I dissent. The issuance of a retail liquor license is an exercise of a police power of the state. Johnson v. City of Great Falls, 38 Mont. 369, 99 P. 1059, 1061. In the same case it was said, "That the police power may be exercised concurrently by the *Page 57 state and a municipality is a general rule of law recognized almost everywhere."
"While ordinarily municipal corporations in matters appertaining to police regulations enjoy substantially the entire police power of the state, in so far as regards matters of local concern, there is a distinction to be made between the general police power of a sovereign state and the delegated police powers of a municipal corporation. * * * The police powers of municipal corporations are limited to subjects of local affairs or local concerns." 43 C.J. page 204, sec. 203.
The legislative powers authorizing Montana municipal corporations to exercise police powers, particularly in the matter of issuing licenses, is granted by express legislative Acts. Section 5039, Revised Codes, provides: "The city or town council has 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."
This court, in State ex rel. Altop v. City of Billings,79 Mont. 25, 255 P. 11, 13, having under consideration the question as to whether a license should be issued to an applicant, held that the business of conducting a rooming house, although a legitimate one, is so far concerned with the public health, morals and welfare of the public, that it is within the police power of the city to regulate it under the authority conferred by this section, denominated the "general welfare clause."
It was held in State ex rel. Moreland v. Police Court,87 Mont. 17, 22, 285 P. 178, that notwithstanding repeal of the state prohibition laws, a city has the power to prohibit by ordinance, traffic in intoxicating liquors under its general powers granted it by this section, and the specific provision of section 5039.25 under which it may pass ordinances to prevent acts or conduct *Page 58 calculated to disturb the public peace or which are offensive to public morals.
Again this court, in State ex rel. City of Butte v. Police Court, 65 Mont. 94, 210 P. 1059, in construing section 5039, Revised Codes, held that the statute creating a municipality, or under which it exists, is the charter of its powers, and it has only such authority as is conferred expressly and such as is necessarily implied or is indispensable in order properly to accomplish the purpose of its organization.
Section 5039.2, Revised Codes, provides: "A city or town council has power: To license all industries, pursuits, professions, and occupations, and to impose penalties for failure to comply with such license requirements." This section of the statute clearly vests the power in the municipal authorities of the state to license occupations and certainly conducting a retail saloon is an occupation.
The legislature has further provided by section 5039.3 that, "The city or town council has power: To fix the amount, terms and manner of issuing and revoking licenses; but the council mayrefuse to issue licenses when it may deem it best for the publicinterests."
I think the conclusions of the court in the McCarten cases, cited by the majority, in interpreting the amendments to the liquor laws, invaded the implied constitutional powers of municipalities. The whole system of American government is grounded upon the right of the people to control their local affairs — Home rule. In 11 Am. Jur. under the head of Constitutional Law, page 934, et seq., sections 223 and 224, it is said:
"It is a well-settled rule, supported with practical unanimity by the authorities, that the general doctrine prohibiting the delegation of legislative authority has no application to the vesting in political subdivisions of powers to govern matters which are local in scope. * * * The constitutional maxim which prohibits the legislature from delegating its power to any other body or authority is not violated by vesting municipal corporations with certain powers of legislation as to matters purely of *Page 59 local concern of which the parties immediately interested are supposed to be better judges than the legislature."
And again the same authority says, in section 256 on Constitutional Law, page 988: "The general authority of the legislature to enact regulations in the exercise of the police power may, in matters of local concern, be delegated to the appropriate municipal corporation or political subdivision. Since this power resides in the state in its sovereign capacity, it can be possessed and exercised by a municipal corporation, technically speaking, only when delegated to it by the lawmaking power of the state, either expressly or by necessary implication, because from a purely technical standpoint, a municipal corporation has no inherent power to enact police regulations. Nevertheless, the power appears to be impliedly granted to every municipal corporation from the mere fact of its organization as a governmental subdivision."
Every municipality upon its incorporation is vested, by the statutes cited above, with such police powers as are essential to its efficient discharge of the functions of local self-government, and such powers are safeguarded by numerous constitutional provisions. The statutes mentioned have not been repealed and I am convinced that anyone who attempted to have them repealed might be commended for his audacity but not for his wisdom. Section 36 of Article V of the Constitution prohibits the legislature from enacting any law by which any power is vested in any "special commission * * * to perform any municipal function whatever." This constitutional provision and others are ample authority to uphold the contention that the State Liquor Board cannot be empowered to issue to any one a liquor license and deny the local authorities the right to exercise the veto power authorized by section 5039.3, Revised Codes.