Montana Attorney General Opinion 15-145

Opinion No. 145 Cities and Towns-O",Iinances-Beer- Vendol'S - Licenses -State Boal'd of Equalization. HELD: A city 01' town may not by ordinance or resolution limit the num- ber of licensed beer vendors that may operate within its borders to a lesser number than fixed by law and dul~' licensed by the State Boanl of Equali- zation. . April 10, 1933. We are in receipt of your inquiry re- garding the power, or want of it, of the town of ·Wibaux, in the matter of li- censes under the Deer Act, so·callecl. (Chapter 106, Laws of 1!)33). Speaking in a negative way and as succinctly and directly as possible, it is our view that the town may not by ordinance or resolution interfere with or circum!;cribe the powers of the State Boarel of Equalization when lawfull~' exercised under the Act. In other words. were the Board in the propel' perform- auce of its duties to issue a license to each of two retailers and licenses to wllolesalers and proprietors of hotel!; and restaurants, whose places of busi- ness are within the town, it (the town) eould not do otherwise than bring its ordinance into conformity with \"hat the Board has done or may do. The BOHnl pal'!ses on the moral character and general qualifications of each ap- I)licant for a license. The town is con- fined to mere regulation of the busi- ness and the issuance of a license to a person who already possesses a state license. It cannot prevent him from continuing in business hy merely refus- ing him a license in the first instance. A different construction of the law, which after all is a revenue measure, would put it in the power of any city 01' town to nullify its provisions within its own geographical limits and there- by produce, perhaps, an unseemly eon- fliet of authority between state and muniCipal authorities.