(dissenting)..
[¶ 26.] I respectfully dissent. I would reverse the lower court on Issue 2. I would hold the trial court erred when it granted partial summary judgment to 01-esens, holding City’s operation of food service at the municipal bar was an ultra vires act.
[¶27.] An express grant of authority from the legislature “includes those incidental or implied powers that are necessary to enable a municipality to perform the function authorized.” City of Rapid City v. Rensch, 77 S.D. 242, 246, 90 N.W.2d 380, 383 (1958) (citation omitted). A municipality is vested with discretion as to how it exercises specific powers conferred upon it by the legislature, as long as the methods employed are not limited by either, the state constitution or the legislature itself. Robbins v. Rapid City, 71 S.D. 171, 176, 23 N.W.2d 144, 147 (1946) (citation omitted). Municipalities are precluded from engaging in ultra vires acts for which there is no antecedent legislative authority. Ericksen v. City of Sioux Falls, 70 S.D. 40, 53, 14 N.W.2d 89, 95 (1944).
[¶ 28.] “Our Court has a history of not interfering with municipal governments unless their actions are palpably arbitrary, unreasonable,, or beyond their authority.” City of Marion v. Schoenwald, 2001 SD 95, ¶ 7, 631 N.W.2d 213, 216 (citations omitted). We have on several occasions upheld a municipality’s incidental acts exercised in the course of its express authority. See Snow Land, Inc. v. City of Brookings, 282 N.W.2d 607, 608 (S.D.1979) (holding municipality’s express authority to prohibit all Sunday liquor sales under SDCL 35-6-30 included implied authority to also ban low-point beer Sunday sales, despite state’s proscription under SDCL 35-4-81 which prohibited sales of low-point beer sales on Sunday between certain hours); City of Vermillion v. Hugener, 75 S.D. 106, 109, 59 N.W.2d 732, 734 (1953) (holding municipality had implied authority to enter into a long term contract to establish a golf course although state statute did not specifically grant authority to establish golf courses as' public parks). Actions taken under a municipality’s implied or incidental authority will be upheld when the actions have a basis in express authority and are reasonable, further the general law, and are not in conflict with the general law. Snow Land, Inc., 282 N.W.2d at 608.
[¶ 29.] City’s express authority to operate the municipal bar is granted under SDCL 9-29-6, which provides: “Every municipality shall have powers to engage in retailing alcoholic beverages as provided in Title 35.” The issue of incidental food *331service conducted at a municipal retail alcoholic beverage operation is not addressed within the statute, or the statutory scheme. Lacking expressly defined operational methods, incidental and implied acts necessary to the operation of a municipal bar are permitted, as long as those acts are reasonable and do not conflict with the general law. See Snow Land, Inc., 282 N.W.2d at 608; Hugener, 75 S.D. at 109, 59 N.W.2d at 734.
[¶ 30.] Today the Court bases its decision on a nineteenth century rule of law known as “Dillon’s Rule.” At one time earlier in its history, South Dakota did follow such a rule.
It is well settled that a municipal corporation has only such powers as are clearly and unmistakably granted to it by its charter or by other acts of the Legislature, and consequently can exercise no powers not expressly granted to it, except those which are necessarily implied or incident to the powers expressly granted and those which are indispensable to the declared objects and purposes of the corporation.
Ex parte McAlpine, 47 S.D. 472, 474-75, 199 N.W. 478, 479 (1924). See also Rensch, 77 S.D. 242, 90 N.W.2d 380; Ericksen, 70 S.D. 40, 14 N.W.2d at 89. However in Snow Land this Court specifically rejected this ancient doctrine. 282 N.W.2d 607. Snow Land is factually similar in that it deals with the authority of a municipality to regulate the sale of alcoholic beverages. The Court fails to follow Snow Land and does not say why it opts to return South Dakota to the mid-nineteenth century.
[¶ 31.] The record indicates City began serving a limited food menu in 1979 in conjunction with its bar operation. City’s municipal bar food service was not advertised to the general public, or to patrons inside the bar. The menu was made available to bar patrons only while on site.
[¶ 32.] Menu items such as hamburgers, french fries, chislic, and other grill items were added to the bar menu over time. A modern grill was installed in 1995 as part of a capital project designed to bring the bar into compliance with health and safety codes. When soup was added to the menu, Olesens complained to City and soup service was immediately discontinued. No complaint about the grill service was ever offered by Olesens prior to the commencement of their law suit. ' A full service, sit down restaurant menu was never offered by City.
