Montana Attorney General Opinion 17-113

Opinion No. 113. Liquor Control Board-Hours for Sale of Beer-Regulations of. HELD: The Montana Liquor Con- trol Board may not regulate the hours for sale of beer. Mr. Robert H. Allen County Attorney Virginia City, Montana Dear Sir: June 17. 1937. You have submitted to this office the inquiry as to whether or not the Liq- uor Control Board of the State of Montana has the power to pass a regulation restricting the hours dur- ing which beer can be sold. It appears that the Liquor Control Board has made Rule and Re!lulation No. 22. re- stricting the sale of heer. upon prem- ises where the sale of liquor is had, after 2 a. m. From the information available, we are advised that the Liquor Control Board has not made any regulations for fixing the hours of the sale of beer, where establishments have only a beer license, but has issued a regu- lation fixing the hours of sale of beer and liquor. Section II, of Chapter 84, of the 1937 Session Laws, relating to the sale of liquor at retail in the State of Mon- tana, provides: "That no liquor shall be sold at retail during the following hours: Sunday, from two a. m. to one p. m.; On any other day between two a. m. and eight a. m." The Act also provides that an in- corporated town can further restrict the sale of liquor. Section 9 of Chapter 84 provides that no person shall have a retail liquor license unless he has a beer license. Section 2, of Chapter 84, defines "liquor" as meaning: "AU kinds of liquor sold by and/or in a state liquor store." Chapter 89 of the 1937 Session Laws prohibits the sale of beer by the M on- tana Liquor Control Board. Section 22 of Chapter 84 provides: "For the purpose of administra- tion of this act the board shall make, promulgate and publish such rules and regulations as the said board may deem necessary for carrying out the provisions of this act and for the orderly and efficient administration hereof, and except as may be limited or prohibited by law anel the pro- visions of this act, such rules and regulations so made and promulgated shall have the force of statute." Subdivision (a) of Section 6. of Chapter 30, 1937 Session Laws. pro- vides that the Liquor Control Board shall administer the Montana Beer Act. Subdivision (b) of Section 6. of Chapter 30. defines beer as: "Any beverage obtained by alco- holic fermentation of an infusion or decoction of barley, malt and hops, or of any similar products in drink- able water." OPINIONS OF THE ATTORNEY GENERAL 125 It will be observed that Chapter 84, supra, fixes the hours during which liquor can be retailed, and said Chap- ter 84 defines the meaning of liquor, and the definition -of liquor does not include the definition of beer; the definition of beer being contained in Chapter 30 of said act. Chapter 84 does not attempt to fix the closing hours, or the hours during \Vhich beer can be sold. Section 22 of Chapter 84, authoriz- ing the board to make certain rules and regulations, specifically provides that the board shal1 make rules and regulations for the administration "of this act," and by "this act" the lan- guage specifical1y refers to Chapter 84, relating to the retailing of liquor. 'vVhile it is true that the board has the power to administer the Montana Beer Act, yet the administration of the beer act must be under the au- thority and provisions of the terms thereof, and to al10w the liquor board to fix the hours during which beer may be sold would be to authorize the board to legislate into the beer act something which is not contained therein. In incorporated towns or cities the hours, during which the sale of beer may be had, may be regulated and determined by ordinance, but not by any ruling or regulations of the board. The legislature, under the provisions of Chapter 84, has specifical1y pro- hibited the sale of liquor during cer- tain hours. The statutes are silent as to the hours during which beer may be sold. If the legislature had in- tended for the Liquor Control Board to prohibit the sale of beer during those particular hours it would have said so in the same specific language that it used in Chapter 84, but having remained silent in one instance and having expressed itself in the other, it is obvious that the legislature did not intend to confer this authority upon the Liquor Control Board. Therefore. it is my opinion that Regulation No. 22 of the Liquor Con- trol Board, attempting to limit the hours during which beer may be sold, is ineffective and void as far as the sale of beer is concerned.