Stephens v. City of Great Falls

• Citation: 175 P.2d 408,119 Mont. 368
• Decision Date: 10 December 1946
• Docket Number: 8658.
• Parties: STEPHENS v. CITY OF GREAT FALLS et al.
• Court: United States State Supreme Court of Montana

175 P.2d 408

119 Mont. 368

STEPHENS v. CITY OF GREAT FALLS et al.

No. 8658.

Supreme Court of Montana

December 10, 1946

Appeal from District Court, Eighth District, Cascade County; C. F Holt, Judge.

Action by A. C. Stephens against the City of Great Falls and others for a declaratory judgment suspending two city ordinances repealing ordinances limiting the number of retail beer and liquor licenses to be issued in such city. From a judgment of dismissal, plaintiff appeals.

Reversed with directions, and cause remanded.

H. C. Hall, of Great Falls, for appellant.

Charles Davidson, H. R. Eickemeyer, and Murch & Wuerthner, all of Great Falls, for respondent.

ADAIR Justice.

Action by A. C. Stephens, plaintiff, against the defendants City of Great Falls, Montana, and the mayor, clerk and members of the city council thereof seeking a declaratory judgment declaring the suspension of two certain city ordinances purporting to repeal the provisions of two earlier ordinances limiting the number of retail beer licenses and of retail liquor licenses to be issued in said city. From a judgment dismissing the complaint after sustaining defendants' general demurrers thereto the plaintiff appeals.

The complaint shows the following facts:

Section 5 of Ordinance No. 845 of the City of Great Falls limits the number of retail beer licenses to be issued in said city to one license for every 675 of population, or major fraction thereof, in said city.

Section 5 of Ordinance No. 846 of the city limits the number of retail liquor licenses to be issued in said city to one license for every 1000 of population, or major fraction thereof, in said city.

On August 13, 1945, the city council of Great Falls passed and the mayor approved city ordinances Nos. 931 and 932.

Ordinance No. 931 provides for the repeal of section 5 of Ordinance No 845 limiting the number of beer licenses while Ordinance No. 932 provides for the repeal of Section 5 of Ordinance No. 846 limiting the number of liquor licenses to be issued in the city.

On September 12, 1945, and within thirty days after the passage of the repealing ordinances, a petition was filed with the defendant city clerk addressed to the city council and signed by more than five per cent. of the qualified electors of Great Falls demanding that, pursuant to sections 5061 to 5067, inclusive, Revised Code of Montana, 1935, there be submitted to the electors of the city a referendum on the repealing ordinances, Nos. 931 and 932.

In the year 1945 the number of retail beer licenses to be issued under Ordinance No. 845 was limited to 44 and the number of retail liquor licenses to be issued under Ordinance No. 846 was limited to 30, and the maximum number of retail beer licenses and the maximum number of retail liquor licenses had been issued by the city clerk of the defendant city prior to the passage of the repealing ordinances.

The plaintiff is a citizen of the United States and of the state of Montana, a citizen, resident and taxpayer of the city of Great Falls, and, as such, entitled to vote at all elections held within said city. He is also on of the signers of the aforementioned petition and brings the action in his own behalf and in behalf of all other citizens and electors of the defendant city who may desire to join with him in seeking the relief for which he prays.

The complaint recites that the defendants are uncertain as to whether the filing of the petition with the city clerk effects a suspension of the repealing ordinances; that after September 12, 1945, defendants will be compelled 'to either issue such additional licenses for the sale of beer and liquor at retail as may be applied for or to defend a multitude of actions which will be brought to compel the issuance of such licenses;' that 'to avoid such litigation and in order to have a proper, definite and certain interpretation of the laws of Montana and the ordinances of the city of Great Falls in respect aforesaid for the guidance of the electors and officials of said city, plaintiff requests that the Court declare by its judgment herein that * * * upon the filing of the petition aforesaid * * * the operation of Ordinances No. 931 and No. 932 was in all respects suspended and that such suspension continues until said Ordinances have been accepted by the electors of said City at an election held for such purposes, and for a period of five days after the vote of acceptance has been officially announced.'

It is well settled that the granting of licenses to carry on particular businesses, occupations, trades or callings is an attribute of the sovereignty of the state and one which, under our Constitution is exercised by the legislative department of the state. Possessing this power, the legislative department may, by general or special enactment, delegate same to other agencies of the government.

