I concur in the result stated in the foregoing opinion but I think the discussion of the relative powers of city and state in fixing the number of beer and liquor licensees within a given city is not necessary to the decision of the legal point involved. I therefore express no opinion of the state of the law on that subject further than what I stated in my dissenting opinion on the petition for rehearing in the case of State ex rel. Wiley v. District Court, Mont., 164 P.2d 358, commencing on page 363, which the majority of the court assumed to suggest that I was permitted to file only through their grace.
In that case I took the view that the case of State ex rel. McIntire v. City Council of City of Libby, 107 Mont. 216, 82 P.2d 587 squarely held that the city may limit the number of licenses issued within the city and that "the statutory law is exactly the same today as it was when the Libby case was decided" and hence that the city still has that right.
It seems to me too that this power is but a paper right if it can be frustrated by action of the state board in issuing liquor licenses as it pleases.
Let it be noted that under section 9 of Chapter 84, Laws of 1937, it is provided that, "no person, club, or fraternal organization shall be entitled to a license under this act unless *Page 383 such person, club, or fraternal organization shall have a beer license issued under the laws of Montana."
Either the city may or it may not limit and restrict the number of beer licensees in the city. If it has the power to do so then it may do so without restriction or limitation. If its right is subject to restrictions or limitations imposed by the state board or someone else, then the right does not exist in the city but reposes elsewhere. I think it rests in the city as held in the Libby case.
I see no purpose in treating of this question in this case since the only point before us is what effect does the petition for referendum have upon ordinances 931 and 932.
I concur in the result reached on that point as to ordinance No. 931 but I think the same result applies to ordinance No. 932.
Mr. Justice Morris concurs in the foregoing views of Mr. Justice Angstman.