(dissenting).
This action is for a declaratory judgment brought under SDCL 21 — 24 seeking to declare invalid Section 5-7, as amended, of the Revised Ordinances of the City of Brookings.
I would hold that a municipality does not have the power and authority to prohibit the sale of low-point beer on Sunday under the current laws and statutes of the State of South Dakota. I would further hold that Section 5-7 of the Revised Ordinances of the City of Brookings, as amended, which prohibit the sale of low-point beer on Sunday, is in conflict with the current laws and statutes of South Dakota and is therefore invalid.
This is my rationale:
(1) There is no statute expressly prohibiting the sale of low-point beer on Sundays or any other day of the week.
(2) SDCL 35-3-2, which specifically allowed municipalities to enact such an ordinance as Brookings now has, was expressly repealed by our state legislature.
(3) SDCL 35 — 4-81 states that no alcoholic beverage can be sold on Sunday except low-point beer, which clearly implies that low-point beer can be sold on Sunday.
(4) The key language in SDCL 9-29-7, upon which the majority chiefly rests its decision, states that any regulation or prohibition of alcoholic beverages must be consistent with the provisions of Title 35. Obviously, in 1971, when the state legislature specifically repealed SDCL 35-3-2 and enacted SDCL 35-4-81 and SDCL 35-6-30 in its place, it was limiting state and municipal control over the sale of nonintoxicating low-point beer. SDCL 9-29-7, a general police power statute which was given birth by Chapter 209, Session Laws of 1941, does not thwart that change. The 1971 specific legislative intent is more germane than the 1941 general legislative intent.
(5) SDCL 35-3-7 expressly states that the sale of low-point beer is not subject to local option. If the reasoning of the City of Brookings were adopted, it would follow that various restrictions could be imposed on the sale of low-point beer by a municipality. Such is not the law in this state.
(6) The net effect of the present statutes is to treat low-point beer differently from all other alcoholic beverages.
*610(7) It is the construction of this state’s statutes, and the repeal thereof, which is controlling. South Dakota is not bound by outside jurisdictions with varying interpretations of their statutes.
Any powers granted to a municipality are to be strictly construed against the municipality and, if there be any ambiguity, the power should be denied to the municipality. As regards this general principle of law, this court stated:
“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 others [sic] 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. Any fair and reasonable doubt concerning the existence of the power, or any ambiguity in the statute upon which the assertion of the power rests, is to be resolved against the corporation and power denied.”
Ex parte McAlpine, 47 S.D. 472, 474-75, 199 N.W. 478, 479 (1924) (citation omitted).
If it can be reasonably argued that the state law permits the sale of low-point beer on Sunday, but that the Brookings municipal ordinance forbids it, then the ambiguity (which I do not concede exists) should be resolved against the City of Brookings.
I maintain that the position of the North Dakota Supreme Court is applicable to the question raised here. It stated:
The legislature may at any time it sees fit so to do withdraw the power it has granted to enact such ordinance or it may enact a general law in conflict with the provisions of an ordinance which has been enacted by the city under the former grant of power and in such case the provisions of the ordinance in conflict with the statute are superseded and rendered invalid.
State v. Gronna, 79 N.D. 673, 696, 59 N.W.2d 514, 530 (1953).
I therefore dissent, and would reverse the lower court requiring that the ordinance be declared invalid as it directly conflicts with state law.
I am hereby authorized to state that Chief Justice WOLLMAN joins in this dissent.