Under Chapter 84, Laws of 1937, it is declared as the policy of the state "to insure the entire control of the sale of liquor in the Montana liquor control board." Or as stated in the per curiam opinion on motion for rehearing in State ex rel. Wiley v. District Court, Mont., 164 P.2d 358, 365, with respect to the licensing of retail liquor dealers "the legislature has seen fit to place the unfettered, full, complete, and entire control in the Montana liquor control board which it created for such purpose."
Under section 9 of Chapter 84, Laws of 1937, no one is entitled to a liquor license unless such person has a beer license. Under the most recent decision of this court (Stephens v. City of Great Falls, Mont., 175 P.2d 408, 413), after holding that the city has no authority or control over the number of *Page 537 liquor licenses that may be issued in the city, the court said:
"A somewhat different situation obtains as to the Montana Beer Act, Chapter 106, Laws of 1933, construed and interpreted by this court in State ex rel. McIntire v. City Council of City of Libby,107 Mont. 216, 82 P.2d 587. In section 45 of the Montana Beer Act, now section 2815.44, Revised Codes of 1935, the legislature, after fixing the annual license fees to be paid to the state by those operating under the Act, provided: `And provided further, that nothing in this act contained shall in any manner be so construed as to prohibit or prevent cities and incorporated towns from enacting ordinances for the enforcement of this act and to license and regulate places of business where beer is sold, notwithstanding the fact that the persons conducting such places have obtained a license from the board, the only restriction hereby imposed being that such regulatory license so imposed by any city or town shall be reasonable and not in excess of the amount imposed by the state.'
"By virtue of the quoted provisions of section 45 of Chapter 106, Laws of 1933, section 2815.44, Revised Codes of 1935, the legislature has expressly granted to the cities and towns of this state the power to license places of business, within their limits, where beer is sold subject, of course, to the requirements that the ordinances providing therefor be not `inconsistent with the laws of the United States or the state' (sec. 4958, Rev. Codes of 1935); that they be reasonable and not in excess of the amount imposed by the state (sec. 45, Ch. 106, Laws of 1933) and that they do not have the effect of inhibiting the issuance of a license by the state liquor control board nor of nullifying the license issued by the board. State ex rel. Wiley v. District court, supra."
It was thus squarely held in that case that the city may limit the number of beer licenses within the city. Hence if the city may by ordinance limit the number of beer licenses within the city, then certainly the liquor control board is not acting arbitrarily or capriciously in recognizing the wishes of the city in that respect as expressed by a valid city ordinance. *Page 538 I do not agree that any of the prior decisions of this court sustain the conclusion reached by my associates.
The cases of McFatridge v. District Court, 113 Mont. 81,122 P.2d 834, McCarten v. Sanderson, 111 Mont. 407, 109 P.2d 1108, 132 A.L.R. 1229, and State ex rel McCarten v. Harris,112 Mont. 344, 115 P.2d 292, are not comparable to this because there the premises involved were situated outside of a city or town and the counties are not given authority to speak locally on the subject except by county option. Secs. 2815.53 to 2815.59 and secs. 2815.96 to 2815.103, Rev. Codes of 1935. Whereas, as above noted, cities have the authority to pass ordinances limiting the number of beer licenses within the city
Moreover, the cases relied upon had to do with local action which, if sustained, had the effect of nullifying a license issued by the state board. This was made clear in the per curiam opinion on motion for rehearing in the case of State ex rel. Wiley v. District Court, supra, where it was said: "Again it is quite clear that neither the decision in the instant case nor that in the McCarten case, supra, has any effect whatever upon zoning ordinances or matters other than the power of towns and cities to interfere with the control by the Montana liquor control board of the liquor traffic in this state * * *." Here the state board has not issued a license and declined to do so and hence the city ordinance does not interfere with the control of the liquor board or in any wise affect a license issued by the state board. The board looks at the question realistically. It knows that the local authorities must police the places where beer or liquor is sold. It knows and the evidence shows that an increase in the number of places where beer or liquor is sold increases the number of places requiring police surveillance. I think the board should be commended in its action in yielding to the wishes of the local authorities in restricting the number of establishments where beer and liquor are sold to the number that can be adequately policed by them. By doing this it is not delegating authority to the city. The legislature has already *Page 539 delegated that authority to the city as to beer licenses (Stephens v. City of Great Falls, supra), and without a beer license, no liquor license can be issued, sec. 9, Ch. 84, Laws of 1937. Nor is it declaring a legislative policy by regulation No. 49. That regulation declares the policy of the board and in effect it states that when a city or town exercises the power given to it by the legislature to restrict the number of places where beer may be sold within the city, the board will not force upon such city or town a greater number of beer or liquor establishments.
I think the liquor control board properly exercised the discretion vested by law in it by declining to force upon the city more beer or liquor establishments than the city authorities felt they could adequately police. I think it is fallacious to hold that all measure of local control has been removed by the legislature.
If the conclusion announced by the majority is correct, then the state board would not be justified in rejecting an application when the applicant is qualified and the premises are suitable though situated in a residential part of the city where by local zoning ordinances such places are closed to the liquor traffic. I think the state board was justified in adopting regulation No. 49 and in denying the application. I think the judgment of the lower court should be reversed and the cause remanded with directions to uphold the action of the board.