There is no principle of law better established than that a city has no power, except such as is conferred upon it by Legislative grant, either directly or by necessary implication. City of Helena v. Kent, 32 Mont. 279, 80 P. 258, 4 Ann.Cas. 235; Lazich v. City of Butte, Mont., 154 P.2d 260. Resting as it does upon legislative grants the legislative branch of the government may, at its pleasure, modify or withdraw the power so granted. 'It may, if it chooses, repeal any charter, or any law under which municipalities may be created, and destroy any municipal corporation at its will and pleasure.' Brackman's v. City of Huntington, 126 W.Va. 21, 27 S.E.2d 71, 73.

Section 4955, Revised Codes of 1935, being section 3202 of the 1907 Codes, provides 'A city or town is a body politic and corporate, with the general powers of a corporation, and the powers specified or necessarily implied in this chapter, or in special laws heretofore enacted.'

Section 5039.2, Revised Codes of 1935, being subdivision 3, section 3259 of the 1907 Codes, provides: 'The 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.'

Section 5039.3, Revised Codes of 1935, being subdivision 4, section 3259 of the 1907 Codes, provides: 'The city or town council has power: To fix the amount, terms and manner of issuing and revoking licenses; but the council may refuse to issue licenses when it may deem it best for the public interests.'

Prior to the effective dates of the 18th Amendment to the United States Constitution and of Chapter 175, Laws of 1917, enacted by a referendum vote of the people of the state of Montana at a general election held November 7, 1916, the liquor business in Montana was conducted in much the same manner as any other business under the competitive system, being subject to such regulations as were established from time to time by the lawmaking bodies and the municipalities operating under the general powers granted by sections 3202 and subdivisions 3 and 4 of section 3259 of the 1907 Codes, now sections 4955, 5039.2 and 5039.3, Revised Codes, to license generally industries, pursuits, professions and occupations.

'Primarily, intoxicating liquors and the liquor traffic are subject to the police power of the several states, to which the power, together with the mode of its exercise and full police authority to make it effective, is reserved.' 30 Am.Jur., Intoxicating Liquors, p. 264, sec. 22.

The ushering in by a referendum vote of the people of state-wide prohibition, and the adoption of the 18th Amendment to the Federal Constitution made a radical change in the theretofore existing policy of the state with respect to the liquor business, Chapter 175, Laws of 1917, specifically providing for the repeal of all acts in conflict therewith and 'particularly all laws of this State and all ordinances of cities and towns relating to the issuance of liquor licenses.' Thus by their referendum vote effective from and after the 31st day of December, 1918, did the people of the state of Montana expressly repeal 'all ordinances of cities and towns relating to the issuance of liquor licenses' as well as the power granted municipalities to issue such licenses, thereby divesting the municipalities of the power to license the sale of liquor under the general statutes, namely, sections 5039.2 and 5039.3, Revised Codes, supra.

Municipalities may only exercise powers not in conflict with general law, unless the power to do so is plainly and specifically granted. Brackman's v. City of Huntington, supra.

Section 4958, Revised Codes of 1935, being section 3205 of the 1907 Codes, provides that a city 'has such other powers as are incident to municipal corporations not inconsistent with the laws of the United States or the state.' (Emphasis ours.)

Prohibition continued as the public policy of Montana from December 31, 1918, until another most radical change in the policy of the state was effected by the enactment by the 1933 legislature of the State Liquor Control Act of Montana, Chapter 105, Laws of 1933, and of the Montana Beer Act, Chapter 106, Laws of 1933.

The State Liquor Control Act, Chapter 105, Laws of 1933, constituted the state board of examiners, comprising the governor, attorney general and secretary of state, as the 'Montana Liquor Control Board' with the power and duty of administering the Act. The power to issue liquor licenses of which the cities and towns were divested by the referendum vote of the people at the election of November 7, 1916, Chapter 175, Laws of 1917, was not restored by the original State Liquor Control Act, Chapter 105, Laws of 1933.

In 1937 the legislature enacted Chapter 84, Laws of 1937, providing for sales at retail of intoxicating liquors and wines under licenses to be granted by the ...