(dissenting).
I think the judgment of the district court should be affirmed.
The question presented is one of statutory construction. The majority opinion on this point is double barreled. It holds, first, *155that the city never had the authority or power to pass an ordinance prohibiting the driving of an automobile on its streets by one under the influence of intoxicating liquor, and, second, if it ever had the power it had been taken away.
I concede that if either of these propositions is sound then the conclusion reached by my associates is correct. In my opinion, however, the city does have that power and it had not been taken away from the city at the time defendant is alleged to have committed the offense and at the time he was convicted.
Section 11-901 gives the city council the power to “make and pass all by-laws, ordinances, orders, and resolutions, not repugnant to the constitution of the United States or of the state of Montana, or of the provisions of this title, necessary for the government or management of the affairs of a city or town, for the execution of the powers vested in the body corporate, and for carrying into effect the provisions of this title.”
And section 11-911 gives the city council power to “regulate and prohibit traffic and sales upon the streets, sidewalks, and public grounds.” And under section 11-1002 power is given “to regulate motor vehicles and their speed within the limits of such city or town, and to prescribe and enforce fines and penalties for violation of such regulations.” And section 32-1101 in part provides that “cities and towns may, by ordinance, regulate speed and traffic upon the streets within the incorporated limits.” Certainly the power to regulate motor vehicles and traffic upon tbe streets carries the power to prohibit automobiles being driven on the streets by persons under the influence of intoxicating liquor.
This court in speaking of what is now section 11-901 in City of Helena v. Kent, 32 Mont. 279, 80 Pac. 258, 259, said: “In effect, these provisions state what is usually determined the ‘general welfare clause,’ and under such clause it is well established that, in the absence of statutory prohibition, the city, in the exercise of its police power, may ‘establish all suitable ordinances for administering the government of the city, the maintenance of peace and order, the preservation of the health of the inhabi*156tants, and the convenient transaction of business within its limits, and for the performance of the general duties required by law of municipal corporations. ’ McQuillin, Municipal Ordinances, section 434.” Section 11-901 deals directly with the health and general welfare of the people of the municipality. Salt Lake City v. Kusse, 97 Utah 97, 85 Pac. (2d) 802.
In the annotation in 147 A.L.R. 566, the author states: “As shown in the cases set out below, the fact that the state has legislated upon or penalized the offense of operating a motor vehicle while under the influence of intoxicating liquor will not necessarily preclude a municipality from enacting valid ordinances punishing the identical offense, particularly where, as in some jurisdictions, municipalities are expressly authorized by statute or charter to make rules and regulations affecting motor vehicles, or to make and enforce reasonable traffic regulations; however, in some cases such an ordinance has been held invalid as in.conflict with the prevailing statutes.” And see to the same effect, State ex rel. Coffin v. McCall, 58 N.M. 534, 273 Pac. (2d) 642; Mares v. Kool, 51 N.M. 36, 177 Pac. (2d) 532; State v. Poynter, 70 Idaho 438, 220 Pac. (2d) 386.
There is no valid objection to legislation by the city and state on the same subject. State ex rel. Brooks v. Cook, 84 Mont. 478, 276 Pac. 958. The rule is well settled that the fact the state legislates on a given field does not deprive the city of power to deal with the same subject matter by ordinance. 62 C.J.S., Municipal Corporations, section 143, page 286. Under-such circumstances each offense is separate and each is committed against a different law and against a different sovereign. 15 Am. Jur., Criminal Law, section 398, page 71; and see cases cited in the annotation in 21 Ann. Cases 67.
But my associates hold that the right of the city to enact an ordinance prohibiting the driving of an automobile on the city streets while under the influence of intoxicating liquor was taken away when the state undertook to legislate in this field and particularly since the state statutes expressly cover a situation whether within or without a. municipality. This is not *157so as many of the above cited cases hold. I call attention particularly to the case of Salt Lake City v. Kusse, supra. In that case two of the justices (only four justices participated in the case) distinguished most of the cases relied on in the majority opinion herein as not being applicable to statutes such as we had at the time of the acts herein involved. The cases generally hold that a municipality may legislate upon the subject of operating a motor vehicle while under the influence of intoxicating liquor even though the state has legislated on the same subject. State v. Poynter, supra; State ex rel. Coffin v. McCall, supra; Mares v. Kool, supra; Dane County v. Bloomfield, 267 Wis 193, 64 N.W. (2d) 829; State v. Hughes, 182 Minn. 144, 233 N.W. 874; Kistler v. City of Warren, 58 Ohio App. 531, 16 N.E. (2d) 948.
In passing I call attention to the fact that the rule declared in State v. Mandehr, 168 Minn. 139, 209 N.W. 750, and quoted from extensively in the majority opinion is no longer the rule in Minnesota, as appears from State v. Hughes, supra.
The question resolves itself into that of whether the state has “appropriated the field” “to the exclusion of others” as in the case of Clayton v. State, 38 Ariz. 135, 397 Pac. 1037, 300 Pac. 1010, so strongly relied on in the majority opinion, as pointed out by two of the justices in Salt Lake City v. Kusse, supra. I think it did not do so and that the legislature itself in 1947 recognized that it had not done so, for in section 31-145 it states in part: “Every court having jurisdiction over offenses committed under this act, or any other act of this state or municipal ordinance regulating the operation of motor vehicles on highways, shall forward to the board a record of the conviction of any person in said court for a violation of any said laws other than regulations governing standing or parking, and may recommend the suspension of the operator’s or chauffeur’s license” of the person so convicted. Italics supplied. And section 31-146 provides in part that the board (meaning the highway patrol board) “shall forthwith revoke the license of any operator or chauffeur upon receiving a record of such *158* * * conviction of any of the following offenses * * 2. Driving a motor vehicle while under the influence of intoxicating liquor or a narcotic drug.”
These sections constitute a plain legislative declaration that prosecutions under municipal ordinances regulating the operation of motor vehicles on highways and particularly for driving while under the influence of intoxicating liquor, are permissible. Such was the law at the time defendant was alleged to have violated the ordinance and at the time he was convicted.
I point out that since then the legislature has passed Chapter 263, Laws of 1955, which seemingly takes from the city all powers except certain specifically enumerated ones. But that statute has no application here. Also there is here involved no question of double jeopardy. This is the first, and, as far as we know, the only prosecution directed against defendant.
I think the district court was right and that the judgment should be affirmed.