of department of revenue, were with him on the brief for the respondent.
    
      Charles N. Henson, of Eidson, Lewis, Porter & Haynes, argued the cause and Richard F. Hayse, of the same firm, was with him on the brief for the intervenor.
    
      Paul Arabia, of Wichita, was on the brief amici curiae, for The Portobello Club, Inc., and Down Home, Inc.
   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 question presented here 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.

Due to the urgency of the matter and the public interest involved, this action was given a preferential setting in our court. The case has been briefed thoroughly by the parties and amici curiae and was argued on October 27, 1978.

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.

The respondent is prohibited from the issuance of any class B club license designated in subsection (b)(3)(B) of L. 1978, ch. 186, §3.

This brief opinion announcing the decision of the court will be supplemented by a formal opinion to be filed when it is prepared.

Prager, Miller and Holmes, JJ., dissenting.  