[¶ 33.] City offered testimony at trial that bar revenues from on-sale beér and liquor and off-sale beer and liquor were insufficient in and of themselves to keep the bar in operation. The bar was not financially viable without the food service revenue. Additionally, City noted that the consumption of food with alcohol slows the absorption rate of alcohol into the blood stream as support for its efforts to provide bar patrons with limited food service while consuming alcohol.7
*332[¶ 34.] The effect of this Court’s decision is devastating to the numerous small towns in this state that have only a municipal bar as a source of food as well as liquor. Prior to 1998, the town of Hurley had two eating establishments, the one owned by Olesens and the other run by the City. Olesens shut down in 1998 and this decision effectively shuts down the City’s food service. In light of this decision, what other small town will dare to offer food to the public at its municipal liquor establishment and open up its public treasury in the process? I doubt the’legislature intended such a result when it contemplated the authority it would grant to municipalities.8
[¶ 35.] All-these factors taken together indicate the food service operation was merely incidental to the bar operation as a revenue enhancement and bar patron satisfaction and safety measure. City’s incidental food service was properly conducted under City’s express authority to operate a municipal bar.9
[¶ 36.] The Court’s assertion that City’s express power to sell alcohol by the glass does not imply a necessary power to sell food by the plateful is not a correct statement of the law or the facts of this case. City’s express power to sell alcohol by the glass confers upon it the implied and incidental powers to do what is necessary to operate the municipal bar within reasonable limits, and those explicitly imposed by the legislature and the state constitution. City’s limited food service oper*333ation was an exercise of incidental powers that was not in conflict with any state statute or the state Constitution itself. As such, the food service operation was not an ultra vires act.10 The trial court should be reversed.
. Alcohol travels to the stomach and then to the small intestine where it is absorbed into the bloodstream. Alcohol absorbed into the bloodstream eventually reaches the brain and central nervous system, at which point the characteristic signs of alcohol intoxication begin to show. The rate of absorption depends on a variety of factors, especially the presence and type of food in an individual’s stomach at the time alcohol is ingested. Foods with a higher fat content, such as a hamburger or fried foods, take longer for the stomach to digest, and decrease the alcohol absorption rate. Jennifer L. Pariser, Note: In Vino Veritas: The Truth About Blood Alcohol Presumptions in State Drunk Driving Law, 64 NYUL-Rev 141, 151 (1989) (citing R. Erwin, Defense of Drunk Driving Cases Criminal/Civil § 15.04[l][b][i] at 15 (3d ed.1988); Bayly & McCallum, Some Aspects of Alcohol in Body *332Fluids. Part II: The Change in Blood Alcohol Concentration Following Alcohol Consumption, 2 Med. J. Austl. 172, 173 (1959); Fitzgerald & Hume, The Single Chemical Test for Intoxication: A Challenge to Admissibility, 66 Mass., L.Rev.-'23, 29 (1981); Holt, Stewart, Adam & Heading, Alcohol Absorption, Gastric Emptying and a Breathalyzer, 9 Brit. J. Clinical Pharmacology 205, 207 (1980); Sedman, Wilkinson, Sakmar, Weidler & Wagner, Food Effects' on Absorption and Metabolism óf Alcohol, 37 J. Stud. Alcohol 1197, 1197 (1976)).
. As to larger municipalities, what of the fate of municipal swimming pools, baseball and soccer complexes, ánd municipal golf courses that sell food?
. Even under an application of the 19th Century Dillon's Rule, the City still possessed the legal authority to sell food as “necessarily implied or incident to the powers expressly granted and those which are indispensable to the declared objects and purposes of the [municipality].” Ex parte McAlpine, 47 S.D. at 475, 199 N.W. at 479. SDCL 35-4-2.1 deals with approval by a municipality for a license to engage in on-sale liquor sales on Sundays. To legally sell liquor by the drink on Sunday, the facility must have “the serving of food if the licensee has facilities for the serving of prepared meals from a fixed restaurant with the simultaneous seating capacity of at least ... twenty five patrons.” See also SDCL 35-4-2.2 which requires the Sunday sale of wine be by a "restaurant.” The statute goes on to define a "restaurant” as:
a room regularly and in a bona fide manner used and kept open for the serving of meals to guests for compensation which has suit.able table accommodations for at least fifty guests at one and the same time, and a connected kitchen containing conveniences for cooking sufficient to provide meals in a bona fide manner for fifty guests at one and the same time.
These statutes are a clear indication that the Legislature anticipated that the sale of food by a full service menu was clearly incidental to the sale of liquor by the drink on Sundays. In fact it was not only incidental,, it was mandatory. If incidental on Sundays, no logic exists to say the same rationale does not apply the other six days of the week..
. Mrs. Olesen acknowledged the Hurley Bar should be permitted to serve "bar food,” a term she defined to mean "munchies and chislic and things.” Are significant issues such as sovereign immunity and legislative grants of authority to municipal corporations to be hinged on whether a frozen pizza constitutes a "munchie?”