(dissenting) — The sole question for our determination is whether the superior court had jurisdiction to review the action of the Washington State Liquor Control Board at the time the instant case arose. In support of his contention that the superior court had jurisdiction, relator urges that: (1) the Board’s action was so grossly unfair, arbitrary and capricious that he is entitled to judicial relief, and (2) review is provided by the Administrative Procedures Act. RCW 34.04.
The original Washington State Liquor Act provided that the Board could suspend or cancel a license only “after a hearing had and assigning a reason therefor.” Laws of 1933, Ex. Ses., ch. 62, § 27 (2). I believe it significant and indicative of legislative intent that the 1935 legislature removed from the statute the necessity of a hearing. Laws of 1935, ch. 174, § 3, p. 610.
The crux of our problem is the interpretation and application of RCW 66.08.150, which was originally adopted in 1933. Laws of 1933, Ex. Ses., ch. 62, § 62, p. 201. The statute provides:
Save as in this act otherwise provided the action, order or decision of the hoard as to any permit or license shall be final and shall not be reviewed or restrained by injunction, prohibition or other process or proceeding in any court or he removed hy certiorari or otherwise into any court. RCW 66.08.150. (Italics mine.)
It appears to be the manifest legislative intent that the Liquor Control Board is vested with the sole and exclusive authority, within standards set by statute,"to issue, deny, transfer, suspend or cancel licenses.
Relator would have us burke RCW 66.08.150 after it has stood as an unambiguous declaration of legislative policy for *145more than 30 years.1 The majority opinion ignores the statute, which states in unequivocal terms that there is no jurisdiction to hear any case involving the Board’s decision as to any liquor license. The language could not be plainer. The effect of the majority opinion is to hold the statute unconstitutional.
Although the question involved is different, the rationale of the state’s control of the sale of alcoholic beverages is recognized and well expressed in Randles v. State Liquor Control Bd., 33 Wn.2d 688, 694, 206 P.2d 1209, 9 A.L.R.2d 531, (1949), as follows:
The state, under its police power, may prohibit entirely the carrying on of such business and may regulate it in such a manner as may be deemed advisable. The times when, the places where, and the persons to whom it may be sold, may be determined by the state. The privilege of dispensing intoxicating liquor may be given to some and denied to others. In considering claims of discrimination and the denial of alleged rights, the distinction between a lawful business which a citizen has the right to engage in and one in which he may engage only as a matter of grace of the state must be constantly in mind.
- It is more than a coincidence that neither party has been able to cite us an opinion of this court in which judicial review of an action of the Liquor Control Board has been recognized. I know of none.2 The absence of such an opinion is indicative of the general acceptance of the rule, expressed in RCW 66.08.150, that the decisions of the Board are final and not subject to judicial review. The purpose is to avoid substituting judicial judgment for administrative discretion exercised under the police power.
The majority places undue emphasis on the case of State *146ex rel. Cosmopolis Consol. School Dist. v. Bruno, 59 Wn.2d 366, 367 P.2d 995 (1962). We held that the trial court had jurisdiction to hear that case even though the legislature had not specifically provided for such jurisdiction. The majority in the instant case now holds that even when the legislature provides that there shall be no judicial review (RCW 66.08.150), this court has jurisdiction. This extension of the Cosmopolis case is unwarranted and the factual difference makes that case inapposite.
If the rule is to be eliminated (absent a determination of unconstitutionality, see note 1), and state policy changed, it is not the province of the court, but the province of the legislature to change the law.
Has the legislature done so? This question presents relator’s second contention — that the Administrative Procedures Act requires review of the Board’s actions.
Originally, the Liquor Control Board was specifically exempted from the operation of the Administrative Procedures Act. Laws of 1959, ch. 234, § 15, p. 1088. (Codified as RCW 34.04.150.)
Laws of 1963, ch. 237 (RCW 34.04.150), is entitled:
An Act relating to administrative procedure of state agencies; including the liquor control hoard within the scope of the administrative procedures act; and amending section 15, chapter 234, Laws of 1959 and RCW 34.04.150. (Italics mine.)
The 1963 amendment of Laws of 1959, ch. 234, § 15 removing the Liquor Control Board from the exclusionary provision of the Administrative Procedures Act became effective June 13, 1963.
All the Board’s actions on relator’s application for relocation of his tavern occurred prior to the effective date of the amendment of RCW 34.04.150 except the disposition of his second application which was denied July 31, 1963.
Further, § 17 of the Administrative Procedures Act (RCW 34.04.910) provides:
All acts or parts of acts which are inconsistent with the provisions of this chapter are hereby repealed, hut such repeal shall not affect pending proceedings. RCW 34.04-.910 (Italics mine.)
*147Relator’s application was a “pending proceeding” at the time RCW 34.04.150, as amended, became effective June 13, 1963. Assuming, arguendo, that the omission of the Liquor Control Board from the exclusionary provision of the Administrative Procedures Act effected a repeal by implication of RCW 66.08.150 (quoted supra), a question that need not be decided in the instant case, “ . . . such repeal shall not affect pending proceedings”; hence, relator gained nothing by the adoption of Laws of 1963, ch. 237.
For the reasons stated, I would affirm the judgment of the trial court.
Hill and Donworth, JJ., concur with Weaver, J.
Relator does not challenge the constitutionality of RCW 66.08.150, and RCW 66.24.010(3). The question is presented in the brief of amicus curiae, but, since it was not presented to the trial court, we cannot consider it on appeal. Long v. Odell, 60 Wn.2d 151, 372 P.2d 548 (1962), and cases cited therein.
I am aware of State ex rel. Stone v. Wright, No. 29468, in this court. An application for writ of certiorari to review the trial court’s refusal to entertain a review of the Board’s cancellation of a liquor license was denied without opinion.