This court, consisting of five justices, heard and considered this cause. Four of the justices concurred in a written opinion prepared by one of their number, the effect of which is to hold that the complaint filed in the district court by the plaintiff Wiley sets forth sufficient facts to constitute a cause of action for which reason the demurrer to such complaint, interposed by the defendant city, should be overruled. When this is done the defendant city will be permitted to file an answer and to set *Page 63 forth therein any and all defenses that the city may have to such action.
The written opinion so prepared was signed by four of the justices and thereupon pronounced and filed as the decision of this court. The fifth justice did not concur and in a written opinion set forth his reasons for dissenting.
The defendant thereupon filed a petition for rehearing in the cause and, a majority of the justices concurring, this court made its order denying such petition. In the meantime, the author of the court's decision herein, no longer entertaining the views set forth by him in the opinion to which he and three of his associates had subscribed, has prepared a written explanation of his change in attitude. While the original opinion so written by him stands as the decision of the court herein, the justice may nevertheless file herewith his criticism and objections to the pronouncement of the court so made.
The case of McCarten v. Sanderson, 111 Mont. 407, 109 P.2d 1108, 132 A.L.R. 1229, is clearly not in point. However, the case of State ex rel. McCarten v. Harris, 112 Mont. 344, 115 P.2d 292, decided by this court on July 10, 1941, like the present case, involved the power of local authorities, in the absence of legislative authorization, to nullify a state liquor license duly issued by the Montana state liquor control board under particular legislative enactments which not only clearly show, but wherein the legislature has expressly declared it to be the policy of the state to place "and to insure the entire control of the sale of liquor in the Montana liquor control board." Laws 1937, c. 84, sec. 1.
This action is not concerned with the state beer licenses as it involves only a state liquor license. Likewise, in neither the instant case nor in the case of State ex rel. McCarten v. Harris,112 Mont. 344, 115 P.2d 292, supra, is there involved the specific question of the right of a city to limit the number of licenses that shall be issued for places operating within its boundaries.
There is here presented no question governed by the general *Page 64 and comprehensive statutes, sections 5039.2 and 5039.3, Revised Codes, authorizing cities generally to license businesses and occupations, which general statutes were enacted long prior to the special and specific legislative acts dealing particularly with the sale and the licensing of the sale of intoxicating liquor in this state, namely, Chapter 175, Laws of 1917; Chapter 105, Laws of 1933; Chapter 84, Laws of 1937; Chapter 221, Laws of 1939; and Chapter 163, Laws of 1941, as well as the 18th and 21st Amendments to the Federal Constitution.
In the first place Chapter 175, Laws of 1917, specifically[5] provides for the repeal after the 31st day of December, 1918, of all acts in conflict and "particularly all laws of this State and all ordinances of cities and towns relating to the issuance of liquor licenses." Thus did all the theretofore existing laws of this state and ordinances of the respective cities and towns thereof relating to the issuance of liquor licenses pass out and become a dead letter on December 31, 1918, and by special and specific legislation were the cities and towns divested of the power to license the sale of liquor under the general statutes, viz., sections 5039.2 and 5039.3, Revised Codes, supra.
In the next place the special statutes being later enactments[6] of the legislature relating to the liquor traffic and to the licensing of the sale of liquor, control the more general provisions of sections 5039.2 and 5039.3, Revised Codes, and will be regarded as an exception to or qualification of the prior general statutes. Carland v. Commissioners of Custer County,5 Mont. 579, 598, 6 P. 24; Reagan v. Boyd, 59 Mont. 453,197 P. 832; In re Stevenson's Estate, 87 Mont. 486, 289 P. 566; State ex rel. Ewald v. Certain Intoxicating Liquors, 71 Mont. 79, 84,227 P. 472. 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 and in particular with the licensing of retail liquor dealers of which the legislature has seen fit to *Page 65 place the unfettered, full, complete, and entire control in the Montana liquor control board which it created for such purpose.
This court held in the McCarten case, supra, and it now holds[7] in this case, that the legislature has delegated to the Montana liquor control board the control of the licensing of retail liquor dealers in this state and that the respective towns and cities of the state have not been granted the power to divest the Montana liquor control board of that control nor to nullify nor render void and useless the state liquor licenses duly issued by such board.
While the judicial system recognizes dissents and dissenting opinions to final decisions of the court, yet it does not recognize any such thing as a dissent or a dissenting opinion to a mere order of the court; however, the court has no objection to the expression of the foregoing statements in this particular instance without establishing a precedent therefor nor recognizing such procedure.
Mr. Chief Justice Johnson and Associate Justices Adair and Cheadle concur.
Rehearing denied December 19, 1945.